Pierce v R.

The later deletion of a police caution does not make a conviction unsafe where the evidence underlying the caution would independently have been admissible and the jury could fairly determine the material issues without relying on its formal existence.

Evidence of sexual communications may be admissible as important explanatory evidence under the Criminal Justice Act 2003 where it is necessary for a fair assessment of a delayed or partial complaint. It may also be admissible where it is relevant to an important issue, including whether the defendant had a sexual interest in the complainant.

The appellant was convicted at Lewes Crown Court of five counts of indecent assault, three counts of indecency with a child and one count of attempted rape. The prosecution relied in part on a 2005 police caution concerning sexually suggestive text and image messages sent to the complainant.

Nearly three years after trial, Sussex Police deleted the caution from the appellant’s record. The Court of Appeal admitted that deletion as fresh evidence. The appellant contended that, without the caution, the evidence would not have been admitted as an admission and the convictions were unsafe. The central issue was whether deletion of the caution affected the safety of the convictions.

1. Appeal dismissed. The deletion of the caution did not render the convictions unsafe. The material evidence underlying it would have been admissible even if the appellant had never been cautioned.
2. The sending of obscene texts and images, the complainant’s 2004 report, and the appellant’s response when confronted with the allegation amounted to reprehensible conduct for bad-character purposes under the Criminal Justice Act 2003. Although the parties had agreed at trial to admit the caution, the court fairly considered whether the underlying evidence was independently admissible.
3. The evidence was admissible as important explanatory evidence under sections 101(1)(c) and 102. Without it, the jury could not fairly assess the significance of the complainant’s 2004 partial disclosure, the subsequent delay, or the competing explanations advanced by the prosecution and defence.
4. The evidence was also admissible under sections 101(1)(d) and 103 because sexual communications directed to the complainant were relevant to the important issue of whether the appellant had a sexual interest in her. There was no proper basis to exclude the evidence. It did not create unfair satellite issues.
5. The jury could still have heard evidence from the complainant and her friend, the appellant’s interview admissions, and his explanation that he accepted the caution while in a poor condition through drug use. The jury was therefore able fairly to decide whether the messages were sent, what they showed, and whether the 2004 complaint was comprehensive. The discrepancy between the offence accepted for the caution and that recorded on the PNC raised concerns about the cautioning process, but did not affect this conclusion.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2020] EWCA Crim 855.
• Crown Court at Lewes: On 10 June 2016, the appellant was convicted after trial of five counts of indecent assault, three counts of indecency with a child and one count of attempted rape. He received a total sentence of nine years and six months’ imprisonment.