Clifford v R

A judge need leave an alternative route to acquittal, such as consent or belief in consent, only where there is a proper evidential basis for it. Clear evidence of coercion and resistance does not require such a direction where the defence is a complete denial of any sexual encounter.

Directions on complainants’ demeanour, similar-fact evidence, propensity, delay and the separate assessment of allegations are sufficient when they fairly identify the issues and warn against impermissible reasoning. A schedule that assists the jury to identify potentially relevant evidence does not itself endorse the prosecution case. Fresh evidence under section 23 of the Criminal Appeal Act 1968 should be admitted only if it may afford a ground for allowing the appeal.

The deceased applicant, acting through his daughter, sought an extension of more than three years to apply for leave to appeal against convictions for indecent assault at Southwark Crown Court in 2014. He had received consecutive sentences totalling eight years’ imprisonment. A previous appeal against sentence had been dismissed.

The proposed conviction appeal challenged directions on consent, demeanour, bad character, propensity, alleged independence of complaints, delay and the fairness of the summing up. It also sought to adduce post-verdict evidence under section 23 of the Criminal Appeal Act 1968, said to undermine one complainant’s account and credibility. The central issue was whether any ground or proposed fresh evidence rendered the convictions unsafe.

Decision

The court granted an extension of time but refused leave to appeal. None of the complaints about the trial or the proposed fresh evidence came close to imperilling the safety of the convictions.

1. Consent. An alternative conclusion not advanced by either party should be left to the jury only where it has a proper evidential basis. The defence was a complete denial of sexual activity. The complainants’ accounts instead described coercion and physical resistance. There was no evidence on which a jury could reasonably find consent or a belief in consent, so no further direction was required.
2. Demeanour and other evidence. The judge correctly warned that distress shown long after an alleged sexual assault was not a reliable indicator of truthfulness. The bad-character direction required the jury to assess each witness separately, decide whether her evidence established the asserted similarities, and decide what assistance it could give. The accompanying schedule simply identified the evidence and counts to which it might be relevant; it did not endorse the Crown’s case. No separate warning that sexual appetite or extra-marital affairs did not prove assault was necessary on these facts.
3. Independence, delay and summing up. Collusion had never been alleged. The judge was entitled to direct on the true independence of the complaints, and the complaint concerning possible contamination reflected tactical choices at trial. The delay direction fairly tailored the usual warning to the evidence. A fair summing up did not require the judge to repeat every individual defence point.
4. Fresh evidence. Applying section 23 of the Criminal Appeal Act 1968, the proposed evidence did not afford a ground for allowing the appeal. It did not exclude the possibility of the relevant meeting or undermine the corroborated account sufficiently; nor did the subsequent compensation claim materially affect safety.

The court also noted the relevance of counsel’s failure to object to proposed directions, consistently with R. v. Hunter & others [2015] EWCA Crim 631, but its conclusion rested on the absence of any unsafe conviction.

• Court of Appeal (Criminal Division) — In the present proceedings, the court granted an extension of time but refused leave to appeal against conviction: [2019] EWCA Crim 545.
• Court of Appeal (Criminal Division) — A previous appeal against sentence was dismissed by the full court; no citation is stated in the judgment.
• Crown Court at Southwark — In April 2014, the applicant was convicted of multiple counts of indecent assault and received consecutive sentences totalling eight years’ imprisonment.