Adams, R. v

In a multi-count trial, evidence of alleged offending on one count may be used on another only through a proper bad-character route. It may establish propensity, which requires the jury first to be sure of the other offending. Alternatively, independent similar allegations may reduce the likelihood of an innocent explanation without first being independently proved.

Where the prosecution has not sought to make the evidence cross-admissible, it is inadmissible on the other counts. The jury must receive clear directions on whether, and how, they may use evidence relating to another count. A direction merely to consider each count separately does not answer that question. A failure to direct may render convictions unsafe where cross-use could materially affect the verdicts.

Following a retrial at Cardiff Crown Court, the appellant was convicted of six counts of rape and eight counts of indecent assault alleged to have been committed between 1980 and 1987. He received a total sentence of 15 years’ imprisonment. He died while his appeal was pending, and his widow was permitted to continue it under section 44 A of the Criminal Appeal Act 1968.

There were two anonymised complainants. The appeal challenged, among other matters, the absence of a direction explaining whether the jury could use each complainant’s allegations when deciding the counts concerning the other. The Crown had not sought to rely on that evidence as cross-admissible bad-character evidence.

1. Appeal allowed; convictions quashed. The absence of a direction on cross-count use of the evidence rendered the convictions unsafe.
2. Evidence that a defendant committed one alleged offence may be relevant to another allegation in two distinct ways. As explained in R v Freeman [2008] EWCA Crim 1863, it may establish propensity, but only after the jury is sure that the other offending occurred. Alternatively, independent similar allegations may reduce the likelihood of an innocent explanation, without first being independently proved. The latter reasoning depends on there being no other link, such as collusion or contamination, between the allegations.
3. Both forms of cross-use involve bad-character evidence. Their admission is governed by the Criminal Justice Act 2003 and the procedure in Part 21 of the Criminal Procedure Rules. The Crown neither gave notice nor sought a ruling that the evidence of either complainant could be used on the other complainant’s counts. The limited notice concerning an uncharged incident involving one complainant did not alter that position.
4. Accordingly, the evidence concerning one complainant was inadmissible when deciding the counts concerning the other. The judge should have directed the jury to confine its consideration of each count to directly relevant evidence. A standard instruction to consider each count separately did not tell the jury whether it could use evidence from other counts. In a case where that question could significantly affect the verdicts, jurors required clear assistance on the permitted use of the evidence.
5. The court was not persuaded that the other grounds independently affected safety. It nevertheless upheld the first ground and quashed all convictions.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the convictions. The appellant’s widow continued the appeal with approval under section 44 A of the Criminal Appeal Act 1968.
• Cardiff Crown Court Following a retrial before His Honour Judge Vosper QC and a jury, convicted the appellant of six counts of rape and eight counts of indecent assault and imposed a total sentence of 15 years’ imprisonment.