PP, R. v

In assessing whether deficiencies in a summing-up render convictions unsafe, the court must consider the omissions in the context of the issues actually raised at trial. A jury should ordinarily be directed that long delay may impair a defendant’s ability to recall specific events; that discussion between complainants may create a risk of inadvertent convergence of evidence, distinct from deliberate collusion; and that genuine distress on disclosure does not itself establish the truth of an allegation.

Those omissions will not make a conviction unsafe where they had no real significance to the live issues and the jury were properly able to determine the central conflict.

The appellant was convicted at Cardiff Crown Court of 15 counts of incest concerning alleged sexual abuse of his two daughters during their teenage years. He was sentenced to 16 years’ imprisonment.

His defence was that both complainants had fabricated their allegations, potentially through resentment and deliberate collusion. He appealed against conviction on the basis that the Recorder’s summing-up inadequately addressed the effect of historic delay, the risk of inadvertent contamination after discussion between the complainants, and the evidential significance of distress shown on disclosure.

The central issue was whether those deficiencies made the convictions unsafe.

1. Appeal dismissed. The court accepted that the summing-up should have contained better directions on each of the three matters advanced. However, viewed in the context of the trial, none of the omissions made the convictions unsafe.

2. In a historic sexual abuse case, a jury should be told that delay may make it difficult for a defendant to remember the details of particular incidents after many decades. Here, however, the defence was a direct denial and alleged deliberate fabrication by the two complainants. The decisive issue was whether the abuse happened at all, rather than conflict about its detailed incidents. The omitted direction therefore had substantially reduced significance.

3. The jury should also have received a short direction about the distinct risk of non-deliberate contamination or convergence of evidence where complainants discuss allegations before reporting them. Such a risk can arise even where witnesses seek to be honest. On the facts, it was not a live explanation advanced by either party. The defence alleged deliberate collusion, while the prosecution relied on genuine independent recollections. The omission could not render the convictions unsafe.

4. The Recorder should have made clear that, although genuine distress on disclosure was evidence capable of consideration, it did not by itself prove that the complaint was accurate or genuine. That omission likewise lacked sufficient significance, in the context of the issues and evidence, to affect the safety of the verdicts.

5. The court expressed serious concern that counsel had not been given detailed draft directions or an adequate opportunity to discuss the proposed legal directions before the case was left to the jury. A proper pre-summing-up process would probably have identified and corrected the deficiencies.

• Court of Appeal (Criminal Division): appeal against conviction dismissed in [2018] EWCA Crim 1300.
• Cardiff Crown Court: the appellant was convicted on 9 November 2017 of 15 counts of incest and sentenced on 15 December 2017.