R v John Mylrea Caine

Where a previous conviction is admissible as bad character evidence and proved, Police and Criminal Evidence Act 1984, section 74(3) creates a rebuttable presumption that the defendant committed the offence. The defendant may rebut it by giving evidence, including his own evidence, and the issue is for the jury on the balance of probabilities. A direction that the jury must treat the conviction as conclusively establishing guilt is a misdirection. The conviction may nevertheless remain safe where a properly directed jury could not rationally have found the presumption rebutted. A warning about the consequences of giving rebuttal evidence is not required. A sexual harm prevention order must be necessary and was quashed where continuing risk was minimal and necessity was unexplained.

The applicant was convicted at Caernarfon Crown Court on three counts of indecent assault on a male under 16, contrary to section 15 of the Sexual Offences Act 1956, concerning events in the late 1970s. The prosecution relied on six earlier indecent-assault convictions from 1999 as bad character evidence. The trial judge directed the jury to proceed on the basis that the applicant had been correctly convicted, although he had denied committing the earlier offences.

A single judge refused leave on the new conviction grounds and on sentence, but referred the original bad-character direction ground to the full court. The renewed application concerned the admissibility and management of the previous convictions, the safety of the conviction despite the misdirection, and the necessity of the sexual harm prevention order.

1. Disposition. Leave to appeal against conviction was granted on the trial counsel’s ground, but the conviction appeal was dismissed because the conviction remained safe. An extension of time and leave to appeal against sentence were granted, limited to the sexual harm prevention order. The order was quashed.
2. Admissibility. The previous convictions were admissible as evidence of a sexual interest in boys under 16 and a willingness to engage in unlawful activity with them. Their relevance went no further. That was sufficient in a case involving a complete denial that any sexual conduct had occurred or that the complainant was known to the applicant.
3. Section 74(3). Once the fact of an admissible conviction is proved, the defendant is taken to have committed the offence unless the contrary is proved on the balance of probabilities. The defendant may rely on his own evidence or evidence from another source; the statute requires no particular type of evidence. Where evidence is called which makes a case that the defendant did not commit the earlier offences, the issue must be left to the jury. The direction given here was therefore a misdirection because it removed that issue and necessarily implied that the applicant was lying.
4. Case management and safety. The court treated R v C [2010] EWCA Crim 2971 as addressing the defendant’s disclosure of the basis for rebutting earlier convictions and the consequential management of prosecution evidence. The judge was not required to warn the applicant about the consequences of giving evidence, although such discussion might be helpful. Following R v Carter [2007] EWCA Crim 1307, the distinction between a legal direction and strong comment was significant, but the decisive question was whether a properly directed jury could have accepted the rebuttal. On the evidence, it could not have done so.
5. Other grounds and sentence. The remaining conviction grounds were unarguable. No modified Turnbull direction was required because the issue was whether the incident occurred, rather than identification alone. The eight-year sentence was one the judge was entitled to impose after having measured regard to modern sentencing guidelines. A sexual harm prevention order should be imposed only where necessary. The applicant’s long period without offending, his age and his future bar from working with children, together with the absence of any explanation of necessity, meant that the order was unnecessary.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 225, leave was granted on the original conviction ground and the conviction appeal was dismissed. Leave to appeal sentence was granted in respect of the sexual harm prevention order, and that appeal was allowed with the order quashed.
• Single judge: Refused leave on the new conviction grounds and on sentence, but referred the original bad-character direction ground to the full court.
• Caernarfon Crown Court: Convicted the applicant on counts 1, 2 and 4 on 22 July 2022 and sentenced him on 3 August 2022 to eight years’ imprisonment, together with a 20-year sexual harm prevention order.