Powell, R. v

Severance under section 5(3) of the Indictments Act 1915 remains governed by the Ludlow discretion. A separate trial is required only where a special feature of a joint trial would prejudice or embarrass the defence and severance is required in the interests of justice.

Cross-admissibility between counts is a separate question. The wider statutory rules on bad-character evidence do not make cross-admissibility a condition of joinder or displace the severance test. The court may also consider the improbability of coincidence as a distinct evidential consideration. Proper directions requiring each count to be considered solely on its own evidence may prevent any resulting unfairness.

R v Powell concerned an application for leave to appeal against convictions for the murder of Caroline Coyne and sexual offences against Ms P. The two incidents occurred about a month apart in the same Nottingham area.

At trial before Flaux J in the Crown Court, the applicant sought severance of the murder count from the counts concerning Ms P. The application was refused. The judge later declined to permit cross-admissibility between the allegations and directed the jury to decide each count only on its own evidence. The jury convicted on all remaining counts.

The central issue was whether the refusal to sever made the convictions unsafe.

1. The application for leave to appeal against conviction was refused.

2. The counts were properly joined under the Criminal Procedure Rules. They formed a series of offences of the same or similar character. Their temporal and geographical proximity, the victims’ shared characteristics, the alleged sexual motivation, the use of restraint around the throat, and the applicant’s admitted proximity to each victim were significant similarities.

3. The discretion to sever under section 5(3) of the Indictments Act 1915 remained governed by Ludlow v Metropolitan Police Commissioner [1971] AC 29. The judge was not required to order separate trials unless a special feature made the joint trial prejudicial or embarrassing to the defence and severance was required in the interests of justice. The applicant properly conceded that, if that test governed, the case did not meet it.

4. Cross-admissibility and severance arose under separate statutory regimes. Sections 101 and 103 of the Criminal Justice Act 2003 had widened the circumstances in which evidence might be cross-admissible, but they had not superseded Ludlow or made cross-admissibility the yardstick for severance. It remained relevant, but was not determinative.

5. The improbability of coincidence was a separate and relevant consideration. The trial judge could have directed the jury to consider it while still requiring separate consideration of each count. Instead, the judge gave a generous direction preventing the jury from using evidence relating to one complainant to bolster the case on another count. There was therefore no unfairness making the convictions unsafe.

• Court of Appeal (Criminal Division) — refused the application for leave to appeal against conviction: [2014] EWCA Crim 642.

• Crown Court at Nottingham — Flaux J and a jury convicted the applicant of murder and the remaining sexual-offence counts in October 2012. The judge imposed life imprisonment for murder with a minimum term of 20 years, with concurrent sentences for the other offences.