Latham, R v

Under section 101(1) of the Criminal Justice Act 2003, convictions for making or possessing indecent images of children may demonstrate a sexual interest in children and may be relevant propensity evidence. Admissibility remains fact-specific and is not automatic. Sparse details of the earlier offences did not prevent relevance where the complainant, although technically an adult, was an immature teenager known to the defendant as a child.

A defendant who volunteers significant attacks on prosecution witnesses in interview cannot require the interview to be edited to avoid the consequences for bad-character evidence. Such attacks may go beyond a robust denial and support admission through the witness-character gateway. Fairness must be assessed for both prosecution and defence, with proper jury directions controlling the use of the evidence.

The appellant was convicted at Manchester Crown Court of indecent assault on a male. The complainant alleged that, in 2000 or 2001, the appellant assaulted him when he was a vulnerable and immature teenager. The appellant denied the allegation and, in interview, made extensive allegations about the truthfulness and character of the complainant and other prosecution witnesses.

Before trial, the Recorder admitted the appellant's convictions for making or possessing indecent images of children as bad-character evidence. The appellant appealed against conviction, contending that the convictions lacked a sufficient connection with the alleged assault and that the interviews should have been edited. He also renewed an application for leave to appeal against his ten-month immediate custodial sentence.

The conviction appeal was dismissed. The renewed application for leave to appeal against sentence was refused.

1. The Recorder was entitled to admit the previous convictions under gateway (d) of section 101(1) of the Criminal Justice Act 2003. The proper questions were whether the history established a propensity to commit offences of the kind charged, made the present allegation more likely, and whether reliance on it would be unjust. Although fuller information about the images would have been preferable, the available information was capable of showing a sexual interest in children.
2. The complainant may technically have been an adult, but he was an immature teenager whom the appellant, seventeen years his senior, had known since childhood. The court held that the appellant must have viewed him as a child. The evidence was therefore potentially relevant. This was consistent with the fact-sensitive approach in R v D, R v P, R v U [2012] 1 Cr.App.R 8.
3. Gateway (g) independently justified admission. The appellant's volunteered allegations that the complainant and other witnesses were liars, mentally ill, vindictive, promiscuous, or part of a conspiracy were substantial attacks on their character. They went beyond a robust denial. The prosecution was entitled to place the appellant's reaction to the accusations before the jury, and the defence could not avoid that consequence merely by proposing edits to the interviews.
4. The Recorder had exercised the discretion fairly. Fairness concerned both parties, and clear jury warnings limited the use of the convictions. Their admission had not adversely affected the fairness of the proceedings or undermined the safety of the conviction.
5. The sentencing exercise was unimpeachable. The Recorder had considered mitigation and rehabilitation, but the offence involved a vulnerable and damaged complainant, a breach of trust, and an assault which invoked his earlier sexual abuse. Ten months' immediate imprisonment was inevitable.

• Court of Appeal (Criminal Division) — In [2014] EWCA Crim 207, the court dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.
• Manchester Crown Court — On 3 October 2013, the appellant was convicted by a majority of indecent assault on a male. On 14 November 2013, he was sentenced to ten months' imprisonment.