REGINA v BQC

In a complex criminal trial, directions on cross-admissibility, propensity, coincidence, good character and hearsay must be clear, coherent and tailored. Cross-admissibility may rest on propensity or on the unlikelihood of genuinely independent complaints being coincidental. Use of both bases requires safeguards against double accounting.

An earlier complaint admitted to rebut fabrication may be admitted for its truth, but requires a specific hearsay direction and must not be misused as propensity evidence. Good character retains both limbs unless the jury are sure of alleged misconduct. Written directions are normally expected beyond the simplest cases. Their absence will usually matter because it contributes to a material error in oral directions, although exceptional complexity may itself make written assistance essential.

The appellant was convicted at the Crown Court at Chelmsford on 12 November 2020 of 26 sexual offences against four young complainants, who were his stepdaughter, two biological daughters and his stepdaughter’s friend. He denied all abuse and contended that the allegations had been fabricated.

At trial, the prosecution relied on allegations made by the appellant’s niece, for which he had previously been acquitted, as bad-character evidence. It also relied on evidence from the grandmother of one complainant concerning an alleged childhood complaint. The appeal challenged the admission of both bodies of evidence and the judge’s oral directions on cross-admissibility, good character, hearsay and recent complaint. It also challenged the refusal to give written directions.

1. Appeal allowed. The cumulative defects in the directions on cross-admissibility, good and bad character, and hearsay undermined the safety of every conviction. The convictions were quashed and a retrial was ordered.
2. The judge had not erred in admitting the niece’s allegations as propensity evidence under section 101(d) of the Criminal Justice Act 2003. Sexual abuse alleged against a young female family member was capable of showing a relevant tendency. Differences in the particular forms of abuse did not materially reduce its probative value. This was consistent with R v Hanson [2005] 1 WLR 3169.
3. The grandmother’s evidence was also capable of admission under section 120(2). A previous statement admitted to rebut fabrication is governed by the hearsay regime in section 114 and is evidence of its truth. The fact that the complainant said she had not made a complaint, or that the earlier complaint described different abuse, did not make the evidence logically incapable of answering the alleged later motive to fabricate. It nevertheless required careful, tailored directions.
4. Cross-admissibility could properly be left on both propensity and coincidence. The evidence had potential value on each basis, and the possibility of collusion or contamination did not preclude a jury from finding the complaints independent. But the oral directions confused those distinct routes, created a real danger of double accounting, and were not cured by a later fuller direction which was not presented as a replacement.
5. The good-character direction omitted its second limb and wrongly risked suggesting that the mere making of the niece’s allegations deprived the appellant of good character. The jury should have been told that he retained the full benefit of both limbs unless they were sure that those allegations were true. The directions on the grandmother’s evidence also failed to explain the dangers of hearsay, its limited relevance to fabrication, and the need not to use it as further propensity evidence.
6. Written legal directions were plainly required in this complex case. Applying R v Grant [2021] EWCA Crim 1243, their absence would not normally make a conviction unsafe by itself. Here, however, it aggravated the serious oral misdirections and deprived counsel and the jury of necessary assistance. The court did not need to decide whether the lack of written directions alone would have sufficed.

• Court of Appeal (Criminal Division) Allowed the appeal in [2021] EWCA Crim 1944, quashed all convictions and ordered a retrial.
• Crown Court at Chelmsford On 12 November 2020, a jury convicted the appellant on 26 counts of sexual abuse.