Hollings v R.

Section 120 of the Criminal Justice Act 2003 provides alternative gateways for admitting a witness’s prior statement. A statement admitted under section 120(2) to rebut an allegation of recent fabrication may also prove the truth of its contents without satisfying sections 120(4) and 120(7). Evidence must be classified by its true evidential function: eyewitness evidence, and material deployed as a prior inconsistency, is not complaint evidence requiring those conditions. A modified good-character direction for a defendant of effective rather than absolute good character lies within the trial judge’s broad discretion. A complaint direction must make clear that the recipient of a complaint cannot independently confirm its truth.

The appellant was convicted at Aylesbury Crown Court of historic sexual offences against VH, including indecent assaults and sexual intercourse with a girl under 13. He appealed against conviction.

The appeal challenged the use of a 1983 theft conviction when assessing his credibility, the admissibility of evidence from witnesses and counselling notes said to concern complaints, and the adequacy of the jury directions on complaint evidence. The court granted leave to add the admissibility ground because it was closely related to an existing ground, then considered all three grounds.

1. The appeal was dismissed. The court granted leave to advance the fresh admissibility ground, but rejected each ground on its merits.

2. The appellant was not of absolute good character because he had a theft conviction. Under R v Hunter and Ors [2015] EWCA Crim 631, a modified direction for a defendant of effective good character is a matter of broad trial-judge discretion, assessed by reference to fairness in all the circumstances. The judge was entitled to direct that the old dishonesty conviction could bear on credibility, while giving a strong modified good-character direction and warning the jury not to convict wholly or mainly because of it. Its timing was relevant because the appellant’s credibility in the period of the alleged offending was in issue.

3. Section 120 of the Criminal Justice Act 2003 contains alternative gateways. Sarah H’s evidence of VH’s earlier statement was admissible under section 120(2) to rebut the allegation of recent fabrication. Once admitted on that basis, it was evidence of the truth of its contents. It did not also have to satisfy sections 120(4) and 120(7).

4. The evidence of Yvonne M and Jacqueline W, and the counselling notes, was not complaint evidence on its proper analysis. The first witness was principally an eyewitness. The remaining material was deployed by the defence as showing prior inconsistency or absence of complaint. Section 120’s complaint conditions therefore did not govern its admission.

5. The judge gave an adequate direction concerning Sarah H, the only complaint witness. The jury were told to decide whether the statement had been made, that it could bear on VH’s account and consistency, and that Sarah H could not independently verify its accuracy or truth. No comparable direction was required for material that was not complaint evidence.

• Court of Appeal (Criminal Division)—dismissed the appeal against conviction in [2020] EWCA Crim 1363, having granted leave to add one fresh ground.
• Crown Court at Aylesbury—on 11 September 2017, convicted the appellant of five historic sexual offences. Sentence was imposed on 13 October 2017.