Green v R

A trial judge should not ordinarily direct a jury that a complainant has no criminal history or reputation for untruthfulness in order to create a supposed level playing field with an accused of good character. Such a direction waters down the protection afforded by a good-character direction and reduces, to that extent, the Crown’s burden of proof.

A summing-up must also fairly present material evidence bearing on credibility. Directions which endorse a complainant’s explanation for discrepancies in agreed medical records, or overlook evidence supporting the defence, may render a conviction unsafe when credibility is central. The cumulative effect of material imbalance, rather than any single error alone, may require the conviction to be quashed.

The appellant was convicted in the Crown Court at Inner London of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. He was acquitted of three counts of unlawful sexual intercourse with a girl under 16 contrary to section 5, and a further such count had been withdrawn from the jury by direction.

The case depended principally on the credibility of the complainant, the appellant’s half-sister, and the appellant’s denial. The appellant appealed against conviction on grounds concerning the summing-up and the taking of the jury’s final verdicts. The principal issues were whether the judge’s directions improperly enhanced the complainant’s credibility and failed fairly to reflect evidence favourable to the defence.

1. Appeal allowed. The court quashed the conviction for indecent assault and refused the Crown’s application for a retrial.

2. The judge’s direction that there was no suggestion that the complainant had been in trouble with the police, committed offences or had a reputation for untruthfulness was a material error. A good-character direction gives an accused a procedural protection concerning both credibility and propensity. Except in a very exceptional case, a judge should refrain from treating a Crown witness’s assumed good character as creating a level playing field. That approach watered down the protection given to the accused and, to that limited extent, reduced the Crown’s burden of proving guilt beyond reasonable doubt.

3. The summing-up also unfairly favoured the complainant on material issues of credibility. The judge’s comments on the agreed medical records invited the jury to discount records which did not support the complainant’s account, despite the absence of evidence that the records were inaccurate. The judge additionally endorsed an explanation based on the complainant having authorised police access to the records.

4. The treatment of the evidence about periods when the appellant’s mother was present at the home did not adequately reflect the defence case that her evidence undermined the opportunity for the alleged earlier abuse. The directions tended to undermine the appellant’s credibility while enhancing that of the complainant.

5. Credibility was the central issue. Taken cumulatively with the erroneous character direction, the defects in the summing-up rendered the sole surviving conviction unsafe. It was therefore unnecessary to decide the separate ground concerning the circumstances in which the jury returned its final verdicts.

• Court of Appeal (Criminal Division): Allowed the appeal in [2017] EWCA Crim 1774, quashed the conviction and refused a retrial.
• Crown Court at Inner London: On 23 March 2017, convicted the appellant of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956; he was conditionally discharged for 12 months on 24 March 2017.