Hodge, R. v

A defendant’s account that the complainant committed a sexual assault does not require the jury to treat the defendant and complainant identically. Where the account is advanced as an explanation for incriminating evidence, the trial remains concerned with whether the prosecution has proved its case beyond reasonable doubt. The adequacy of jury directions must be assessed in their full context.

For the purposes of the application, statements admitted under section 120(2) of the Criminal Justice Act 2003 could be substantive evidence of matters stated. A direction to assess the accuracy and reliability of those witnesses was adequate on the facts, and no further direction was required where a fuller direction would also require material caveats.

The applicant was convicted at Birmingham Crown Court of two rapes, assault by penetration and two sexual assaults against B, and was sentenced to 11 years’ imprisonment. He sought leave to appeal against conviction.

His defence was that B had masturbated him without consent while he was asleep, which he advanced to explain the presence of his semen on a sofa cushion. He contended that the judge should have given an equivalent anti-stereotyping direction in respect of his allegation against B. He also challenged the treatment of evidence from his wife and colleague that he had later told them of that allegation.

The single judge had partly refused leave and adjourned the balance to the full court. The central issue was whether the summing up made the convictions arguably unsafe.

1. The application for leave to appeal against conviction was refused. Neither ground disclosed an arguable misdirection or an arguable basis on which the convictions were unsafe.

2. The trial concerned charges brought against the applicant. B was the complainant, and the applicant’s allegation against her was not a complaint made to the police but a later explanation for forensic evidence. The parties therefore did not have to be treated identically. The jury had repeatedly been directed that the burden lay on the prosecution and that it had to be sure of B’s account. The judge had also fairly set out the applicant’s response to each allegation. No further warning against assumptions about B as an alleged sexual offender was required.

3. The court accepted, for the purposes of the application only, that section 120(2) of the Criminal Justice Act 2003 applied and that “witness” could include a defendant. Thus, if accepted, the applicant’s previous statements to his wife and colleague could be evidence that B had sexually assaulted him. Section 120(4) was unavailable because the condition in section 120(7)(b) was not satisfied.

4. The direction requiring the jury to assess the accuracy and reliability of the wife’s and colleague’s evidence was adequate. If the jury accepted that evidence, they would take it into account in the applicant’s favour when assessing his account. A more elaborate direction would necessarily have required caveats, including the timing of the statements after the applicant knew B’s account to the police. The evidence against the applicant was strong, and his explanation for the forensic evidence was inherently improbable. The verdicts were not arguably unsafe.

• Court of Appeal (Criminal Division): in [2018] EWCA Crim 2501, refused the application for leave to appeal against conviction.
• Single judge: partly refused leave and adjourned the remaining grounds to the full court.
• Crown Court at Birmingham: on 22 June 2015, the applicant was convicted of two rapes, assault by penetration and two sexual assaults; on 30 June 2015, he was sentenced to 11 years’ imprisonment.