Cooper, R v

Where a count under Children and Young Persons Act 1933 section 1(1) is particularised as alleging both assault and humiliation, the prosecution must prove both matters. A jury direction must reflect those particulars. A general direction that any statutory method of cruelty is sufficient cannot cure a later direction that permits conviction on humiliation alone.

Cross-admissibility directions must also be tailored to the asserted propensity. An unsafe conviction for cruelty cannot safely support a conviction for physical assault through a general propensity direction, particularly where the alleged humiliating conduct does not correlate with physical violence.

The appellant appealed against convictions returned at Carlisle Crown Court for assault occasioning actual bodily harm against a former pupil, Gow (Count 2), and cruelty to a person under 16 against another former pupil, Hann (Count 8). He had been acquitted of other counts, including Count 7, which alleged an assault on Hann immediately before the events charged in Count 8.

Count 8 alleged that the appellant assaulted and humiliated Hann in the dining area, contrary to Children and Young Persons Act 1933 section 1(1). The appeal concerned the safety of the Count 8 directions and the effect of a general cross-admissibility direction upon Count 2.

1. Appeal allowed. The convictions on Counts 2 and 8 were unsafe and were quashed. The Crown did not seek a retrial.

2. Count 8 alleged, conjunctively, that the appellant had assaulted and humiliated Hann in the dining area. Although the judge’s initial explanation of the alternative statutory forms of cruelty in section 1(1) was legally correct, the evidence directions had to reflect the particulars actually pleaded. The judge twice left Count 8 as an allegation of humiliation and did not direct the jury that it had to be sure of both assault and humiliation.

3. The omission was material. The prosecution had adduced generic evidence that pupils were sometimes required to wear towels as punishment. The jury could therefore have treated humiliation alone as sufficient, notwithstanding the pleaded allegation of assault and humiliation. The acquittal on the immediately preceding alleged assault was not strictly logically inconsistent with a conviction on Count 8, but it was markedly odd and reinforced the concern that Count 8 had been decided on an impermissible basis.

4. There was sufficient evidence for Count 2 to be left to the jury, and an appellate court could not simply substitute its own assessment of the evidential weaknesses. However, the general cross-admissibility direction allowed the jury potentially to use Count 8 and the towel evidence as propensity evidence on Count 2. Once Count 8 was unsafe, it could not safely support Count 2. Further, a tailored and qualified direction was required because humiliation by compelled public wearing of towels had no obvious correlation with actual physical violence.

5. The court did not determine whether proposed fresh evidence concerning Hann would independently have justified allowing the appeal.

• Court of Appeal (Criminal Division) — Allowed the appeal against conviction and quashed the convictions on Counts 2 and 8: [2019] EWCA Crim 43.

• Carlisle Crown Court — A jury convicted the appellant of assault occasioning actual bodily harm (Count 2) and cruelty to a person under 16 (Count 8), and acquitted him of other counts.