Grahame Brennand v R

An arguable ground is not, by itself, sufficient to justify extending time for a criminal appeal. The court must assess the interests of justice, including finality, the parties’ interests, efficient use of resources, good administration, the public interest, the merits and the length and explanation of delay. Exceptional cogency may justify an extension despite an inadequate explanation.

Whether to direct a jury on propensity, coincidence, or both in a cross-admissibility case is fact-sensitive. No legal rule requires exceptionality, a stronger count or a fixed sequence. Directions must be clear, relevant and tailored. Coincidence reasoning may be holistic. A properly framed motive question does not reverse the burden of proof where the prosecution’s burden is firmly restated.

The appellant was convicted at the Crown Court at Preston of numerous sexual and cruelty offences after a first trial and a retrial. He sought, approximately three years and nine months out of time, leave to appeal his convictions.

The proposed grounds challenged the jury directions concerning cross-admissibility, including propensity and coincidence reasoning, the absence of a specific warning against double counting, the use of a motive question, and the prosecution’s failure to give formal notice of a bad character application. The central issues were whether time should be extended in the interests of justice and whether the proposed grounds had a real prospect of success.

Outcome. The Court refused the substantial extension of time. The application for leave to appeal against conviction therefore failed.

1. Extension of time. An arguable appeal is not a trump card. The interests of justice include finality, the interests of all parties, efficient use of resources, good administration, the public interest in justice and the liberty of the individual. The merits must be examined, and the longer the delay, the more convincing and weighty the explanation required. Exceptionally cogent grounds may justify an extension despite an unsatisfactory explanation. Applying those principles, the pandemic and difficulties obtaining legal instructions did not explain the full delay. The grounds were straightforward, the transcript had been available for about 16 months, and the case was not exceptional.
2. Bad character notice. Where the prosecution relies on one count as cross-admissible in relation to another, notice under the Criminal Procedure Rules, rule 21.1, is required. The requirement is substantive because it prevents surprise. There was no unfairness here: cross-admissibility was apparent from the outset, was fully addressed with counsel, and the directions were clear.
3. Propensity and coincidence. The decision whether to give a propensity direction, a coincidence direction, or both depends on the facts. There is no legal requirement that the case be exceptional, that one count be significantly stronger, or that propensity must always be addressed first. Directions must be relevant to the particular case and carefully tailored, rather than copied from a template. In appropriate cases, coincidence reasoning may be holistic rather than sequential. The directions given here were appropriately adapted to the evidence of multiple similar complaints. A further warning about double counting might have caused confusion.
4. Motive and burden of proof. The jury could ask why numerous allegations had been made, but the absence of an apparent improper motive did not establish guilt. The judge repeatedly and firmly directed that the prosecution retained the burden of proof. The proposed grounds therefore had no real prospect of rendering the convictions unsafe. Permission was given for the judgment to be cited.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1384, the court refused an extension of time and the application for leave to appeal consequently failed.
• Crown Court at Preston: The appellant was convicted after a first trial and retrial and received a total sentence of 16 years’ imprisonment with an extended licence period of three years.