R v Pedley

A defence which necessarily alleges that a complainant fabricated a detailed account of serious offending is an attack on that person’s character. It is not merely an emphatic denial. The defendant’s bad character may therefore be admitted under Criminal Justice Act 2003, section 101(1)(g), subject to the statutory fairness safeguard and clear directions against propensity reasoning.

Evidence of a non-defendant witness’s bad character is inadmissible unless it satisfies the stringent requirements of section 100. Evidence that does not bear substantially on a live issue must be excluded. Article 7 is not breached by a later sentencing regime unless it imposes a heavier penalty than was available when the offence was committed.

The applicant was convicted at the Crown Court at Wood Green of two counts of rape. The prosecution case was that he carried the complainant upstairs, used force against her and raped her. His case was that there had been no sexual contact and that the complainant’s account was fabricated.

The trial judge admitted the applicant’s convictions for wounding and burglary after holding that the defence attacked the complainant’s character. The judge refused the defence permission to question AS, a complaint witness, about her reluctance to attend court and lies told to avoid doing so. The applicant received an extended sentence of 14 years’ imprisonment, comprising nine years’ custody and a five-year extension period.

The applications for leave challenged those evidential rulings and the compatibility and length of the sentence.

1. The applications for leave to appeal against conviction and sentence were refused.

2. The defence case necessarily alleged that the complainant had fabricated an elaborate account of abduction, force and rape. That was a significant attack on her evidence and character, even though counsel did not put the allegation in stark language. It was therefore an attack within sections 101(1)(g) and 106 of the Criminal Justice Act 2003. The court followed R v Hanson [2005] EWCA Crim. 824 and the distinction drawn in R v William Jones.

3. The admission of the applicant’s convictions was not unfair under section 101(3). None was a sexual conviction, and the judge gave an appropriate direction that they could be used only in assessing the credibility of a defendant who had impugned the complainant’s character. The jury were expressly prohibited from using them as evidence of propensity or as a source of prejudice. The absence of a prior warning to defence counsel was not fatal: R v Benson (1910) 3 Cr.App.R 70.

4. The proposed evidence concerning AS failed the section 100 admissibility requirements. The precise timing of the complainant’s first complaint was not an issue of substantial importance, because on either account she had had hours in which to invent a false allegation. AS’s reluctance to attend court did not provide important explanatory evidence or substantial probative value. Although section 98(b) is not confined to misconduct by prosecuting authorities, the proposed questioning was irrelevant to the live issues and was properly prohibited.

5. Article 7 of the European Convention on Human Rights was not engaged. Applying R (on the application of Uttley) v Secretary of State for the Home Department [2004] UKHL 38, the relevant question was whether the later regime imposed a heavier penalty than was available when the offences were committed. As rape then carried a maximum sentence of life imprisonment, the extended sentence was necessarily less heavy. The later release provisions were irrelevant to fixing the proper custodial term: R v Dunn [2012] EWCA Crim. 419.

6. The nine-year custodial term was not manifestly excessive. The court took account of the two rapes, the force and abduction involved, the applicant’s serious previous violence, the impact on the complainant, and the applicable guideline range.

• Court of Appeal (Criminal Division) Refused the applications for leave to appeal against conviction and sentence.
• Crown Court at Wood Green Convicted the applicant on 10 January 2013 of two counts of rape and, on 8 March 2013, imposed an extended sentence of 14 years’ imprisonment.