R v Ben Smith

A direction on cross-admissibility must be tailored to the particular evidence and must accurately explain the separate roles of coincidence and propensity. For coincidence, the jury must first exclude deliberate collusion or innocent contamination before assessing whether sufficiently similar independent allegations make coincidence unlikely. A propensity direction must identify the relevant alleged tendency and its permissible use between the relevant counts and complainants. It must not invite an undifferentiated use of coercive or controlling conduct as proof of rape, or create a risk of double counting coincidence and propensity. Where the prosecution has materially relied on cross-admissibility, a confused and insufficiently tailored propensity direction may render the convictions unsafe.

The appellant was convicted on 22 March 2023 of seven offences of rape and two offences of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76(1) and (11) of the Serious Crime Act 2015. He received a total sentence of 14 years’ imprisonment.

By leave of the single judge, he appealed against conviction. The prosecution had relied on cross-admissibility between the accounts of two former partners, C1 and C2, on the grounds of coincidence and propensity. The appeal challenged the adequacy of the jury directions, including the risk that contact through the appellant’s aunt had contaminated C2’s evidence and that the jury might use coercive or controlling conduct as propensity evidence for rape.

1. Appeal allowed. The court quashed all convictions because it could not be satisfied that they were safe. It ordered a retrial on all counts.
2. Cross-admissibility was an inevitable issue once the indictment was tried jointly. The relevant principle is that the force of multiple allegations may arise from their similarities and from the improbability of false accusations by separate and independent complainants. The jury should first be sure that there has been neither deliberate collusion nor innocent contamination before considering whether similarity makes coincidence unlikely.
3. The coincidence direction, although sparse and not a model, was adequate in this case. It required separate consideration of each count, addressed collusion and influence, and identified the contact through D as the defence case. The evidence was that D had not conveyed the details of C1’s allegations to C2.
4. The propensity direction was, however, unfit for purpose. It did not identify clearly how a finding on a count concerning one complainant could bear on allegations concerning the other. It did not distinguish the rape counts from the controlling or coercive behaviour counts. Nor did it explain the permissible relevance of conduct during sexual intercourse to the question of submission rather than consent. The direction also failed to assist the jury on avoiding double counting coincidence and propensity.
5. The prosecution had sought and relied upon cross-admissibility on both limbs. The court could not treat the defective direction as immaterial notwithstanding evidence independently supporting each complainant. It quashed the convictions, directed service of a fresh indictment within 28 days, and ordered retrial arrangements to be made for the Northern Circuit. A reporting order was made under section 4(2) of the Contempt of Court Act 1981.

• Court of Appeal (Criminal Division): By [2024] EWCA Crim 342, allowed the appeal against conviction, quashed all convictions and ordered a retrial.
• Trial court: On 22 March 2023, convicted the appellant of seven rapes and two offences under section 76(1) and (11) of the Serious Crime Act 2015, and imposed a total sentence of 14 years’ imprisonment.