AB v R.

A defendant of previous good character who gives evidence should receive a clear direction on both credibility and propensity. The jury must be told that good character may support the defendant’s truthfulness and may make the alleged offending less likely, while remaining free to decide its weight.

Where cross-admissibility rests on the unlikelihood of coincidence, the jury must be directed clearly on the relevant similarities and must exclude both collusion and innocent contamination before using one complainant’s evidence to assess another’s. Written directions are especially valuable where several legal directions are required. Fresh evidence which materially undermines a witness relied upon to support a complainant’s consistency may render convictions unsafe.

The appellant was convicted at the Crown Court at Snaresbrook of nine sexual offences against his sister and wife, and sentenced to 14 years’ imprisonment. The case turned on whether the complainants’ accounts were truthful. The prosecution relied in part on earlier complaints made to others, including a counsellor.

On appeal, the appellant challenged the directions on good character and cross-admissibility, aspects of the treatment of the counsellor’s evidence, and the absence of a direction about his prison clothing after some verdicts had been returned. Further evidence established that the counsellor had given misleading evidence concerning her purported supervisor and notes. The central question was whether the cumulative effect of the summing-up deficiencies and the fresh evidence made the convictions unsafe.

Appeal allowed. The convictions were unsafe. They were quashed and a retrial was ordered.

1. The appellant was entitled to a full good-character direction. Since he had given evidence, the jury had to be told that his good character was relevant both to his credibility and to the likelihood that he committed the offences. The directions given were confusing and did not clearly convey the essential elements. The unnecessary comments about the limits of the character witnesses’ knowledge of his private life, and about infidelity, further undermined the direction.

2. The court accepted that a cross-admissibility direction based on coincidence was permissible. There were sufficient broad similarities in the allegations. Applying Freeman, Crawford [2008] EWCA Crim 1863, the jury nevertheless required a clear direction that they could use similarities only after excluding both deliberate collusion and innocent contamination or unconscious influence. The oral direction did not adequately identify the relevant similarities or distinguish those two risks.

3. The absence of written directions aggravated those defects. Written directions would have enabled the jury to follow and revisit the legal directions, and would have assisted the judge to formulate them precisely.

4. The agreed evidence of the police officer met the criteria in section 23 of the Criminal Appeals Act 1968 and was admitted. It showed that the counsellor had given misleading evidence about her daughter’s role as supervisor. Since the prosecution had relied on that witness to support the consistency of one complainant’s account, the evidence materially strengthened the challenge to her reliability. The further oral evidence did not meet the statutory criteria and was not received, but did not remove the resulting concern about safety.

5. The trial judge had acted within her discretion in deciding not to comment on the appellant’s prison clothing. That ground did not itself undermine the convictions.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed all convictions and ordered a retrial.
• Crown Court at Snaresbrook: On 5 May 2017, convicted the appellant of nine sexual offences and imposed a total sentence of 14 years’ imprisonment.