Ellis Cloud v Rex

Offences against different complainants may be tried together where they form a series of offences of the same or similar character and proper directions prevent unfair prejudice. Whether separate treatment or cross-admissibility directions are required depends on the facts and directions in the particular case. A single previous offence may establish propensity for bad-character purposes where it has relevant similarities to the charged offending. It may be admissible across counts involving different complainants. A defendant’s claim that an allegation was malicious does not itself establish propensity. Admission remains subject to the fairness safeguard in section 101(3) of the Criminal Justice Act 2003.

The appellant was convicted at Kingston upon Thames Crown Court of assault by penetration and rape against one complainant, and two further counts of rape against another. The indictments were joined, and a previous conviction for sexual assault of a child under 13 was admitted as bad-character evidence. The appellant appealed on grounds concerning joinder, separate trials, the admissibility of the previous conviction, its relevance to the second complainant, and the safety of the convictions. The central issues were whether the offences should have been tried separately, whether the conviction was admissible under the relevant gateways in the Criminal Justice Act 2003, and whether the summing-up rendered the convictions unsafe.

1. Disposition. The appeal against conviction was dismissed. The convictions were safe.
2. Joinder and separate trials. The judge was entitled to join the indictments under Criminal Procedure Rules Part 3.29. The offences formed part of a series of offences of the same or similar character because they involved sexual offences, including rape, against two women, with other common features including the use of alcohol or drugs. The differences between the allegations did not require separate trials where the jury could be properly directed.
3. Cross-admissibility. Although the prosecution had not sought a cross-admissibility direction, the trial judge was not required to give further directions on separate treatment of the complainants and counts. The bad-character directions and the direction to consider each count separately were sufficient in the circumstances. The court agreed with the observation in R v Adams [2019] EWCA Crim 1363 and AHC v R [2022] EWCA Crim 925 that the issue depends on the facts and directions of the particular case. It added, as practical guidance, that cross-admissibility should be considered early and appropriate notice given.
4. Bad character. The previous conviction was admissible under section 101(1)(d), sections 103(1)(a) and 103(2) of the Criminal Justice Act 2003. A single previous offence could establish propensity. The previous offending involved getting into bed with a sleeping female to commit a sexual offence, and was also relevant to a propensity to commit sexual offences while affected by drink or drugs. The guilty plea and the appellant’s subsequent denial did not undermine its relevance. The conviction was also admissible under section 101(1)(g), because the appellant had made a serious and sustained attack on the second complainant’s character.
5. Fairness and safety. The conviction did not have such an adverse effect on the fairness of the proceedings that it ought to have been excluded under section 101(3). The court recognised that a previous sexual offence against a child required careful consideration, but the jury had received appropriate warnings and the conviction was independently relevant to propensity. The appellant’s claimed response that allegations were malicious could not itself establish a relevant propensity, but the reference to it did not render the convictions unsafe because it was not the focus of the propensity direction and the jury had been warned not to use the conviction as a shortcut to guilt.

1. Court of Appeal (Criminal Division) — In [2022] EWCA Crim 1668, the appeal against conviction was dismissed.
2. Kingston upon Thames Crown Court — The appellant was convicted on 14 October 2021 and sentenced on 10 December 2021 to an extended sentence of 20 years.