Emmanuel Richards v Rex

Very old convictions may be admitted as propensity evidence under the gateway in the Criminal Justice Act 2003. Their age must be considered both when assessing continuing propensity and when deciding whether admission would adversely affect fairness. The appellate court should not substitute its own assessment for that of the trial judge and should intervene only for legal misdirection or a decision outside the reasonable range. Under the Criminal Appeal Act 1968, fresh-evidence factors are separate but form part of a multi-factorial interests-of-justice assessment. A failure to explain why evidence was not obtained at trial, coupled with doubts about its credibility, may justify refusing admission. The totality principle permits an appropriate uplift for related serious offending where the overall sentence remains proportionate.

The appellant was convicted at Manchester Minshull Street Crown Court of three rapes, grievous bodily harm, assault occasioning actual bodily harm, and controlling or coercive behaviour against his former partner. He appealed against conviction on the admission of old sexual convictions, alleged prosecution non-disclosure, and fresh evidence concerning an alleged payment to the complainant. He also challenged the overall sentence of 15 years’ imprisonment, together with a three-year extension period, as excessive.

The central issues were whether the bad-character evidence was fairly admitted, whether the alleged disclosure failures or fresh evidence rendered the convictions unsafe, and whether the sentence infringed totality.

The court dismissed both the appeal against conviction and the appeal against sentence.

1. Bad character evidence. The age of convictions was not an automatic bar under the relevant gateway in the Criminal Justice Act 2003. It was relevant to both continuing propensity and fairness. The trial judge had considered the appellant’s age, the passage of time, the absence of particular similarities, and the issues for the jury. Her decision was within the broad range reasonably open to her. The principles in R v Hanson [2005] EWCA Crim 824 and R v Gillings [2019] EWCA Crim 1834 were applied. The directions were fair, the evidence was relevant to the defence case, and the prosecution evidence was not particularly weak. Even if admission of the sexual convictions had been erroneous, it would not have rendered the convictions unsafe.
2. Disclosure. The prosecution had complied with its obligations under sections 3 and 8 of the Criminal Procedure and Investigations Act 1996. The complainant’s telephone had been downloaded and searched using terms identified by the defence. Material obtained during an unrelated investigation did not name the complainant and was hearsay. In any event, the defence knew of the alleged payment, did not cross-examine the complainant on bribery, and could not show what further enquiries would have revealed.
3. Fresh evidence. The matters in section 23(2) of the Criminal Appeal Act 1968 were separate but formed part of a multi-factorial interests-of-justice assessment. The principles in R v Beresford [1971] 56 Cr App 143, R v Nabarro [1972] Crim LR 497 and R v Pendleton (Donald) [2001] UKHL 66 were applied. There was no reasonable explanation for failing to call Mr Docherty at trial. His evidence contained material inconsistencies and was contradicted by the telephone downloads. The court was unable to regard it as capable of belief and refused to admit it.
4. Sentence. The judge had expressly considered totality. A nine-year sentence for the lead rape could properly be increased by six years to reflect the other rapes, serious assaults and coercive control. The resulting 15-year custodial term, with the extension period, was not manifestly excessive or disproportionate to the appellant’s overall criminality and the harm caused.

• Court of Appeal (Criminal Division): in [2022] EWCA Crim 1470, dismissed the appeals against conviction and sentence.
• Manchester Minshull Street Crown Court: following conviction on 17 November 2021, imposed an overall sentence of 18 years, comprising 15 years’ custody and a three-year extension period, on 13 January 2022.