IB [2019] EWCA Crim 1547

IB v The Crown [2019] EWCA Crim 1547 concerned an appeal against convictions for indecent assault in which the Court of Appeal, comprising Lord Justice Simon, Mr Justice Jeremy Baker and Mr Justice Freedman, refused renewed leave to appeal.

Following trial at Chester Crown Court on 3rd August 2018, the applicant was convicted on four counts of indecent assault (counts 7 to 10) and sentenced to five years’ imprisonment concurrently on each count. He was acquitted on six other counts (counts 1 to 6). The complainant was a girl aged between 10 and 13 at the time of the offences between 1998 and 2001. Counts 1 to 6 alleged touching in the bath; counts 7 and 8 alleged touching her vagina while she sat on his knee or was in bed; count 9 alleged licking her vagina; and count 10 alleged making her touch his penis to masturbate him.

The applicant had commenced a relationship with the complainant’s mother in the 1990s and later married her. The complainant stayed at his home at weekends, where the abuse was said to have occurred. In 2003, after a suicide attempt, the complainant disclosed abuse to her mother, who reported it to police. The police note recorded four incidents, including being touched whilst on his knee, touched in bed, and having his “bits” placed in her hand. In 2005, before emigrating, the complainant left a written note with a friend describing the abuse, which did not mention the bath incidents or licking. In 2016 she gave an ABE interview detailing all the allegations in counts 1 to 10.

The prosecution called the complainant’s older sister, who gave evidence that the applicant had peered at her through a hole in a door and washed her back whilst she was in the bath. Both the complainant and her mother gave descriptions of the applicant’s penis that were consistent. The applicant denied all offending and a character witness and friend gave evidence; the friend stated he had visited the home and seen nothing untoward and that the bathroom door had a lock.

The judge directed the jury that each count required separate consideration and that verdicts need not be consistent, though they might be if the jury believed or disbelieved the complainant entirely. During retirement the jury asked for a transcript of the 2017 ABE interview, specifically concerning the licking incident. The judge declined to provide a transcript but reminded the jury of the three references the complainant had made to licking in the interview.

Before trial, the prosecution disclosed that the complainant had on three previous occasions made sexual allegations against other men, including former partners of her mother, none resulting in conviction. Following conviction, the prosecution disclosed unused material showing that at the time of trial the complainant was under investigation for financial fraud, which she had admitted in police interviews. She admitted having cashed fraudulent gaming tickets altered by her then partner between April and June 2018, receiving approximately £3,000 of a total £68,000, which she spent on cannabis and electronic goods. She subsequently pleaded guilty to one fraud and two converting criminal property offences and was sentenced on 25th April 2019 to a community order.

The applicant advanced two grounds of appeal. First, he submitted that the convictions on counts 7 to 10 were inconsistent with the acquittals on counts 1 to 6 and that no reasonable jury could have returned such verdicts. Second, he argued that had the fraud evidence been disclosed before trial he would have applied to adduce it as bad character evidence under section 100(1)(b) of the Criminal Justice Act 2003, and that its admission would have significantly undermined the complainant’s creditworthiness, rendering the convictions unsafe. A further ground concerning cross-examination on the three previous sexual allegations was withdrawn.

The court applied the principles set out in R v Fanning [2016] EWCA Crim 550, holding that the burden lay on the applicant to establish that no reasonable jury properly applying their minds could have reached the verdicts, and that absent a specific direction a jury may be sure of credibility or reliability on one count but not on others. The judge had properly directed the jury to consider each count separately and had correctly stated that verdicts might differ. The court rejected any suggestion that an “all or nothing” direction was required.

The court found a logical evidential basis for the verdicts. With the exception of count 9, all counts on which the applicant was convicted had been foreshadowed in the 2003 police note and the 2005 written note, whereas neither document mentioned the bath incidents alleged in counts 1 to 6. There was also evidence of a lock on the bathroom door. Although the sister’s evidence of being washed in the bath might at first appear supportive of counts 1 to 6, the jury were entitled to reject her credibility or reliability on that aspect. As to count 9, the complainant’s mother had told police there could be other allegations she was unable to hear, and the complainant herself testified that she had omitted matters from her note. The jury had asked specifically about count 9 and the judge properly reminded them of the three relevant passages from the ABE interview. The court held that these were matters for the jury’s evaluation and that the verdicts were neither unreasonable nor lacking a logical rationale.

On the second ground, the court considered the fraud evidence de bene esse without determining its admissibility under section 23 of the Criminal Appeal Act 1968. The evidence plainly constituted bad character evidence requiring admission under section 100(1)(b) of the 2003 Act if it had substantial probative value in relation to a matter in issue of substantial importance. The court accepted that the complainant’s creditworthiness was an issue of substantial importance. Applying R v Brewster and Cromwell [2010] 2 Cr App R 20, however, the real question was whether the evidence had substantial probative value for that issue. The court emphasised that the trial concerned events some twenty years earlier when the complainant was aged 10 to 13, about which she made complaints in both 2003 and 2005, whereas the fraud was recent and involved entirely different subject matter. The court held that, given the substantial temporal and factual remove, the fraud evidence would not have had substantial probative value in relation to the complainant’s creditworthiness at trial and would therefore not have been admissible under section 100(1)(b).

In short, the convictions were neither inconsistent nor rendered unsafe by the undisclosed fraud evidence, and the renewed application for leave to appeal was accordingly refused.

Fanning and Others [2016] EWCA Crim 550; (2016) 2 Cr. App. R. 19
R v Brewster and Cromwell [2010] 2 Cr App R 20