Toner v R.

Under the Criminal Procedure Rules, the former technical restriction on joining offences founded on the same facts or forming a series of similar offences no longer governs every case. The court retains a controlled discretion to order separate trials where a defendant may be prejudiced or embarrassed, or where separation is otherwise desirable.

Where evidence on each set of counts would be admissible at a separate trial as bad-character evidence, joinder will ordinarily cause no relevant prejudice. Evidence of viewing or collecting indecent images of children is capable of showing a sexual interest in children under the bad-character gateways. A substantial lapse of time does not itself prevent admission, although the link and probative value remain matters for assessment.

Toner v R concerned convictions at the Central Criminal Court for historic indecency offences against young children, alleged between 1986 and 1991, and for possession of indecent images of children in 2015.

Before trial, the appellant sought separate trials for the historic counts and the later image-possession counts. Her Honour Judge Dhir QC refused severance. Some historic counts were withdrawn during the trial, but the jury convicted on four historic counts and three image-possession counts.

The appeal challenged the joinder and refusal to sever. It also challenged one count concerning deleted images found in an inaccessible part of a laptop hard drive. The central issue was whether the counts could properly be tried together without unfair prejudice.

1. Appeal dismissed. The convictions were safe. The judge properly refused to sever the indictment.
2. Section 5(3) of the Indictments Act 1915 and rule 3.21(4) of the Criminal Procedure Rules gave the judge a discretion to direct separate trials where the defendant might be prejudiced or embarrassed, or where separation was otherwise desirable. The word “may” did not create an unlimited discretion, but replacement of the former Rule 9 removed the technical barrier to joinder in appropriate cases. Separate trials were not required unless the rules, properly construed, compelled them or another factor, such as an overloaded indictment or an overburdened jury, made them desirable.
3. The court did not decide whether the historic offences and the 2015 image-possession offences formed a series of offences of the same or similar character under the former rules. That question was unnecessary under the current procedural framework.
4. Following R v D, P and U [2013] 1 WLR 676, evidence of possession of indecent images was capable of admission under sections 101(1)(d) and 103(1) of the Criminal Justice Act 2003 to show a sexual interest in children. The time gap did not prevent admission in principle. Such an interest was capable of persisting over years, although sufficient difference between the material and the alleged conduct, or marginal probative value, could justify exclusion.
5. Had the counts been severed, the image evidence could properly have been admitted at the historic-offence trial, and the historic allegations could properly have been admitted at the image-possession trial. The appellant’s denial of both sets of allegations did not determine admissibility. The material depicted boys of the same broad age as the complainants and was capable of establishing the relevant sexual interest. There was therefore no unfair prejudice requiring severance.
6. On the laptop count, the jury had been correctly directed that it could convict only if satisfied that the appellant had possessed the images before they were deleted. The jury was entitled to reject his explanation that he had never viewed them.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2019] EWCA Crim 447.
• Central Criminal Court — convicted the appellant of four historic indecency counts and three counts of possessing indecent images of children after refusing an application for separate trials.