Imiela, R v

Evidence of previous rape convictions may be admitted under section 101(1)(d) of the Criminal Justice Act 2003 where it is relevant to propensity on a live issue, including consent. The court must consider the elapsed time under section 101(4), but delay does not necessarily deprive the evidence of probative value, particularly where imprisonment accounts for part of it.

Admission remains subject to section 101(3). It is permissible where the trial judge has considered the relevant circumstances and a properly directed jury can assess the evidence for its probative value without unfair prejudice.

The applicant was convicted at the Central Criminal Court of rape, indecent assault and buggery arising from an attack in 1987. DNA recovered from the complainant matched him after a cold-case review. The complainant had since died, but her contemporaneous witness statement was admitted.

The prosecution also relied on the applicant's 2003 convictions for seven rapes as bad-character evidence. His case was that intercourse with the complainant had been consensual and that anal intercourse had not occurred. The trial judge admitted both the deceased complainant's statement and the later convictions.

A single judge refused permission to appeal. On renewal, the applicant abandoned his challenge to the admission of the witness statement under section 116 of the Criminal Justice Act 2003. The remaining issue was whether the 2003 convictions had been properly admitted.

1. The renewed application for permission to appeal was refused. The trial judge was entitled to admit the applicant's 2003 rape convictions as bad-character evidence.

2. Under section 101(1)(d) of the Criminal Justice Act 2003, the convictions were relevant to an important issue between the parties. They were capable of demonstrating a propensity to commit rape and of rebutting the applicant's assertion that the complainant had consented. They also bore on his denial that buggery had occurred.

3. The period between the 1987 offences and the later rapes was significant and required consideration under section 101(4). It did not make the evidence inadmissible. The applicant had spent some intervening years in prison for serious offences, which reduced the force of the delay objection.

4. The judge had considered both admissibility and the discretion to exclude under section 101(3). The Court of Appeal found no error in his conclusion that admission would not have such an adverse effect on trial fairness that exclusion was required.

5. The 2003 complainants did not need to give live evidence. In their trials it was not disputed that they had been raped; the applicant disputed identity. An appropriate summing-up could ensure that the jury considered the convictions for their probative value and guarded against unfair prejudice. The directions given were unchallenged and adequate.

• Court of Appeal (Criminal Division): The renewed application for permission to appeal against conviction was refused: [2013] EWCA Crim 2171.
• Single judge: Permission to appeal was refused.
• Central Criminal Court: The applicant was convicted of rape, indecent assault and buggery and sentenced to a total of 12 years' imprisonment.