Wynes, R. v

Evidence of a defendant’s earlier possession of indecent images of children may be admitted as bad-character evidence where it is relevant to whether a complainant’s sexual allegations are truthful. Its proper use is as part of the evidential assessment, not as proof that the defendant must have committed the charged offences.

A basis of plea accepted or not challenged in an earlier criminal case creates no issue estoppel. The later jury may therefore assess the defendant’s explanation for the earlier conduct, subject to careful directions and the trial judge’s discretion to balance probative value against unfair prejudice.

The appellant was convicted at the Crown Court at Taunton of six counts of rape and three counts of assault by penetration against A, who had been aged 10 when concerns first arose.

The prosecution had been permitted to adduce his 2009 conviction for possessing an indecent image of a child. The image file depicted sexual activity involving young girls. The appellant’s earlier basis of plea was that he had inadvertently downloaded the file while seeking a television programme and had unsuccessfully tried to delete it.

On appeal, he contended that the conviction should not have been admitted and that the summing-up improperly invited the jury to go behind the basis of plea. He also relied on late service of parts of the bad-character application.

1. Appeal dismissed. The convictions were safe. The trial judge was entitled to admit the 2009 conviction and to direct the jury as he did.
2. The evidence was relevant to the central issue: whether A’s allegations were truthful. Possession of the file could, if the jury rejected or was not sure of the appellant’s explanation, support an inference that he had an inappropriate sexual interest in young girls. It could therefore assist the jury in assessing A’s account.
3. The court applied the reasoning in R v Z [2000] 2 AC 283. Evidence concerning earlier allegations or conduct may be used for its probative force in deciding the charge being tried; its admission does not require the later jury to determine guilt afresh of the earlier matter.
4. The judge’s directions sufficiently confined the evidence. He told the jury that the conviction was background, that they must consider the appellant’s explanation, and that they must not convict merely because he had previously possessed the images. The carefully drafted admissions also placed before the jury the favourable earlier expert evidence and the basis of plea.
5. There was no issue estoppel in English criminal law arising from the prosecution’s acceptance, or failure to challenge, the 2009 basis of plea. Nor was this a double-jeopardy case. The appellant could not be resentenced for the earlier offence, but the underlying misconduct could be admitted in the later trial.
6. The complaint about lateness failed. The defence had several months’ notice of the intended application, did not seek an adjournment, and identified no practical prejudice that further time or material would have remedied.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2014] EWCA Crim 2585.
• Crown Court at Taunton: on 31 March 2014, following a jury trial before His Honour Judge Ticehurst, convicted the appellant of six counts of rape and three counts of assault by penetration.