R v BKI

Directions warning that a complainant’s distress does not necessarily confirm the truth of the evidence, and that the case should be tried dispassionately, are not mandatory in every rape or serious sexual offence trial. Whether they are necessary depends on all the circumstances, including the witness’s conduct, existing directions and the way the issue was handled at trial. An omission renders a conviction unsafe only where the direction was necessary and the omission affects safety. A truncated cross-examination does not automatically require a further warning where the judge fairly addresses the limitation and ensures that the defence points are conveyed. Fresh evidence available at trial and withheld as a tactical choice will ordinarily not satisfy the appellate admission criteria.

The appellant was convicted of rape at the Crown Court at Derby in July 2015 following a retrial. An earlier application for leave to appeal was refused by the full Court of Appeal in 2016: [2016] EWCA Crim 4. The case was later referred by the Criminal Cases Review Commission, the reference taking effect as an appeal against conviction.

The referral concerned the absence of directions about the complainant’s visible distress and the need for the jury to approach the case dispassionately. The appellant also sought leave to argue that the jury had not been directed adequately about the prejudice caused by abridged cross-examination, and that an adverse inference direction was wrong in light of material not adduced at trial.

Appeal dismissed; leave to appeal on grounds 2 and 3 refused.

1. Directions warning a jury that a complainant’s distress does not necessarily establish the truth of her evidence, and requiring a dispassionate approach, were not mandatory in every rape or serious sexual offence case. The question was whether, in all the circumstances, the directions were necessary so that it was not open to the trial judge properly to omit them and, if so, whether the omission rendered the conviction unsafe.

2. The court distinguished R v JS [2019] EWCA Crim 2198, where the complainant’s credibility was critical and the omission of the two directions rendered the convictions unsafe. Here, the complainant was distressed but was also reluctant and oppositional towards both sides. Her repeated refusal to engage, statements that she could not remember, and departures from the video-link room were capable of helping the defence and undermining the prosecution. The judge had correctly directed the jury about the use of evidence of distress and had told them to decide the case on the evidence. The failure of trial counsel to request the suggested directions, either during the trial or in the subsequent advice and grounds of appeal, was a significant indication that the omission had not appeared important at the time. The first ground therefore failed.

3. Ground 2 sought to re-run a criticism rejected by the full court in 2016. Leave was required because the ground was outside the CCRC’s referral, and there was no reason to grant it. In any event, the judge had fairly explained the limitation on cross-examination and had enabled the defence to convey the matters counsel wished to explore. In the circumstances, no further direction about possible prejudice was necessary.

4. Ground 3 was an impermissible attempt to present the appellant’s case differently from the way it had been advanced at trial. The material relied upon was available at trial and had not been adduced following a tactical decision. The solicitor’s note did not fully explain the presence of semen and did not answer the prosecution’s suggested inference that the appellant had constructed a false account after learning of the scientific evidence. The appellant therefore could not satisfy the criteria in section 23 of the Criminal Appeal Act 1968 for admitting fresh evidence. The applications on grounds 2 and 3 were refused.

• Court of Appeal (Criminal Division): The present CCRC reference was treated as an appeal against conviction. Ground 1 was dismissed, and leave to appeal on grounds 2 and 3 was refused.
• Court of Appeal (Criminal Division): The appellant’s earlier application for leave to appeal against conviction was refused by the full court on 8 June 2016: [2016] EWCA Crim 4.
• Crown Court at Derby: The appellant was convicted following a retrial in July 2015.