Hussain v R

Under section 100(1)(b) of the Criminal Justice Act 2003, third-party bad-character evidence is admissible only if it has substantial probative value on a matter in issue which is substantially important in the case. A witness’s creditworthiness may be such a matter. The assessment is fact-sensitive and considers, in particular, the nature, number and age of convictions; a conviction need not demonstrate dishonesty or untruthfulness. Where relevant evidence was wrongly excluded, the conviction nevertheless remains safe if the appellate court is satisfied that its admission could have had no significant impact on the issues the jury had to decide.

Following a first trial in which the jury could not agree, the appellant was retried at Peterborough Crown Court and convicted of rape contrary to section 1(1) of the Sexual Offences Act 2003. He received six years’ imprisonment and a restraining order.

The prosecution case was that the complainant, N, was raped while intoxicated and asleep after a party. The appellant denied intercourse. He said that N had made sexual advances and had masturbated him. Scientific evidence was capable of being consistent with either account.

The trial judge refused the defence permission to cross-examine N about her previous convictions under section 100 of the Criminal Justice Act 2003. The appeal concerned whether those convictions had substantial probative value on her creditworthiness and, if they should have been admitted, whether their exclusion rendered the conviction unsafe.

1. Appeal dismissed. The trial judge erred in refusing to admit the complainant’s convictions, but the conviction was safe.

2. Section 100(1)(b) of the Criminal Justice Act 2003 requires the judge first to identify the matter in issue and whether it is substantially important in the case as a whole, and then to assess whether the proposed evidence has substantial probative value on that issue. Creditworthiness can be a matter of substantial importance. The court applied the fact-sensitive approach in Stephenson [2006] EWCA Crim. 2325, Lawson [2006] EWCA Crim. 2572, Brewster and Cromwell [2010] EWCA Crim. 1194 and Phillips [2011] EWCA Crim. 2935.

3. The judge had wrongly confined the credit issue to whether the complainant was mistaken about penetration while asleep. The competing accounts extended to whether there had been rape, consensual sexual advances by the complainant, and masturbation of the appellant. Her creditworthiness was therefore central. Her convictions were numerous, varied and recent. Although they did not demonstrate a tendency to dishonesty or untruthfulness, they had substantial probative value on whether her accusation was worthy of belief and should have been left to the jury.

4. That error did not undermine the safety of the verdict. The convictions had no connection, even tangentially, with the facts in issue. The appellant’s late account and material inconsistencies weakened his case. N’s immediate distressed complaint, her consistent account before the scientific evidence was available, the medical evidence and the evidence of other witnesses strongly supported her account. The jury could not reasonably have treated her previous offending as a ground to reject her evidence on the specific issues at trial.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2015] EWCA Crim 383.

• Peterborough Crown Court Following a retrial before His Honour Judge Nicholas Madge, convicted the appellant of rape and sentenced him to six years’ imprisonment; a restraining order was made.