Verdol, R. v

Proposed cross-examination of a child complainant about alleged prior false allegations or misconduct requires a sufficient evidential foundation. Ambiguous instructions, unsupported hearsay and an intention not to call the available witnesses will not justify placing an unresolvable allegation before a jury.

Non-defendant bad-character evidence must satisfy the statutory criteria, including substantial probative value where credit is relied on. Conversely, where the statutory gateways are open, evidence of a defendant’s bad character may properly be admitted to correct a misleading impression and answer an attack on complainants’ character. Subsequent lengthy cross-examination does not retrospectively render that discretionary ruling unfair.

The applicant was convicted at Woolwich Crown Court of two counts of rape and seven counts of child cruelty. He made a renewed application for leave to appeal against conviction after the single judge had refused leave.

He challenged rulings which prevented cross-examination of child A about an alleged staged kidnapping and false sexual-assault allegation in the Caribbean, and about an allegation by child D that A had sexually assaulted her. He also challenged the admission of evidence suggesting that his mobile telephones had been used in class A drug dealing after he had advanced an unnotified alibi and asserted his good character.

1. The renewed application for leave to appeal against conviction was dismissed. The proposed questioning of A about the alleged Caribbean kidnapping had no adequate evidential foundation. The account was ambiguous, rested on an unproduced private investigator’s material, and was unsupported by any intended witness or admissible hearsay evidence. The judge was therefore right to conclude that the statutory requirements for non-defendant bad-character evidence under Criminal Justice Act 2003 were not met.
2. The proposed questioning about D’s allegation against A was also properly excluded. Neither D nor any other direct source would be examined, yet the jury would have been invited to decide which child had lied on the sketchiest material. The allegation could amount to bad-character evidence against A, D, or both, and it lacked substantial probative value concerning D’s credit. If the questioning positively alleged sexual conduct by A towards D, the restrictions in Youth Justice and Criminal Evdience Act 1999 would also be engaged.
3. The judge was entitled, and was plainly right, to admit evidence from the applicant’s telephones. The statutory gateways under section 101(1)(f) and (g) of the Criminal Justice Act 2003 were available because the evidence corrected a potentially misleading impression created by his evidence and answered his attacks on the complainant children’s character. The greater-than-expected time spent on the resulting cross-examination did not undermine the fairness of the original discretionary ruling.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was dismissed: [2015] EWCA Crim 502.
• Crown Court at Woolwich: Before His Honour Judge Katz QC, the applicant was convicted on 3 and 4 July 2014 of two counts of rape and seven counts of child cruelty.