Singh, R. v

Evidence of a complainant’s bad character directed to credibility is inadmissible under Criminal Justice Act 2003 section 100 unless it has substantial probative value. Opinions in school, medical or educational records will not meet that threshold where their factual basis and the competence of their authors are unknown.

On an application under Police and Criminal Evidence Act 1984 section 78, the court must address fairness and balance limited probative value against the risk of prejudice. An erroneous admission will not make a conviction unsafe where the admissible evidence is strong and the verdicts demonstrate that the jury was not improperly prejudiced.

An employer–employee relationship alone does not establish abuse of trust for sentencing purposes.

The appellant, a restaurant manager, was convicted at Portsmouth Crown Court of one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He was acquitted of two further counts and was sentenced to 18 months’ imprisonment.

He appealed against conviction, challenging the exclusion of material concerning the complainant’s behaviour and credibility, the refusal to discharge the jury so that authors of the documents could be called, and the admission of mobile-phone internet-search evidence. His sentence appeal challenged the categorisation of the offence as involving an abuse of trust.

The central issues were whether the evidential rulings rendered the conviction unsafe and whether the sentencing judge had correctly applied the definitive guideline.

1. The appeal against conviction was dismissed. The proposed school, medical and educational material was evidence of the complainant’s bad character. The correct preliminary question was whether evidence to that effect was admissible under section 100 of the Criminal Justice Act 2003, whether adduced directly or as hearsay. It was not important explanatory evidence and there was no agreement to its admission. Although credibility was central, the opinions arose in different settings and disclosed neither a reliable factual basis nor the authors’ relevant expertise. They could not have substantial probative value as to whether the complainant was truthful about the alleged assault. It followed that calling the documents’ authors could serve no purpose.

2. The trial judge erred in admitting the mobile-phone search evidence without addressing the section 78 fairness application. The searches had very limited probative value, lacked an evidential connection to a sexual interest in the complainant, and were capable of prejudicing the jury on irrelevant moral grounds. The judge did not explain why their value outweighed that prejudice, or address the disadvantage caused by the delayed disclosure of an extract from searches made years earlier.

3. The conviction was nevertheless safe. The complainant made prompt complaints and displayed distress. The appellant accepted features of the encounter which supported her account, while his explanations could reasonably be rejected. The acquittals on the other counts showed that the jury had not convicted through general prejudice from the search evidence.

4. The sentence appeal was allowed. The mere employer–employee relationship did not establish the guideline aggravating factor of abuse of trust. A finding of abuse of trust requires close factual examination and a relationship giving the offender significant responsibility towards the victim on which the victim is entitled to rely. The judge’s reasons did not justify category A. The offence fell within category 2B. Aggravating and mitigating features balanced, so the appropriate sentence was 12 months’ imprisonment.

5. The court quashed the 18-month sentence and substituted 12 months’ imprisonment, to be served immediately. It also observed that the Crown Court had lacked power to grant bail pending appeal under section 81(1)(f) of the Senior Courts Act 1981 in the absence of certification of fitness for appeal.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 1366, dismissed the appeal against conviction and allowed the sentence appeal, substituting 12 months’ imprisonment for 18 months.
• Crown Court at Portsmouth: Convicted the appellant on 22 November 2019 of one count of sexual assault and, on 26 June 2020, imposed 18 months’ imprisonment.