Paul Shinn v R

Evidence relating to a complainant whose earlier allegation ended in acquittal is not inadmissible merely for that reason. Similar-fact or bad-character evidence remains subject to statutory gateways and the trial judge’s fairness discretion. Fairness must be assessed in the round, considering the interests of both sides; the prosecution bears no conventional burden in that discretionary exercise. No inflexible rule requires a transcript of the earlier trial. The safeguards and available material must be assessed case by case. Bad-character evidence should be excluded where it substantially distracts the jury from the indictment, but contemporaneous evidence connected with charged events may be directly relevant and not collateral. Sentence appeals are assessed by reference to overall criminality, offence-specific guidelines and totality.

The appellant, a teacher, was convicted at the Crown Court at Kingston upon Thames of five sexual offences involving two boys, including sexual activity with a child under 13 and causing a child to watch a sexual act. He received an extended determinate sentence of 12 years, comprising 10 years’ custody and a two-year extended licence period.

His conviction appeal concerned the admission of evidence about an earlier allegation for which he had been acquitted, evidence of contemporaneous behaviour towards other children, and images recovered from his computer. He argued that missing material from the earlier trial made the proceedings unfair and that the other evidence created distracting satellite litigation. The sentence appeal challenged the guideline categorisation, alleged double counting and the overall sentence. The central issues were whether the evidence was fairly admitted and whether the sentence was wrong in principle or manifestly excessive.

Both appeals dismissed.

1. Evidence concerning the earlier acquittal. The admissibility of evidence relating to an earlier allegation for which the defendant was acquitted is governed by its relevance and the statutory bad-character gateways. The acquittal does not itself make the evidence inadmissible. The principles in Z [2000] 2 AC 483 continued to apply under the Criminal Justice Act 2003.
2. Once evidence is admissible, the judge must consider whether its admission would adversely affect the fairness of the proceedings under section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984. Fairness is assessed in the round, having regard to the interests of both sides. The conventional burden of proof has no part in that discretionary exercise. The court applied the approach in R(Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134.
3. Missing material from the earlier trial. Hajdarmataj [2019] EWCA Crim 303 required a case-by-case assessment of admissibility and fairness. Its observations that a transcript would normally be necessary did not establish an inflexible admissibility rule. The absence of transcripts was relevant, but the available evidence, agreed facts, the ability to challenge the allegation and the judge’s directions provided sufficient safeguards. Admission of the evidence did not render the trial unsafe.
4. Other evidence. The principle identified in O’Dowd [2009] EWCA Crim 905 was that evidence should not be admitted where it substantially interferes with the jury’s focus on the indictment. The evidence of the other boys was contemporaneous with and connected to the charged conduct, so it was directly relevant rather than distracting collateral evidence. The computer evidence was relevant, relatively straightforward and did not divert the jury’s attention.
5. Sentence. The sentence had to be assessed by reference to the overall offending, taking account of the guidelines for individual offences and totality. The overall sentence of 10 years’ custody, with a two-year extended licence period, was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence, holding that the admission of the evidence did not render the trial unsafe and that the sentence was neither manifestly excessive nor wrong in principle: [2023] EWCA Crim 493.
• Crown Court at Kingston upon Thames: convicted the appellant on five counts and imposed an extended determinate sentence of 12 years, comprising 10 years’ custody and a two-year extended licence period.