McChleery v R.

A defendant of absolute good character who gives evidence is entitled to a direction addressing both credibility and propensity. Whether an omitted direction makes a conviction unsafe depends on the whole case. Where the case turns on the competing accounts of the complainant and defendant, with little independent evidence, the omission is likely to be decisive. An unjustified warning to treat unchallenged positive character evidence cautiously may further undermine the fairness of the verdict.

The appellant was convicted at the Crown Court at Warwick of an indecent assault alleged to have occurred in 1996 while the complainant was resident at a children’s home. The prosecution case depended upon the complainant’s account. The appellant, who was of absolute and positive good character, denied it and gave evidence supported by his wife and character witnesses.

He appealed against conviction on grounds concerning severance, disclosure, the absence of a good character direction, and the refusal of leave to cross-examine the complainant about alleged bad character. The central issue was whether the trial judge’s directions and interlocutory rulings rendered the conviction unsafe.

Appeal allowed. The court quashed the conviction and refused the prosecution’s application for a retrial.

1. The appellant was of absolute good character and had given evidence. He was therefore entitled to both limbs of a good character direction: credibility and propensity. R v Hunter [2015] EWCA Crim 631 confirmed that entitlement and the need to tailor the direction to the case.
2. An omitted good character direction does not invariably make a conviction unsafe. Here, however, the jury had to resolve a straightforward conflict between the complainant’s account and the appellant’s denial, with little independent evidence. Credibility was central. The omission therefore rendered the conviction unsafe. The judge’s additional warning that the jury should approach the unchallenged character evidence cautiously was inappropriate and aggravated the defect.
3. The judge was entitled to refuse severance. The indictment had been sensibly reduced to a manageable sexual-offences trial, and trying the three defendants together was convenient and did not unfairly prejudice the appellant.
4. Applying section 100 of the Criminal Justice Act 2003, the proposed evidence of the complainant’s sexual misconduct lacked substantial probative value. One incident was merely a general attack on character, and the suggested link between an earlier incident and a false allegation was tenuous.
5. The disclosure request was properly treated as speculative and disproportionate. The records were incomplete and scattered, and no register or daily resident list existed that could practicably identify the movements of other children on the relevant dates.

A retrial was not in the interests of justice because the appellant had already served a substantial part of any likely sentence, had been acquitted at another trial, and was elderly, frail and in poor health.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction and refused a retrial: [2019] EWCA Crim 2100.
• Crown Court at Warwick: Convicted the appellant of indecent assault on 21 September 2018 and sentenced him to four years’ imprisonment on 28 January 2019.