R v Patrick John Ryan

In a trial involving multiple complainants, evidence relating to one complainant may be relevant to counts involving another, but its use cannot be left to the jury without clear guidance. Whether cross-admissibility is required, and whether omission makes convictions unsafe, depends on the facts and directions, including the risk that evidence will be used as propensity evidence. Where one complainant witnessed an offence against another, the jury may be directed to consider that count first and, if satisfied of credibility and reliability, decide whether the evidence discloses a propensity relevant to other counts. They must be warned against tainted evidence and cannot convict wholly or mainly on propensity alone. Ambivalent directions may render convictions unsafe and require a retrial.

Patrick John Ryan was convicted at Woolwich Crown Court on 30 April 2013 of 13 sexual offences against two complainants. He applied, approximately seven years out of time, for permission to appeal and to adduce fresh evidence. The proposed grounds concerned alleged failures to give directions on lies, adverse inferences, cross-admissibility, demeanour evidence and the effect of undisputed evidence. The Court of Appeal extended time and granted permission on the cross-admissibility ground only. The central issue was whether the jury had been given adequate guidance on the permissible use of evidence relating to one complainant when deciding counts involving the other, and whether the convictions were safe.

The court extended time, granted permission on ground 3 only and allowed the appeal. The convictions were quashed and a retrial was ordered on counts 1, 2 and 4 to 14.

1. Fresh evidence and other grounds. The fresh evidence was readily available at trial, its non-production was not adequately explained, and it did not found the proposed grounds. The court therefore refused admission under section 23 of the Criminal Appeals Act 1968. The date on which the appellant moved into the flat was not a material averment. The evidence concerning his wife’s cleanliness and skin condition did not establish the matters relied upon.
2. The proposed Lucas and McGarry grounds were misconceived. No adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994 was required where the relevant fact was already evidenced and agreed before the jury. Evidence of the complainants’ changed demeanour should have been explained by the judge, but that point alone did not justify permission. Where the evidence was contradicted, credibility and reliability were matters for the jury, not a basis for a directed acquittal. Pell v The Queen [2020] HCA 12 did not support the contrary general proposition.
3. Cross-admissibility. The need for a cross-admissibility direction, and the consequences of failing to give one, depend on the particular facts and directions. The relevant danger is that the jury may use evidence of one complainant as evidence of guilt on counts concerning another. The court endorsed R v Adams [2019] EWCA Crim 1363, which recognised that jurors require assistance and cannot be expected to devise the proper approach themselves. R v Adams was not authority for an automatic rule that every omission of such a direction is fatal.
4. Here, evidence that DG had witnessed an indicted assault on LD was a springboard for a direction. The jury should have been invited to consider that count first. If satisfied that the evidence was credible and reliable, having been warned about possible collusion or taint, they could consider whether it showed a propensity relevant to other counts. They had to be warned that propensity evidence could not alone, or mainly, support conviction. The summing-up was ambivalent and left the case in a cross-admissibility no-man’s land. The safety of all convictions was consequently in doubt.
5. The court considered that the public interest justified a retrial despite the age of the offences and the sentence already served. The appellant was bailed to the Crown Court and directions were given for a fresh indictment and re-arraignment.

• Court of Appeal (Criminal Division) — The appeal was allowed, the convictions were quashed and a retrial was ordered: [2021] EWCA Crim 262.
• Woolwich Crown Court — The appellant was convicted on 30 April 2013 of 13 sexual offences and sentenced to 12 years’ imprisonment.