R v AYS

Uncharged incidents allegedly committed by a defendant when under 14 may be admissible as bad-character evidence, even where the prosecution cannot prove that the defendant knew the conduct was seriously wrong. The presumption of doli incapax applies directly to a criminal charge, not to uncharged conduct relied on as evidence of reprehensible behaviour. Admissible evidence may still be excluded if its prejudicial effect makes admission unfair. Legally irrelevant questions by a trial judge will not make a conviction unsafe where they cause no unfair prejudice. Where the defence seeks admission of agreed complaint evidence, a further direction is not required unless the evidence creates a real risk of unfairness. Long delay in appealing requires good reason for the whole period.

The applicant was convicted after a trial in the Crown Court at Kingston upon Thames of an historic indecent assault against his younger sister, C. He was acquitted of two similar allegations concerning a cousin, C2. Four earlier incidents involving C were admitted as bad-character evidence, although the prosecution accepted that it could not prove the applicant knew, when aged under 14, that the conduct was seriously wrong.

The applicant sought a 313-day extension of time to apply for leave to appeal against conviction. He challenged the admission of the earlier incidents, questions asked by the Recorder about his knowledge of wrongdoing, and the absence of a fuller direction concerning an agreed fact about the grandmother's letter of wishes. The central issues were whether doli incapax affected the admissibility of the uncharged incidents and whether any procedural error rendered the conviction unsafe.

The applications for an extension of time and for leave to appeal against conviction were refused.

1. Extension of time. Under section 18(2) of the Criminal Appeal Act 1968, applications concerning conviction and sentence have separate 28-day time limits. Although an extension may be granted in an appropriate case, good reason must be shown for the whole period of delay. A convicted person cannot simply postpone an appeal until it becomes more convenient. The applicant's explanation largely concerned circumstances after sentence, by which time he was already out of time. The court was not satisfied that the delay was justified.
2. Earlier incidents. The circumstances were materially similar to those in R v DM [2016] EWCA Crim 674, whose analysis the court respectfully adopted. Because the applicant was not charged with the earlier incidents, doli incapax had no direct application to their admission as evidence. The prosecution therefore did not have to prove that he knew the conduct was seriously wrong before relying on the incidents as reprehensible behaviour relevant to the charged offence. The evidence was admissible through gateways (c) and (d) of section 101(1) of the Criminal Justice Act 2003. It was also open to the judge to consider whether its prejudicial effect required exclusion. On these facts, exclusion was not required.
3. Recorder's questions. The jury only needed to be sure that the earlier incidents occurred and, if so, whether they assisted in deciding the charged offence. The Recorder was wrong to think that the prosecution had to rebut doli incapax. The questions about whether the applicant knew the conduct was seriously wrong were consequently legally irrelevant. However, they caused no unfair prejudice and did not render the conviction unsafe. It would have been better if they had not been asked.
4. Grandmother's letter. The defence had wanted the evidence admitted in the agreed terms. C had confirmed that she had complained to her grandmother, and the existing direction made clear that a complaint did not provide independent support for the allegation. The Recorder could not properly direct that the complaint was incapable of showing consistency. The grandmother's subsequent death did not create additional prejudice.

None of the grounds was arguable. The proposed appeal would inevitably fail, so no purpose would have been served by extending time.

1. Court of Appeal (Criminal Division): On 23 May 2023, the full court refused the applications for an extension of time and for leave to appeal against conviction. [2023] EWCA Crim 730
2. Crown Court at Kingston upon Thames: Following a trial before a Recorder and jury, the applicant was convicted on 20 October 2021 and sentenced on 10 December 2021 to a suspended sentence order.