Brian Nurdon [2019] EWCA Crim 1674

The appellant was convicted of one count of indecent assault. He was acquitted of 19 other counts, and the jury were unable to reach a verdict on a further 5 counts. At a retrial on those 5 counts, he was convicted of 3 counts of indecent assault and 2 of rape. He was sentenced to a total of 18 years imprisonment.

The appellant was 68 and the offending dated back to when he was aged between 29 and 35. The victims were aged between 13 and 17 at the time and lived locally to him. They would go to his address when playing truant and would watch TV, drink alcohol and listen to music.

In appealing against conviction, it was submitted that the judge was wrong to rule at the retrial that the previous acquittals in respect of the victim DE were inadmissible, therefore his conviction for indecent assault of DE was unsafe.

Previous acquittals are inadmissible save in exceptional circumstances, and such circumstances did not apply in this case. The Court did not accept that the inference to be drawn from the acquittals was that the jury rejected DE’s evidence and found her to be untruthful. The earlier acquittals would have
been a dangerous distraction; leave was not granted on that ground.

The second ground was that the judge was wrong to allow the trial to proceed when the evidence given by DE and HL about their ages at the time was tenuous and inconsistent. Evidence concerning age was relevant to the issue of consent, but both asserted that they were under the age of consent at the time. Leave was also refused on that ground.

In respect of sentence, although it was high, the Court did not accept that it was inconsistent with the overall criminality.