Hackett, R. v

Evidence of a defendant’s bad character must be relevant to a gateway under Criminal Justice Act 2003 before it may be admitted. General evidence of hostility, verbal abuse or relationship difficulties will not ordinarily explain, or establish a propensity for, a discrete allegation of sexual assault.

Where background evidence is admitted, the trial judge must define its permitted scope and use, control examination and cross-examination, and direct the jury on its limited significance. Irrelevant and prejudicial questioning, coupled with inadequate directions, can render a conviction unsafe.

The appellant was convicted at Basildon Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The prosecution alleged that, after the parties’ relationship had ended, he made unwanted sexual advances when the complainant attended his home. He denied any sexual touching.

On the morning of the trial, the prosecution obtained a ruling admitting evidence about alleged earlier abusive and aggressive conduct during the relationship under several bad-character gateways in the Criminal Justice Act 2003. The appellant appealed against conviction, challenging the admission and subsequent use of that evidence, the cross-examination founded upon it, and the jury directions.

1. Appeal allowed; conviction quashed. The alleged sexual assault was a discrete incident. Earlier arguments, verbal abuse, emails, drinking-related incidents and a separate harassment incident were not relevant to whether the appellant committed that sexual assault. They neither substantially assisted understanding of the case nor established a propensity to commit the alleged sexual misconduct. Their limited probative value was substantially outweighed by prejudice. They should not have been admitted through the bad-character gateways in the Criminal Justice Act 2003.

2. If background evidence is to be admitted, the judge must identify the basis and limits of admission, its permitted use, what witnesses may say about it, the permissible extent of cross-examination, and the directions to be given to the jury. The ruling here was too brief and general. It failed to secure effective judicial management of the evidence.

3. The prosecution’s cross-examination went beyond the ruling and focused extensively on peripheral and prejudicial matters, including the appellant’s drinking, his conduct towards the complainant’s children, and his belief that she had been unfaithful. Applying the principle stated in Stirland v Director of Public Prosecutions [1944] AC 315, questioning which is irrelevant and unfair because it distracts the jury from the real issues should be disallowed. The judge should have stopped or limited it.

4. The jury should have been directed that they could rely on disputed bad-character material only if sure of it, that its permitted purpose was limited, and that it did not itself prove the charge. The absence of those directions compounded the wrongful admission and unfair use of the evidence. Individually and cumulatively, those defects caused substantial prejudice and made the conviction unsafe.

5. The court declined to order a retrial. By the likely trial date no effective sentence could be passed, and the complainant’s concerns could instead be addressed by remitting the restraining-order issue to Basildon Crown Court under section 5A of the Protection from Harassment Act 1997, before a judge other than the trial judge.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction: [2019] EWCA Crim 983. No retrial was ordered. The issue of a restraining order was remitted to Basildon Crown Court under section 5A of the Protection from Harassment Act 1997.

• Crown Court at Basildon: On 24 October 2017, convicted the appellant of sexual assault. On 28 November 2017, imposed 20 months’ imprisonment suspended for 24 months, with unpaid work and a rehabilitation activity requirement, and made a restraining order.