Graham Ronald Head v R

Bad character evidence must involve reprehensible conduct and be relevant to an important matter in issue. Evidence that an accused has picked up intoxicated women, without evidence of a sexual motive, does not meet that standard merely because it may suggest opportunity or vulnerability. If such evidence is admitted and the jury are directed that it may support allegations of sexual offending, it can mislead them and render convictions unsafe. In circumstantial cases, gaps in the evidence form part of the circumstances and must not be ignored. A summing-up may nevertheless remain fair where the jury are directed to consider the whole evidence and any omissions do not cause unfairness.

Graham Ronald Head was convicted at Lewes Crown Court of kidnapping, attempted rape and assault by penetration. He received concurrent extended determinate sentences of 23 years. The prosecution had relied on evidence from three women and a police officer about encounters in which intoxicated women were picked up or assisted, seeking admission under section 101(1)(d) of the Criminal Justice Act 2003. The Court of Appeal considered whether that evidence was admissible bad character evidence and whether judicial interventions or the summing-up made the convictions unsafe.

Disposition

The appeal was allowed. The convictions on all counts were quashed. A retrial was ordered on the 2023 indictment, including the lesser alternative counts. The appellant was to be arraigned within two months, with the court of retrial to be directed by a Presiding Judge of the South Eastern Circuit. The retrial ought to be before a different judge.

1. The prosecution’s application under section 101(1)(d) of the Criminal Justice Act 2003 was inadequate. A bare reference to the subsection did not explain whether the conduct was reprehensible, how it was relevant to the issues, or the important matter in issue to which it related.

2. The evidence showed only a tendency to pick up women who were drunk or intoxicated. It did not support an inference that the appellant had a sexual motive or that the conduct was reprehensible. It therefore had no probative value on whether a sexual assault had occurred. In relation to the second complainant, any possible cross-admissibility could come only from proof of a sexual element in the incident involving the first complainant, not from the evidence of the other women.

3. The evidence was nevertheless admitted and the jury were directed that it might demonstrate a sexual motive. It provided no assistance and instead misled the jury. The jury were left with a substantial body of irrelevant evidence bearing on the allegations of sexual assault, so the Court could not be satisfied that the convictions were safe.

4. The remaining grounds failed. The judge’s interventions were sometimes unnecessary but did not amount to judicial cross-examination or descending into the arena. Questioning about local geography was unhelpful but concerned evidence of marginal impact. In a circumstantial case, gaps in the evidence are part of the circumstances and cannot simply be ignored, although the summing-up was fair overall and any factual errors were immaterial.

• Court of Appeal (Criminal Division): allowed the appeal, quashed all convictions and ordered a retrial: [2024] EWCA Crim 1487.
• Lewes Crown Court: convicted the appellant of kidnapping, attempted rape and assault by penetration and imposed concurrent extended determinate sentences of 23 years.