R v AFJ

On a submission of no case to answer, a judge should withdraw the case only where no reasonable jury could convict on the prosecution evidence. The issue is whether the necessary inference is properly open, not whether the jury would necessarily draw it. An inference of intent to commit a sexual offence may arise from the surrounding circumstances, even without completed sexual touching. A circumstantial case is not weak merely because it is circumstantial. Previous convictions may be important propensity evidence where their circumstances bear a striking similarity to the alleged offence. Passage of time does not necessarily remove their relevance. Prejudice does not make admission unfair where the evidence is relevant and can be addressed by a proper jury direction.

The prosecution charged the appellant with attempted robbery and assault with intent to commit a sexual offence. He pleaded guilty to attempted robbery. The trial judge refused the prosecution’s application to adduce evidence of convictions arising from a 2009 sexual attack and then upheld a submission of no case to answer on the sexual-offence charge. The jury was discharged, and the judge refused leave to appeal. The prosecution applied to the Court of Appeal under section 58 of the Criminal Justice Act 2003. The central issues were whether the evidence permitted a jury to infer an intent to commit a sexual offence and whether the previous convictions were relevant and fair as bad-character evidence.

Disposition. The court gave leave to appeal in respect of the no-case ruling, concluded that both rulings were wrong, allowed the appeal and directed that the case be retried before a different judge.

1. On the no-case submission, the judge could withdraw the charge only if no reasonable jury could convict on the prosecution evidence. The question was whether, on one view of the evidence, a reasonable jury could draw the appropriate inference. Whether the jury would ultimately reach that conclusion was not the issue (para [15]).
2. The evidence was capable of supporting an inference that the assault was preliminary to a sexual assault. The initial catcalling had a sexual connotation and immediately preceded the attack. The CCTV showed restraint, physical contact and movement towards the complainant’s lower body. There was no sign that the appellant attempted to take her bag or phone. The absence of pulling at clothing or clearly inappropriate hand placement did not make the sexual inference unavailable (para [14]).
3. The trial judge also wrongly categorised the prosecution case as weak. Although circumstantial, it was a sound inferential case. The observation in Hanson [2004] EWCA Crim 824 that bad-character evidence should not bolster a weak case did not justify exclusion because that premise was absent (paras [16]–[17]).
4. The 2009 convictions bore a striking similarity to the alleged offence: a lone woman was attacked at night, taken out of view and sexually assaulted. The appellant had been a mature man at the time, and the passage of time did not show that he had changed. The circumstances differed materially from Benabbou [2012] EWCA Crim 3088, where propensity evidence was limited and prejudice substantial. The evidence was relevant and important. Its prejudicial effect did not make admission unfair, provided the jury received an appropriate direction (para [17]).
5. The case was returned to the Crown Court for retrial by a different judge (para [18]).

• Crown Court: The trial judge refused the prosecution’s bad-character application, upheld a submission of no case to answer on the sexual-offence charge, discharged the jury, refused leave to appeal and declined to expedite the appeal.
• Court of Appeal (Criminal Division): Under section 58 of the Criminal Justice Act 2003, the court gave leave in respect of the no-case ruling, held both rulings wrong and allowed the appeal. The case was to be retried before a different judge. The decision is reported at [2023] EWCA Crim 866.