Richards, R. v

Evidence relating to one count may be cross-admissible as bad-character evidence where the jury are first sure of that count and are also sure that it establishes a relevant propensity. The evidence may then provide support, but not a sole or main basis, for deciding another similar count.

Later misconduct can, in principle, support an inference of an earlier propensity. The court must decide whether the inference is legitimate rather than speculative, having particular regard to the time between the alleged events. Evidence of prior convictions may be admissible where it is relevant to an important issue and does not unfairly prejudice the trial.

The appellant was convicted at two separate trials in the Crown Court at Birmingham of numerous historic sexual offences against young boys. The prosecutions were divided because a single trial would have been unmanageable.

At the first trial, the judge directed the jury that a conviction for voyeurism could support an inference that the appellant had a sexual interest in underage boys and could therefore support other allegations. At the second trial, the judge admitted evidence of a list found on the appellant's computer, diary entries, and selected convictions from the first trial under the Criminal Justice Act 2003.

The appeals concerned the permissibility and fairness of those bad-character directions and rulings.

1. The appeals were dismissed. The convictions from the first trial were safe. Leave to appeal was granted in respect of the second-trial convictions, but that appeal was also dismissed.
2. Cross-admissibility between counts is bad-character evidence governed by section 101 of the Criminal Justice Act 2003. The court followed the propensity route identified in R v Freeman and Crawford [2008] EWCA Crim 1863: if the jury were sure of guilt on one count and sure that it established a propensity to commit that type of offence, they could consider whether the propensity made another allegation more likely.
3. The judge was entitled to permit that route in relation to the voyeurism count. Whether the appellant had a sexual interest in young boys was an important issue. Although the voyeurism was comparatively recent, the allegations covered continuing conduct over the whole period of the indictment. Later misconduct may in principle establish a propensity relevant to earlier allegations, provided the inference is legitimate and not speculative. The lapse of time is relevant to admissibility and fairness.
4. An express warning that propensity evidence gives only support, and that conviction must not rest solely or mainly on it, would have been preferable. Its absence did not make the first-trial convictions unsafe. The jury had to assess each complainant's reliability, and their acquittals on some timing issues showed that they had not convicted merely because of other allegations.
5. In the second trial, the important-explanatory-evidence gateway was narrow and criticism of the early ruling under section 101(1)(c) had merit. That did not affect the result. The evidence admitted under section 101(1)(d) was relevant to the important issue of the appellant's sexual interest in young boys and did not create unfair prejudice. The two trials had been separated only for manageability, and the trial judge had excluded the most prejudicial categories of previous conviction and the underlying factual detail.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 2374, dismissed the appeal against the first-trial convictions and, having granted leave, dismissed the appeal against the second-trial convictions.
• Crown Court at Birmingham: First trial before HHJ Laird QC in April to June 2016 resulted in convictions for 31 offences.
• Crown Court at Birmingham: Second trial before HHJ Laird QC in September to October 2016 resulted in convictions for nine offences of indecent assault.
• Crown Court at Birmingham: On 4 November 2016, the appellant received an extended sentence for rape and a consecutive determinate sentence for misconduct in public office, with concurrent sentences on the remaining counts.