R v Robert James Barnett

A conviction returned at an earlier trial may be admitted on a retrial where it forms part of the facts of the alleged offending or is relevant bad-character evidence. The trial judge may admit it where its probative value on a live issue outweighs its prejudicial effect.

Under Police and Criminal Evidence Act 1984, section 74, the person convicted is taken to have committed the earlier offence unless the contrary is proved. A jury must nevertheless be directed that the earlier conviction does not automatically establish guilt of the charge being tried and cannot be the whole or main basis for conviction.

The applicant was convicted of rape at Durham Crown Court on 16 January 2023. At an earlier trial, the jury had convicted him of sexual assault but had been unable to reach a verdict on rape. The rape allegation was retried.

The prosecution alleged that, after the complainant became very drunk at a party, the applicant took her to a bedroom, sexually assaulted her and penetrated her. His case was that he had merely assisted her because she was drunk and had vomited on her clothing.

At the retrial, the judge admitted evidence of the sexual-assault conviction and directed the jury on its effect. The applicant renewed, before the Court of Appeal, an application for leave to appeal against conviction after refusal by a single judge. The issues were admissibility, the adequacy of the directions, and whether the rape conviction was arguably unsafe.

1. The renewed application for leave to appeal against conviction was refused. There was no arguable material misdirection and no arguable basis for finding the rape conviction unsafe.

2. The trial judge was entitled to admit the earlier sexual-assault conviction. It could be admitted either as evidence concerning the facts of the offence or as bad-character evidence relevant to the live issue. That issue was whether the applicant had acted as an innocent helper or had a sexual interest in the complainant. The judge was entitled to conclude that its probative value outweighed its prejudicial effect.

3. Section 74 of the Police and Criminal Evidence Act 1984 required the applicant to be treated as having committed the sexual assault unless the contrary was proved. The summing-up correctly explained that the earlier conviction did not automatically establish rape, that the jury must not be unduly prejudiced by it, and that rape could not be proved wholly or mainly by reference to it.

4. The judge also correctly directed that, if the applicant disputed the earlier conviction, he had to persuade the jury on the balance of probabilities that he was innocent. The additional observation that a bare assertion of innocence would rarely suffice was unnecessary but did not amount to an arguable material misdirection. The directions were consistent with those approved in R v C [2010] EWCA Crim 2971.

• Court of Appeal (Criminal Division). The renewed application for leave to appeal against conviction was refused: [2024] EWCA Crim 581.

• Court of Appeal (single judge). The application for leave to appeal against conviction was refused. The applicant renewed it before the court.

• Crown Court at Durham. The applicant was convicted of rape on 16 January 2023 after a retrial. At the first trial, he had been convicted of sexual assault and the jury had not reached a verdict on rape.