Donald Adams [2019] EWCA Crim 1363

The appellant was convicted following a retrial of rape and indecent assault and was sentenced to 15 years’ imprisonment. He began his appeal before he died, and his widow was granted approval under s44A of the Criminal Appeal Act 1968 to continue the appeal.

There were two complainants M (female) and G (male) who played in the same band as the appellant, when they were youths and he was an adult. M’s evidence was that she was first raped on the way home from band practice, and thereafter the same abuse routinely occurred, from the age of 13 to 17 at which time she had a child by the appellant. The appellant, in interview, admitted sexual activity but only once she was 16 and that it was consensual.

G said that he had been sexually abused twice by the appellant, once in Denmark and once in the UK when the appellant came to his work and took him to the pub for a drink. On the way home the appellant tried to force G to perform oral sex on him.

M and G kept in touch after leaving the band and Facebook records revealed they had met up in 2016. When asked M said she couldn’t remember what was discussed but G said he wanted to find out M’s motivation for making the complaint about the appellant. After that meeting G agreed to give a full statement to the police.

M had a history of involvement with mental health services as an adult and was diagnosed with Dialectic Behaviour Disorder, a condition characterised by taking extreme positions.

Leave to appeal was granted on three grounds. First that the judge erred in not giving any direction about whether, or how, they could rely on the evidence of each complainant when considering the allegations made by the other.

Second, he was wrong not to direct the jury about the possibility of collusion between M and G when it was a central pillar of the defence case that M was manipulative and capable of influencing others to support her allegations.

Finally, the judge undermined and cast doubt on a piece of evidence on which the defence was entitled to rely. In interview the appellant had been asked if he had spent time alone with anyone else in the band under the age of 16 and he referred to G. The defence argued the inherent improbability of giving the police the name of a person likely to make a similar complaint.

The most substantial ground is the first, one way in which such evidence may be relevant is propensity, another way is by reducing the likelihood of there being an innocent explanation for the allegations. The Crown did not put its case on the basis that evidence relating to any of the counts on the indictment was admissible in relation to the issue of whether the appellant was guilty on any other count. The jury should, therefore, have been directed that, in considering each count, they should only have regard to evidence directly relevant to that count and ignore evidence relating to other counts. In particular they should have been told that when considering M’s allegations to ignore the evidence in relation to the allegations made by G. In the absence of a direction the jury would naturally assume they were entitled to have regard to any of the evidence they had heard when considering any particular count.

If the prosecution had sought to argue the evidence of each complainant was admissible in relation to the allegations made by the other because it reduced the likelihood of innocent explanation, the evidence might properly have been admitted on that basis. No such ruling was sought or given. Although there has been “a gradual relaxation of rules of evidence and an increasing wiliness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way. But we have not yet reached the point where evidence of a defendant’s bad character can be left as a free for all.”

In this case no such direction was given, it was a case in which the question whether the evidence of each complainant was admissible in relation to the allegations made by the other was potentially of great significance to the juror’s decisions. The failure to give such a direction made the conviction unsafe. The other grounds were not addressed other than to say the Court was not persuaded that either matter of itself impaired the safety of the appellant’s convictions. The convictions were quashed.