R v Neal Carver

Non-defendant bad character evidence is admissible only if a statutory gateway is satisfied. Under gateway (1)(b), it must have substantial probative value concerning a matter in issue that is of substantial importance in the case as a whole. Unsubstantiated, second-hand allegations which invite speculation will not meet that threshold, particularly where witness credibility is not substantially important.

A trial judge may ask a jury about its availability for further deliberations when giving a majority verdict direction. The inquiry is proper where it is carefully framed, the jury is reminded that it is under no time pressure, and the information is needed for case management. Guidance concerning a jury unable to sit beyond the week is fact-sensitive.

The appellant was convicted at the Crown Court at Snaresbrook, by a majority jury, of historic sexual offences against a child and sentenced to an overall custodial term of 10 years.

He appealed against conviction on two grounds. First, the trial judge had refused to admit reports concerning alleged sexual abuse by the complainant’s father and alleged threats by him, relied on as non-defendant bad character evidence. Secondly, the judge had asked the jury about its availability for the following week when giving a majority verdict direction. The central issues were whether the proposed evidence satisfied section 100 of the Criminal Justice Act 2003 and whether the jury inquiry created improper pressure.

The appeal was dismissed and the convictions were held to be safe.

1. The proposed evidence was bad character evidence and did not fall within section 98 of the Criminal Justice Act 2003. There was no realistic basis for treating it as important explanatory evidence under gateway (1)(a).
2. Section 109 required the court to assume that the evidence was true unless its falsity was obvious. That assumption defined the context of the admissibility decision, but did not determine admissibility or remove the need for a proper evidential basis for an allegation of falsity.
3. Gateway (1)(b) required substantial probative value in relation to a matter in issue which was of substantial importance in the context of the case as a whole. Section 100 was intended to prevent collateral character attacks, speculative cross-examination and satellite litigation. The father’s credibility was not of substantial importance. His evidence was already significantly damaged by inconsistencies, and the complainant had not been asked about the alleged abuse of her brother.
4. The proposed material consisted of an unproven, second-hand allegation of unspecified abuse. The brother was not a witness, the father denied the allegation, and the suggested inference that the complainant’s account had been contaminated would have required impermissible speculation. The evidence had no substantial probative value and would have amounted to a tangential smear against a non-defendant.
5. The management of the jury at the majority-verdict stage was for the trial judge. The judge was entitled to ask about availability for the following week at the same time as giving the direction, having reminded the jury that it was under no pressure of time and indicating that commitments would be accommodated. There was no proper basis for concluding that the jury had been pressured to return verdicts that day.
6. The Court did not find assistance in R v Abraham [2021] EWCA Crim 1000. The guidance there concerned a jury which could not sit beyond the end of the week. That premise did not apply because this jury could continue deliberating on the following Monday.

1. Court of Appeal (Criminal Division): appeal against conviction dismissed; the convictions were held to be safe, [2023] EWCA Crim 872.
2. Crown Court at Snaresbrook: the appellant was convicted by a majority jury and sentenced to an overall custodial term of 10 years.