RK v R

Uncharged allegations of similar sexual offending may be admitted as propensity evidence under section 101(1)(d) of the Criminal Justice Act 2003, even if the conduct post-dates the charged offence and the allegations come from the same complainant. The decisive safeguard is whether admission would have a materially adverse effect on trial fairness under section 101(3).

Speculative possibilities of further investigation do not establish unfairness, particularly where the defence knew of the allegations, sought neither an adjournment nor further disclosure, and could have made the suggested inquiries. Clear directions must require the jury to be sure that the alleged propensity is proved and prevent conviction principally on that evidence alone.

RK v R concerned an appeal against conviction and sentence following a jury trial in the Crown Court at Croydon. RK was convicted of rape of his daughter when she was under 13, contrary to section 5(1) of the Sexual Offences Act 2003, and received an extended sentence of 20 years comprising 15 years’ custody and a five-year licence extension.

Before trial, the judge admitted allegations that RK had also sexually abused the complainant in Nigeria as bad-character evidence of propensity. RK contended that the late application and absence of further Nigerian inquiries made the trial unfair. He also challenged the categorisation of the offence and the custodial term. The central issues were whether the propensity evidence should have been excluded for unfairness and whether the sentence was wrong in principle or manifestly excessive.

1. Both appeals were dismissed. The conviction was safe. The judge was entitled, and right, to admit the Nigerian allegations through section 101(1)(d) of the Criminal Justice Act 2003.

2. The evidence was capable of proving a propensity to force himself sexually upon his daughter, which was relevant to whether RK had committed the charged rape. Its probative potential did not depend on there being allegations from more than one complainant. Nor was its admissibility barred because the alleged Nigerian conduct post-dated the charged offence. The relevant question was whether it could establish the asserted propensity at the time of the charged offence.

3. There was no material unfairness requiring exclusion under section 101(3). The defence had known of the allegations and the application before trial, but did not seek an adjournment or further disclosure. The suggested avenues of inquiry in Nigeria were speculative or could readily have been pursued by contacting the relevant lawyer or family member. RK had therefore not shown that he could not properly answer the allegations without an adjournment or further inquiries.

4. The jury directions on propensity were exemplary. The jury had to be sure that the Nigerian allegations were essentially truthful and showed the asserted propensity. Even then, the evidence could not by itself prove guilt and could not be the sole or main basis for conviction. The summing-up was fair, and the remaining criticisms of it were not pursued.

5. On sentence, the judge was entitled to treat the complainant as particularly vulnerable because of her personal circumstances, including earlier physical violence by RK and the absence of a parent or equivalent person to whom she could turn. Social-services involvement did not negate that vulnerability. There was no impermissible double counting: the earlier violence bore separately on her vulnerability and RK’s culpability.

6. The judge was also entitled to move upwards from the applicable starting point because RK rapidly removed the child from the jurisdiction to reduce the risk of disclosure, and because of the enduring harm caused. The 15-year custodial term was towards the upper end for a single offence, but was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): By [2022] EWCA Crim 1523, dismissed RK’s appeals against conviction and sentence.
• Crown Court at Croydon: On 26 November 2021, RK was convicted by a jury of rape of a child under 13. On 25 January 2022, he received an extended sentence of 20 years, comprising 15 years’ custody and a five-year extended licence period.