Donald Adams [2019] EWCA Crim 1363

In the case of Regina v Donald Gordon Adams [2019] EWCA Crim 1363, the Court of Appeal (Lord Justice Leggatt, Mr Justice Popplewell and His Honour Judge Marson QC sitting as a judge of the Court of Appeal) quashed all fourteen convictions for historic sexual offences on the ground that the trial judge failed to give any direction about whether evidence of one complainant could be relied upon when considering the allegations made by the other.

Mr Adams had been convicted at Cardiff Crown Court before His Honour Judge Vosper QC and a jury of six counts of rape and eight counts of indecent assault, and sentenced to a total of fifteen years’ imprisonment. Two further counts had been left to lie on the file on the basis of no evidence offered. Mr Adams was born in February 1940 and was seventy-seven at the time of trial and of previous good character. He died in October 2018, but approval was granted to his widow under section 44A of the Criminal Appeal Act 1968 to continue the appeal. Limited leave to appeal on three grounds was granted by the full court on 5 March 2019.

The offences were alleged to have been committed between 1980 and 1987 against two complainants, referred to as M and G to preserve their anonymity, both of whom had been members of a brass band of which Mr Adams was also a member. M, a female born in 1967, alleged that Mr Adams had first abused her on Bonfire Night 1980 when she was about thirteen, after he gave her a lift home from band practice. She said he routinely took her to a secluded common where he made her perform oral sex and raped her vaginally. She maintained this abuse continued until she was seventeen, when she became pregnant by him and the abuse stopped. She said she never consented and, although she admitted kissing him and participating in sexual acts, said she only did so because she was conditioned by earlier abuse. The first three counts related to the alleged Bonfire Night incident, with the remaining counts relating to M being specimen charges for each year when she was aged thirteen to seventeen. Mr Adams did not give evidence at trial but had answered questions in interview, admitting sexual activity with M but denying that any sexual acts took place before she was sixteen and asserting that all acts were consensual.

Two school friends of M gave evidence that she had told them about a relationship involving kissing Mr Adams when they were aged about fourteen, and one said that M would leave band practice with him and drive in the direction of the common. However, M’s mother stated that she finished her shift at approximately nine o’clock in the evening and that M would already be home when she returned. M had a history of mental health problems from 2004, including multiple hospital admissions under section 3 of the Mental Health Act 1983 for treatment of Dialectic Behaviour Disorder, a condition characterised by taking extreme positions. Formal admissions of this history were made at trial. The defence case was that M was viewing her past relationship with Mr Adams through a distorted prism many years after the event.

The second complainant, G, a male born in 1970, gave evidence of two alleged incidents. The first, not charged because it occurred outside the United Kingdom, took place on board a ship during a band trip to Denmark. The second, which was the subject of count sixteen, occurred when G was sixteen and working on a youth training scheme at Debenhams in Cardiff. G said Mr Adams appeared unannounced at his workplace, took him to a pub, and then on the drive home stopped in a layby where an assault occurred. On each occasion G alleged that Mr Adams forced his penis into G’s mouth and tried to make G perform oral sex. G’s long term partner gave evidence that, many years earlier, G had told him about the second alleged incident.

M and G had been friendly and kept in touch. Facebook records disclosed on defence request revealed that they met at a pub in Cardiff in August 2016. M said in evidence she could not remember what was discussed; G said he wanted to find out M’s motive for making a complaint about Mr Adams. It was after this meeting that G agreed to give a full statement to police.

The three grounds on which leave was granted were that the judge erred in not directing the jury whether and how they could rely on the evidence of each complainant when considering the allegations made by the other; that the judge failed to direct the jury about the possibility of collusion between M and G in circumstances where the defence case was that M was manipulative and capable of influencing others; and that the judge in his summing up unfairly undermined a piece of defence evidence, namely that in interview Mr Adams had specifically identified G as another person under sixteen in the band, which the defence argued made it improbable that Mr Adams would have given police the name of someone he had assaulted.

Lord Justice Leggatt, giving the judgment of the court, held that the first ground was by far the most substantial. He set out the principles established in Regina v Freeman [2008] EWCA Crim 1863; [2009] 1 WLR 2723, identifying two main ways in which evidence of an offence allegedly committed on one occasion may be relevant to an allegation that the defendant committed an offence on another occasion. The first is by establishing a propensity to commit a particular kind of offence, which requires the jury to be sure that an offence of the relevant kind was committed on one or more occasions before they may rely on those proven offences to support an inference regarding another offence. The second way is by reducing the likelihood of innocent explanation for the allegations. Lord Justice Leggatt cited the observation of Rix LJ in Regina v H [2011] EWCA Crim 2344 at paragraph 24 that independent people do not make false allegations of a like nature against the same person in the absence of collusion or contamination. This second form of reasoning does not require the jury to find one allegation independently proved before treating evidence relating to that allegation as relevant to other alleged offences.

The court emphasised that both categories involve the use of evidence of the defendant’s bad character and that the admission of such evidence is governed by the relevant provisions of the Criminal Justice Act 2003. Furthermore, under Part 21 of the Criminal Procedure Rules there is a procedure requiring service of a notice and, if objected to, an application to the court to rule on the matter. In the present case the prosecution gave no notice that it wanted to rely on evidence of Mr Adams’s bad character except for a notice of intention to rely on the evidence relating to the alleged assault on G during the Denmark boat trip in connection with count sixteen. Mr Griffiths, appearing for the respondent at trial and on appeal, confirmed that the prosecution did not seek to put its case on the basis that evidence relating to any count was admissible in relation to any other count.

Lord Justice Leggatt held that, as that was the position adopted by the Crown, the jury ought to have been directed that in considering each count they should have regard only to evidence directly relevant to that count and should ignore evidence relating to other counts. In particular, the jury should have been told that when considering whether each alleged offence involving M was committed they should ignore the evidence relating to G’s allegations, and vice versa. In the absence of such a direction, the court thought a jury would naturally assume they were entitled to have regard to any evidence they heard if they thought it relevant.

No such direction was given by the judge. The only direction given was a standard direction to consider the case against and for the defendant on each count separately, but that did not tell the jury whether they could or could not, when considering a particular count, have regard to evidence relating to other counts or occasions. The court held that jurors were entitled to clear guidance on whether, when considering M’s evidence about Bonfire Night 1980, they were entitled to place reliance on any view they formed about the likelihood that G’s allegations were true. It was not made clear that they should treat evidence relating to G’s allegations as inadmissible on the counts relating to M, and vice versa.

Lord Justice Leggatt referred to Regina v H, in which the Court of Appeal treated as sufficient a standard direction about treating each count separately in circumstances where no ruling had been given that evidence was cross-admissible. The court expressed difficulty in understanding why that was thought adequate, but agreed with the observation at paragraph 31 that everything depends on the directions and facts of a particular case and the danger that the jury might seek to use the evidence of one complainant as evidence of guilt on counts concerned only with another complainant.

The court stated that had the prosecution sought to argue that 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. However, no such ruling was sought or given and, unless the procedure for admitting evidence of bad character was to be treated as a dead letter, that meant the evidence was inadmissible and Mr Adams was entitled to have the case decided on the basis that evidence on each count was inadmissible in relation to other counts, which made it necessary for the judge so to direct the jury.

Lord Justice Leggatt observed that the general tendency of criminal law over time has been towards gradual relaxation of rules of evidence and increasing willingness to trust the good sense and rationality of juries, but that the law had not yet reached the point where evidence of a defendant’s bad character could be left as a free for all. The particular ways in which evidence that a person has committed one offence may or may not be relevant in deciding whether that person is guilty of another offence are not always immediately obvious even to legal professionals and have had to be worked out by the courts in a number of cases. Lay jurors are entitled to assistance on these questions and cannot be expected to work out the approach the courts regard as proper for themselves. The court held it was essential that in a case of this kind the jury should be given clear directions on whether, and if so how, evidence relating to one count may be taken into account in deciding guilt on another count.

The court held that in this case no such direction was given and that 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 jurors’ decisions. The failure to give any such direction made Mr Adams’s convictions unsafe. The court considered the other grounds of appeal but held that neither matter of itself impaired the safety of the convictions. In short, the Court of Appeal quashed all fourteen convictions for historic sexual offences because the trial judge gave no direction about whether evidence of one complainant could properly be used when considering the allegations made by the other.

Freeman [2008] EWCA Crim 1863
H [2011] EWCA Crim 2344

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