Thomas, R. v

Where a defendant has attacked a complainant’s credibility, the rebuttal gateway in CJA 2003, section 101(1)(g), may be engaged before the defendant gives evidence. The resulting forensic choice whether to testify, in the knowledge that bad-character evidence may be admitted, is not unfair where it follows from the defence’s own credibility attack.

The trial judge has a fact-sensitive discretion as to the timing and scope of admissibility. An appellate court will not interfere absent error or unfairness. A complainant’s prior retractions and inconsistent allegations are ordinarily matters for the jury’s assessment. A conviction will not be quashed for lurking doubt without exceptional circumstances.

The appellant was convicted at Birmingham Crown Court of kidnap, assault occasioning actual bodily harm and rape. The prosecution case was that, after the complainant had stolen and sold his bicycle, the appellant and others forced her into a van, took her to his home and assaulted her. It was further alleged that the appellant later forced her to perform oral sex.

The complainant was cross-examined about an earlier rape allegation which she had retracted, and about other inconsistent complaints to the police. The appellant did not give evidence. His previous convictions, including one for kidnap, were not admitted after the judge deferred the prosecution’s application under section 101(1)(g) of CJA 2003.

On appeal, he alleged unfairness in that ruling, abuse of process arising from the complainant’s evidence about her earlier complaints, and lurking doubt as to the safety of the convictions.

1. Appeal dismissed. The judge’s ruling on bad character did not render the trial unfair. The defence had cross-examined the complainant on lies, retractions and inconsistencies. That attack plainly engaged section 101(1)(g) of CJA 2003, so the judge could reasonably have admitted the appellant’s previous convictions at the end of the prosecution case.

2. The judge instead deferred the decision to allow the appellant to decide whether to give evidence. That was a generous course. Even accepting that the practical understanding was that the convictions would probably be admitted if he testified, the resulting dilemma followed from the defence’s forensic decision to attack the complainant’s credibility. It was not unfair.

3. The judge was entitled to conclude that, if rebuttal evidence were admitted, the jury should see the appellant’s full record, including the previous kidnap conviction. Removing the most serious conviction could have misled the jury when the defence alleged that the complainant had lied about offending which included kidnap. This was a fact-sensitive judgment for the trial judge, who was best placed to assess fairness in the round.

4. There was no abuse of process in permitting the complainant to say that her earlier allegations were true despite prior retractions. Her previous accounts, retraction statement and inconsistencies were fully before the jury. Their effect on her credibility was for the jury to determine. No contemporaneous application was made that the prosecution had misrepresented the evidence.

5. The lurking-doubt ground also failed. Such intervention requires exceptional circumstances. The jury was entitled to accept the complainant’s account in light of the evidence, including circumstantial evidence corroborating aspects of it, and no exceptional feature was identified.

• Court of Appeal (Criminal Division): dismissed the appeal against convictions for kidnap, assault occasioning actual bodily harm and rape: [2020] EWCA Crim 4.
• Crown Court at Birmingham: convicted the appellant on 16 April 2019 and imposed concurrent sentences, the longest being ten years’ imprisonment.