AAM v REGINA

Evidence of controlling or coercive behaviour that is probative of consent and reasonable belief in consent may form part of the facts of a rape allegation under Criminal Justice Act 2003, section 98(a). The trial judge remains responsible for giving directions that prevent its improper use, even where the evidence is admitted by agreement.

The guidance in R v MA [2019] EWCA Crim 178 does not require a detailed bespoke direction in every case. The necessary direction depends on whether there is a real risk that the jury will misuse the evidence. Conventional directions may suffice where the evidence is capable of supporting the live issues and the summing up makes clear that it is only one part of the prosecution case.

The appellant was convicted at Leicester Crown Court of two counts of rape of his wife during the later stages of their marriage. The central issues were whether she consented and whether the appellant reasonably believed that she consented.

A count alleging controlling and coercive behaviour under section 76 of the Serous Crime Act 2015 was removed because the alleged conduct pre-dated that offence. By agreement, the evidence supporting that count was nevertheless adduced on the rape counts as evidence of reprehensible behaviour.

On appeal, the appellant contended that the judge's failure to give a specific direction on that evidence, as envisaged in R v MA [2019] EWCA Crim 178, made the convictions unsafe.

1. Appeal dismissed. The convictions were safe. Although a short, specific warning about the evidence of reprehensible behaviour would have been preferable, its omission did not create a real risk of an improper verdict.

2. The evidence was admissible under section 98(a) of the Criminal Justice Act 2003. It had to do with the facts of the rape offences because, if accepted, it was capable of supporting the prosecution case on consent and reasonable belief in consent. Controlling or coercive behaviour can show a tendency to override the controlled person's wishes and may form part of a pattern that includes rape.

3. Agreement between the parties did not remove the judge's duty to direct the jury appropriately and to sum up fairly. The purpose of the directions discussed in R v MA [2019] EWCA Crim 178 is to prevent a jury from relying on disputed reprehensible conduct without first being sure of it, from treating it as proof beyond its proper capacity, or from convicting wholly or mainly on that collateral conduct.

4. Those safeguards did not require a detailed, incident-by-incident direction here. The conventional directions, the direction to consider all the circumstances bearing on reasonable belief, and the summing up as a whole made clear that the jury had to determine the evidence and that the reprehensible behaviour was only one element of the case. All of it was capable, if accepted, of bearing on the live issues.

5. The judge's observations on the insurance payment and the incident involving the parties' daughter were favourable to the appellant. The court nevertheless held that, if proved, those matters could also be put into the evidential balance as relevant to whether he routinely overrode his wife's wishes. The evidence was strong, fairly tested during the eight-day trial, and fairly summarised. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 1720, dismissed the appellant's appeal against conviction.

• Crown Court at Leicester: On 12 March 2020, convicted the appellant after trial of two counts of rape and imposed concurrent sentences of seven and eight years' imprisonment.