R v David Llewellyn Yeld

A misdirection about an ingredient of an offence does not inevitably make a conviction unsafe. The appellate court must assess the real issues at trial and whether the error could have affected the verdict. Although consent was an ingredient of rape under section 1(1) of the Sexual Offences Act 1956, there was no evidential basis on which a jury could have found consent where the complainant was aged 10 and the defence was that no sexual conduct occurred.

The adequacy of directions on historic allegations, prior convictions and memory must likewise be assessed in their full context. A direction need not reproduce academic discussion of memory where it fairly identifies the risk of false recollection and leaves the reliability issue squarely to the jury.

R v David Llewellyn Yeld concerned an application for a 427-day extension of time to seek leave to appeal against convictions at the Crown Court at Snaresbrook on 25 June 2019. The applicant, a former primary-school teacher, had been convicted of rape and four indecent assaults upon C, a former pupil aged 10 at the time of the alleged offences.

The applicant denied that any abuse occurred. He contended that C had genuinely formed false memories. The prosecution also relied on his prior convictions for indecent images of children, related computer activity, and evidence from a former pupil.

He advanced three grounds: a misdirection that consent was irrelevant to rape; inadequate directions on bad character and the presumption arising from previous convictions; and inadequate directions on the fallibility of memory. The central issue was whether any asserted defect rendered the convictions unsafe.

1. Application refused. The court refused the extension of time because none of the proposed grounds disclosed an unsafe conviction.

2. The judge erred in directing that consent was irrelevant to rape under section 1(1) of the Sexual Offences Act 1956. Consent was an ingredient of that offence. The error did not make the conviction unsafe, however. The real issue was whether the alleged conduct happened at all. C was a prepubescent child aged 10, and there was no evidential basis for a finding that, if her account were true, she consented. A misdirection on an ingredient of an offence is not necessarily fatal; its significance depends on the issues genuinely raised at trial.

3. Section 74(3) of the Police and Criminal Evidence Act 1984 created a rebuttable presumption that the applicant was guilty of the offences of which he had previously been convicted. A direction on that provision should have been given. Its absence did not affect safety because the applicant made only a bare assertion of innocence and adduced no evidence capable of rebutting the presumption on the balance of probabilities.

4. The judge had not materially conflated sexual interest in children with propensity to commit the charged offences. The prior convictions, computer activity and websites were admissible and relevant. Read as a whole, the summing-up correctly left the jury to decide whether the convictions showed a tendency and required them to disregard the convictions if not sure.

5. The directions on memory were adequate. The judge identified the risks created by delay, the possibility of false recollections genuinely believed to be true, and the disadvantage caused to the applicant by the passage of time. No further academic exposition was required. The jury had been fairly directed to decide whether C's recollections were real or false.

• Court of Appeal (Criminal Division): In R v David Llewellyn Yeld, [2021] EWCA Crim 866, the court refused a 427-day extension of time to seek leave to appeal against conviction.

• Crown Court at Snaresbrook: On 25 June 2019, the applicant was convicted after trial of one count of rape and four counts of indecent assault.