Philip Norman v R

The Appellant appeals with the leave of the full court against his conviction on 23 September 2022 by a majority of 11 to 1 on the retrial of five counts of indecency with a child. He had previously stood trial on an indictment containing 14 counts [“the original indictment”]. At the conclusion of the first trial, on 21 September 2021, he was acquitted of 6 counts of rape (Counts 1-6 of the original indictment) and one count of indecency with a child (Count 12). He was convicted by a majority of 10 to 1 on 2 counts of indecent assault (counts 13-14). The jury at the first trial were unable to reach a verdict on 5 counts of indecency with a child (counts 7-11). Because of when they were alleged to have occurred, all offences were charged under the relevant provisions of the Sexual Offences Act 1956.

All of the offences alleged by the original indictment were alleged to have been committed against the same victim, to whom we shall refer as V. All of the offences alleged in the original indictment were serious and we do not belittle them in any way by saying that counts 13-14 were relatively less serious than the others. The offending was alleged to have occurred between the mid-1970s and the mid-1980s, coming to an end when V was in her mid-teens and the Appellant’s life changed when he got married. Counts 1-6 of the original indictment, of which he was acquitted, included both single and multiple incident counts of rape over the period. Counts 7-12 included both single and multiple incident counts alleging that the Appellant forced V to perform oral sex on him over the period, count 12 (of which he was acquitted) being a multiple incident count. Count 13 was an offence of sexual touching of V on one occasion; count 14 was a multiple incident count alleging at least 5 occasions of sexual touching over the period.

At the retrial, the Appellant was charged with and convicted of the counts on which the original jury had been unable to reach a verdict i.e. counts 7-11 of the original indictment, now renumbered as counts 1-5 in the retrial indictment.

This appeal is brought on one ground, namely that the Recorder conducting the retrial erred in his directions to the jury about how they should approach and treat the Appellant’s convictions at the original trial on Counts 13 and 14 when considering their verdicts on what had originally been Counts 7-11 of the original indictment and were now charged as Counts 1-5 of the retrial indictment. Resolution of the appeal requires detailed consideration of the scope of section 74 of the Police and Criminal Evidence Act 1984 and its impact on what the jury should have been told in relation to what we shall continue to call counts 13 and 14.

At the hearing of the appeal the Appellant was represented by Ms Smart KC, who had not appeared at the trial. The prosecution was represented, as it had been at trial, by Mrs May. At the end of the hearing we reserved our decision and reasons. For the reasons set out in this judgment, our decision is that the appeal should be allowed and that the Appellant’s convictions on what we shall from now on call Counts 1-5 should be quashed.

Before the first trial the defendant provided a Defence Statement which denied that any of the offences alleged against him took place. In addition to specific denials of the particular acts constituting the offences alleged against him, he bolstered his case by denying the secondary evidence of what was alleged e.g. denying that he would ever go to V’s bedroom at night or that he would call her to the bathroom. No further or supplemental Defence Statement was prepared after the conclusion of the original trial.

It is not necessary or desirable to provide more detail about the factual background save to say that the Appellant and V are closely related, with the Appellant being roughly 7 years older than V.

Before the retrial, the prosecution made an application pursuant to sections 101(1)(c) and (d) of the Criminal Justice Act 2003 to introduce bad character evidence that the Appellant had been convicted in the first trial on counts 13 and 14. The application said that the prosecution intended to rely upon the fact of the convictions and the circumstances of the offences at the retrial. We have not seen any ruling on the application, but it is plain that, at least by the time that evidence was called, all parties were proceeding on the basis that both the fact of the convictions and the circumstances of the offences were to be before the jury.

At the retrial the prosecution relied first and foremost on the evidence of V. Her ABE evidence about the facts of the alleged offending in relation to Counts 1-5 and counts 13-14 were played to the jury and she was cross-examined on them. It was put to her fairly and squarely that none of the events she alleged had in fact taken place and, specifically, that the events alleged by Counts 13 and 14 had not happened. She maintained her evidence that they had. In support of V’s evidence the prosecution called evidence from other members of V’s family and a childhood friend which went to questions of prior disclosure and opportunities for the alleged offending to have taken place. Reliance was also placed on text messages between V and the Appellant when V asked to speak to him face to face. The agreed facts included evidence relating to a suggested physical feature of the Appellant and the fact of the Appellant’s two convictions from the original trial. He was otherwise of previous good character. As we have said, V’s evidence both in chief and in cross-examination dealt with the circumstances of counts 13 and 14 as well as of counts 1-5.

The Appellant gave evidence on his own behalf. His defence was, as it had been throughout, a total denial that any of the alleged behaviour took place. His wife and other members of his family also gave evidence on his behalf. By the time he came to give evidence, the fact that he had been convicted on counts 13 and 14 was an agreed fact. Early in his evidence in chief, and repeatedly thereafter, he said that the sexual touching that had been the subject of Counts 13-14 had not occurred. He repeated that evidence at the end of his examination in chief:

“Q. We’ve heard that you were convicted of two counts of multi-incident indecent assaults against [V], namely touching her in her vaginal area, and that is one of our agreed facts, on 22 September of last year, so nearly a year ago. So far as those matters are concerned, that was obviously at a trial where you were convicted, is that right?

A. That’s correct, yes.

Q. And do you accept that you touched [V] in her vaginal area?

A. No, I never touched anyone, no.

Q. So you accept you were convicted by a jury, but you don ’t accept that that actually happened.

A. That’s correct, yes. That’s correct.”

The previous convictions were the first topic covered by the prosecution in cross-examination:

“Q. First and foremost you don ’t accept you’ve ever sexually assaulted her in any way, is that right?

A. That is correct.

Q. And although you were convicted, as you’ve just told this jury, by a previous jury, of indecently assaulting her, you do not accept that jury‘s verdict, is that right?

A.

That is correct.”

He was later cross-examined in some detail about whether he had or had not had the opportunity to abuse V as alleged in Counts 13-14 and whether he had taken advantage of that opportunity. He maintained his denials.

The issue for the jury on counts 1-5 was simple to state: were they sure that the assaults took place as alleged by V? As the Recorder put it in his written legal directions: “you have to be sure that [V] is telling you the truth and that her evidence is accurate and reliable.” The jury’s assessment of the credibility of V and the Appellant was therefore central and crucial to the outcome of the trial. Though the issue was simple to state, the jury’s task in resolving it was not straightforward, not least because of the long period between the alleged offending and V’s much later disclosures which led ultimately to the trials. We are of course not privy to the jury’s deliberations: we simply note that the Appellant’s conviction on counts 13 and 14 at the original trial and on Counts 1-5 at the retrial were by majority decisions.

The Judge provided written legal directions, including a direction specifically on the Appellant’s previous convictions. It was, so far as it went, entirely conventional, as follows:

“33.You have heard that on the 22 September 2021 [the Appellant] was convicted of two counts of multi-incident assault against [V], namely touching her in her vaginal area.

34.

The prosecution say that these convictions show that [the Appellant] had a tendency to commit offences of this type and so it is more likely that [the Appellant] committed these offences for which he standing trial before you.

35.The defence say that the previous convictions do not show that [the Appellant] had a tendency to act as alleged.

36.You have to decide whether these previous convictions show that [the Appellant] had a tendency to behave in this way. If you are not sure that [the Appellant’s] previous convictions show that he has such a tendency then you must ignore them. But if you are sure that they do show such a tendency then this may support the prosecution case. It is for you to say whether it does and if so to what extent.

37.

You must not convict [the Appellant] wholly or mainly because of the previous convictions. The fact that he committed the two offences of indecent assault does not prove that he also committed the offences of indecency with a Child, [or] that he incited [V] to commit an act of gross indecency. [The Appellant’s] previous convictions may only be used as some support for the prosecution case if, having assessed the evidence, you are satisfied that it is right so to do.”

The following points may be noted at this stage. First, this direction treated the fact of the convictions as a given. Second, the direction did not refer to the Appellant’s challenge to the circumstances underlying the convictions. There was therefore no direction to the jury about how they should approach the evidential disputes that they had heard. In fairness to the Recorder, no-one submitted to him that there should be one. But it meant that the only part of the direction that touched on the Appellant’s case was [35] which (a) was partial and inadequate because it said nothing about the Appellant’s fundamental challenge to the correctness of the convictions and V’s evidence about them; and (b) directed the jury that the only issue in relation to the convictions on counts 13 and 14 was whether they demonstrated a tendency to act as alleged in the retrial (i.e. counts 1-5)

During the course of her speech on behalf of the Appellant, his counsel referred to the convictions on counts 13 and 14 and said:

“And, as I say, you’ve got the learned Judge’s directions as to exactly how you should approach that matter. Now, what do we say about it? Well, what we say about it, …, is that you’ve heard from [the Appellant]. [He] says, “I didn’t do that’ I didn’t touch her vagina. I, obviously, accept that the jury convicted me of that, but I didn’t actually do it”. And so, obviously, what he says, …, is that the jury got it wrong; they made a mistake.”

Counsel then put forward the case in support of the Appellant’s assertion that the first jury made a mistake, referring to the possibility of miscarriages of justice, the Appellant’s evidence that he had not done the things alleged under counts 13 and 14, and his previous good character, with no other convictions recorded against a man now in his 60s. Put crudely, she suggested to the jury that if he had been a paedophile at the time of the alleged offences, he would have gone on in life as a paedophile and would not have arrived at court in his 60s as a man of previous good character, which he was.

At the conclusion of Defence Counsel’s speech, the Recorder raised the question whether she had gone too far:

“I fully accept, of course, that your client’s position is, ‘I did not commit those offences’, but you went on to make the comment that it would not be the first time that a jury has made a mistake. I am slightly concerned about the use of those words because it seems to me, what you are seeking to do is, invite the jury to go behind the decision of the first jury. I hope I am not being unfair but do tell me if you think I am but I am not sure that that was an appropriate way of doing it. Are you entitled to say to this jury, ‘Well, you can go behind the first jury’s decision’? You can certainly say, ‘The defendant, as he has said throughout, does not accept those convictions’. I am slightly – I have to raise it with you; I do not know whether you intended to say that?”

Counsel apologised and said that she was merely trying to reflect her client’s evidence, to which the Recorder responded:

“I am not going to invite you to correct it. What I might just say and it was not necessary that I say anything, is when I come to the defendant’s position and the two convictions that they will need to follow my directions on that.”

On Defence Counsel assenting to that course of action, the Recorder turned to Prosecution Counsel, Mrs May. She submitted that what Defence Counsel had said in suggesting that juries may make and that this jury had made a mistake “goes a step too far.” The present jury should be directed so that they understand “that they have no business or function in, as it were, doubting the conviction of the previous jury.” In the light of her submission, the Recorder proposed that he should go to the agreed fact of the convictions and say “You have my direction how you should approach those convictions … and leave it, I think, like that.” Prosecution Counsel endorsed that approach, submitting it should be made clear to the jury that “that conviction is something they cannot disregard on the basis of, “Oh well, perhaps, it was a mistake.”” The Recorder agreed.

As he had said he would, in part 2 of the summing up, the Recorder directed the jury as follows:

“Let me come to the defendant, [the Appellant] and the witnesses which were called on his behalf. You will know that it is agreed that, on 22 September 2021, [the Appellant] was convicted of two counts of multi-incident indecent assaults against [V], namely by touching her in her vaginal area. You have my directions how you should approach those convictions and you must apply those directions.”

As he summarised the evidence, he said in relation to the convictions on Counts 13 and 14:

“He does accept that he was convicted of the two counts of indecent assault but he does not accept that they actually happened. As I have told you, you have my directions as to how you should approach those convictions, ladies and gentlemen.”

Section 74(3) of the Police and Criminal Evidence Act 1984 provides:

“In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence—

(a)

by or before any court in the United Kingdom; or

(b)

…,

he shall be taken to have committed that offence unless the contrary is proved.”

The appellant in Carter faced a number of charges alleging dishonesty in the making of insurance claims relating to a car repair business. He had previously pleaded guilty to four other indictments charging similar offences. He gave evidence, however, that he had not committed those offences and had pleaded guilty to them in the hope of protecting his brother. The trial judge directed the jury that the convictions were conclusive evidence of the appellant’s guilt so far as those offences were concerned. When the terms of section 74(3) were pointed out to him, he ruled that in order to rebut the presumption of guilt, a defendant must adduce evidence other than or in addition to his own bald assertion that he did not commit the offences. That was held to be a misdirection. Hughes LJ said:

“‘In that ruling, we are satisfied, and indeed the Crown concedes, that the judge remained in the error which he had previously adopted. There is no warrant in the statute for the proposition that evidence to rebut the presumption created by conviction must be of any particular kind. There is no warrant for the proposition that as a matter of law the defendant’s own assertion cannot ever rebut the presumption. The correct position was that the decision whether the defendant had proved the contrary in accordance with subsection (3) of section 74 was a question not of law for the judge but of fact for the jury and it should have been left to the jury. That said, it is quite apparent that, had it been left to the jury in the way that it should have been, the judge would have been entitled, and on the facts of this case virtually bound, to offer the jury strong comment about the limited nature of the evidence that the defendant had put forward.”

In C the appellant contended that a ruling by the trial judge had imposed an improper restriction on his right to prove that he had not committed offences of which he had previously been convicted. In giving the judgment of the Court, Lord Judge LCJ addressed the meaning and scope of section 74(3):

“Section 74(3) is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial.”

In the following paragraphs, the Court addressed the problem to which this uncomplicated section gives rise, namely the danger of undesirable satellite litigation and the need for effective case management to ensure fairness between the prosecution, who have the benefit of the initial presumption that the defendant committed the offence, and the defendant, who is entitled to deploy “all the ordinary processes of the court” for the purpose of seeking to prove that he did not in fact commit the offence and therefore that the jury in the subsequent trial should disregard the conviction. Having acknowledged the danger of undesirable satellite litigation, the Court continued at [10]-[11]:

“10.

… That danger acknowledged, the stark principle remains that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown’s case against him or to advance evidence in support of his own case. That principle extends to evidential presumptions relating to his guilt of an earlier offence. To prevent him from doing so, or deny him the opportunity of adducing admissible evidence that he did not commit the earlier offence would be likely to result in an unfair trial of the present offences.

11.

… We agree that the way in which the right to challenge the conviction is exercised must be subject to proper judicial control and case management, but if what [the trial judge] was saying was that the overriding objective could nullify the exercise of a right granted by primary legislation, such an approach would be wrong.”

At [12]-[15] the Court gave guidance on how matters should be case-managed where a defendant wishes to rely on section 74 and to prove that he did not commit the offence of which he had been convicted:

“12.

… The real issue is how to arrange the mechanics of the trial process so as to ensure that while the prosecution may adduce the admissible evidence which proves the defendant’s guilt, he should continue to be able to address and refute it, even when that evidence takes the form of a previous conviction, and without at the same time turning the present trial into a re-trial of the [previous] offences.

13.

…

14.

In our judgment it is essential that the defendant should provide a more detailed defence statement in which, quite apart from setting out his case in relation to the offences with which he is presently charged, he should identify all the ingredients of the case which he will advance for the purposes of discharging the evidential burden of proving that he did not commit the earlier [previous] offences. That may enable the prosecution to prepare draft admissions of fact, and also to collate the necessary evidence. The bare assertion that the defendant did not commit these offences is inadequate.

15.

Informed by the defence statement the Crown will prepare its case. It is a broad rule of practice that the Crown should call all the evidence it intends to adduce to establish the defendant’s guilt before the end of its case. If that principle were to apply in a case like the present, it would in effect mean that the Crown would be obliged to re-present the evidence which led to the jury to convict the defendant of the [previous] offences. That would nullify the statutory provisions which enable the Crown to rely on the fact that he was convicted. It would be satellite litigation indeed. Although in the ultimate analysis it will be for the trial judge to make whatever decisions are appropriate for the proper conduct of the trial, as it seems to us, it would at the very least be open to him to consider permitting the Crown to postpone its decision whether to call any evidence to confirm the guilt of the earlier offences and the correctness of the convictions until after the close of the defendant’s case.

It will immediately be noticed that there is a potential tension between (a) the endorsement of the stark principle that the defendant is entitled to challenge correctness of an earlier conviction and (b) the sentence at the end of [14] that “the bare assertion that the defendant did not commit these offences is inadequate.” Viewed in context, and having regard to the clarity of the stark principle, the sentence at the end of [14] is to be understood as drawing the distinction between a bare assertion that the defendant did not commit the offences and the obligation described earlier in [14] that the defendant should identify all the ingredients of the case which he will advance for the purposes of discharging the evidential burden of proving that he did not commit the earlier [previous] offences. Seen in that light, the last sentence of [14] is consistent with what has gone before: the defendant should identify the ingredients of the case he will advance (so that the prosecution can address it and respond accordingly) rather than merely asserting a bare denial, which runs the risk of the prosecution being unfairly taken by surprise. If the last sentence of [14] were to be treated as a black-letter rule of law that a person cannot seek to rely upon section 74(3) where the only evidence that he can muster is his own evidence that asserts that he was wrongly convicted, that would in our judgment be irreconcilable with the fundamental and stark principle that the Court in C was at pains to endorse. It would also be contrary to the decision in Carter, to which we have referred above.

In our judgment, the combined effect of [14] and [15] of C is to emphasise the need for flexible case management to ensure that the fair balance between the prosecution and the defence that is inherent in and integral to section 74(3) is maintained. Taken in conjunction with the citation from Carter that we have set out above, there are no hard and fast rules about what evidence may or may not be adduced by a defendant: that will depend upon what properly admissible evidence is available to them. What matters is that the prosecution should be in a position to decide how to respond to the case that the defendant can advance; and that may involve the prosecution calling its evidence in advance of the defendant giving theirs (as in this case) or, as a matter of fair case management, the prosecution being permitted to postpone their decision about how to react (as contemplated by [15] of C). Depending upon the facts of the case it may be appropriate for the trial judge to offer comment on the limitations (and, by parity of reasoning, the strengths) of the evidence that the defendant has put forward: but, once properly raised, the issue will be for the jury to decide.

In Caine the applicant sought leave to appeal against convictions in 2022 of offences of indecent assault on a male person, contrary to section 15 of the Offences Against the Person Act 1956. The convictions were based upon conduct in the late 1970s against a victim identified as C. In his Defence Statement the applicant had said that he never knew C and that C had simply invented the allegations.

The prosecution had applied to adduce evidence that the applicant had been convicted in February 1999 of six counts of indecent assault on a male person under 16, for which he had been sentenced to 3 years imprisonment. The earliest of those assaults occurred in 1977, at about the same time as the matters involving C with which he was now charged. The others occurred some 12-16 years later. The prosecution applied to adduce evidence of the earlier convictions on the ground that they demonstrated that the applicant had a tendency to commit sexual offences against young boys and a sexual interest in them. In his Defence Statement the applicant said that he still maintained his innocence in relation to all of the previous allegations; his defence was that none of the sexual incidents described actually took place.

The Judge ruled that the earlier convictions were admissible. The bad character evidence was put before the Jury in the form of Agreed Facts that set out the number and nature of the offences, the period over which they had been committed and the date and the location of the convictions. At trial, the applicant gave evidence. He denied that he had committed the offences of which he had been convicted in 1999 and was cross-examined on the basis that he had not been believed by the jury in 1999. The applicant maintained his evidence that the incidents had not happened. He did not call any further evidence to support his denials. In due course the jury convicted him.

As set out in the judgment of the Court given by Males LJ, what happened when the Judge came to sum up was as follows:

“21.

At the conclusion of the evidence, defence counsel submitted that the issue whether the applicant was guilty of the Manchester offences should be left to the jury. The judge rejected that submission. In his summing up he directed the jury as follows:

‘You have heard that the Defendant has previous convictions... and you have details of them in the agreed facts document. Although he denies that he was correctly convicted, for your purposes, you must work on the basis that he was correctly convicted of those offences. However, that does not mean he must have lied to you about the offences with which he is charged in these proceedings.’

22.

The judge went on to explain the ways in which the evidence might be relevant. One was that it was capable of showing that the applicant had a tendency to commit sexual offences against young boys. The other was that it was the applicant’s case that C had invented the allegations against him and it was his case that C had found out about his previous convictions from the publicity which they had received at the time and had used them to make up allegations of his own against the applicant, although the applicant was unable to suggest any motive which C may have had for doing so.”

One of the grounds of appeal advanced on behalf of the applicant relied upon section 74(3). It was submitted that the applicant had given evidence that he did not commit the offences of which he had been convicted in the earlier proceedings. It was open to him to do so and, if the jury believed him, he would successfully have proved the contrary for the purpose of section 74(3). Accordingly, it was submitted that the judge ought to have left this issue to the jury and to have directed them that, if they accepted the applicant’s evidence, they should treat the previous convictions as being incapable of providing any evidence supporting the prosecution allegations in the present case.

The Court of Appeal accepted those submissions. In doing so the Court said:

“38.

… Instead of giving such a direction, the judge directed the jury that they must work on the basis that the applicant was correctly convicted of the bad character offences. That necessarily carried with it, not only that the previous convictions were capable of being evidence against the applicant, but that the applicant had lied to the previous jury in his evidence to them, and indeed that he was lying to the present jury in saying that he was not guilty of the previous matters of which he had been convicted.”

At [41] the Court addressed the possibility that the trial judge had thought that, because he did not call any evidence beyond his own statement, the applicant was legally unable to discharge the burden of proving his innocence of the earlier matters to the civil standard, with the result that the jury were required to proceed on the basis that he had committed those other offences. The Court restated the principles established by Carter and C:

“If so, he was wrong about that. … [T]he true position is that where a defendant fails to call any evidence to prove that he did not commit some earlier offence that the prosecution has adduced in evidence against him, then the trial judge is not required to direct the jury in the terms argued for by the applicant because the defendant will not, in those circumstances, be able to discharge the burden upon him; but when the defendant does call evidence, whether that is his own evidence or evidence from another source, and thereby makes a case that he did not commit the earlier offences, then the trial judge should direct the jury that they can only hold those convictions against him if he fails to persuade them (to the civil standard) that he did not commit those offences.”

We respectfully endorse that statement of principle. In particular, where a defendant does not call any evidence at all to prove that he did not commit some earlier offence, it would require some extraordinary circumstance (which we cannot conceive in the abstract) to justify reliance on section 74(3) simply on the basis of argument and submissions. That said, while evidence is required to prove that the defendant did not commit the earlier offence, there is no rule or principle that precludes reliance on section 74(3) simply because the evidence comes from the defendant alone or because such evidence amounts to no more than his bare statement.

That being so, the issue in Caine was whether, despite the misdirection, the applicant’s conviction was safe. The Court held that it was and dismissed the application. It did so in the light of the applicant’s assertion that no jury properly directed could reasonably conclude that the applicant was innocent of the earlier offences based on the evidence the applicant could give. That was taken by the Court as “simply another way of saying that the applicant was incapable of discharging the burden upon him in the particular circumstances of this case.” The Court continued at [51]-[53]:

“51.

If the judge had given a proper direction, leaving to the jury the issue whether the applicant had successfully rebutted the presumption of guilt in respect of the Manchester offences, the judge would have been entitled, and probably bound, to explain to the jury that, although little was now known about the circumstances of those offences, they had been the subject of the trial in Manchester, at which the prosecution would have called evidence, and the applicant had denied his guilt, and that the verdict of the jury indicated that they found that the applicant was guilty, despite his evidence that the incidents in question never happened. He would then have directed the jury in the present case that it was for them to decide whether they were satisfied, on the balance of probabilities, that the applicant was not guilty of those earlier offences. In those circumstances, we agree that the only rational conclusion which the jury could reach was that the applicant had failed to discharge the burden upon him and therefore that he was guilty of the previous offences.

52.

The only aspect which has caused us some disquiet is that the judge’s direction to the jury in the present case amounted in effect to directing them that they should disbelieve the applicant’s evidence that he had not committed the bad character offences or, in other words, that he was lying to them in his evidence when he said that he was not guilty. That was also a concern in Carter. Lord Justice Hughes said (emphasis added):

‘Mr Leonard’s submission is that nevertheless this misdirection was a critical one. His submission is this: the learned judge’s direction carried the necessary implication that this jury was told on the authority of the judge that the defendant had lied to it when he said that he was not guilty of the Ferrari offences. That, in a case which depended very largely on whether the jury accepted or recommended the defendant’s evidence in relation to all the counts that he faced, meant, says Mr Leonard, that the jury was given an improper steer which is bound to have affected its decision on the primary question of guilt.

For the Crown, Mr Mandel counters that the defendant was on any view a self confessed liar. Even if the defendant’s present assertion were correct, it would follow, says Mr Mandel, that he had lied to the court in the solemn matter of entering pleas of guilty to serious offences of dishonesty. As to that, we agree, of course, that the defendant was on his own account someone who had lied in relation to that serious matter to the court on the earlier occasion. We think, however, that Mr Leonard is right to draw a distinction between a jury being faced, on the one hand, with a defendant who is shown to have lied on the previous occasion to the court and who offers some sort of reason for having done so, and, on the other, with a defendant in relation to whom it is told by the judge “He has lied to you in this case on his oath”. In the first case the jury can address the question of whether the explanation offered is good enough or not. In the second, the question of the defendant’s credibility is concluded by the judge’s direction. So the answer to the misdirection is not sufficiently given by the fact that even on the defendant’s own account he was a self confessed liar.

That, however, leaves, as it seems to us, two propositions which simply cannot be contradicted. The first is that the difference between what the judge said to the jury and what he should have said is in the end relatively small. That is so but it is significant because it is the difference between a direction of law and strong comment as to evidence. That is a difference which is of importance. Much more important is the second proposition. We have asked ourselves whether there is any basis upon which this jury, had it been properly directed, could have concluded that this defendant had successfully rebutted the evidence of guilt which was given by his previous pleas of guilty. The short answer to that is that he could not possibly have done so. He had given no explanation beyond the fact that he wished to save his brother. That, of course, was equally consistent with his being guilty as with his not being guilty. ...”

53.

For that reason, despite the misdirection, the appeal in Carter was dismissed.”

The Court in Caine held that similar reasoning applied and concluded that there was no basis upon which the jury, properly directed, could have concluded that the appellant had successfully rebutted the evidence of guilt which was given by his previous conviction. In the result, leave to appeal was given but the appeal was dismissed.

In June 2023 the applicant was convicted of serious sexual offences against a child, which were alleged to have occurred in November 2021. His defence was one of complete denial that anything had happened. Before his 2023 trial, the prosecution applied to admit the fact that he had in 2017 been convicted after trial of an offence of sexual activity with a different child. At trial, the Defence sought to adduce evidence, not to challenge the fact of the 2017 conviction but to impugn the credibility of the complainant in the 2017 case. The proposed evidence was from three witnesses who had given evidence at the 2017 trial but who now were to say that the complainant in the 2017 trial had given different accounts at different times of the assault that was in issue in that trial. In the 2023 trial the defence were not able to procure their attendance. At the 2017 trial, the defence had not introduced evidence from those witnesses on oath but had applied to put in their section 9 statements. The 2023 trial judge refused the application to adduce their evidence in the current trial. The applicant gave evidence in his own defence in which he maintained his innocence of the earlier offence, claiming that the police had set him up.

At [20] the court summarised the issue and the relevant factors:

“20.

In the present case, the applicant was not seeking to call fresh evidence which might have proved that he was innocent of the offence of which he had been convicted, but to argue that his conviction was wrongful on precisely the same evidence on which a previous jury had convicted him. As the trial judge recognised, this was an invitation to conduct a rehearing of the earlier trial. Moreover, the previous offence was committed in circumstances in which only the complainant and the applicant were present. As HHJ Kamill said, in those circumstances it is difficult to see how adducing the evidence of three people who were not present and whose memories and reliability had already been assessed by the previous jury, could possibly assist.”

The Court agreed with the single judge’s refusal of leave on this ground “essentially for the reasons that he gave”. As he put it:

“Attempts, without material fresh evidence as to the primary facts, to argue that the first jury had simply got it wrong in convicting by advancing arguments as to the unreliability of the complainant at that trial were never going to prevail under s. 74 (3) of PACE. The trial Judge’s ruling on this aspect was justified.”

For those reasons, the renewed application for leave to appeal against conviction was refused.

Three features of the decision in Obi are to be noted. First, it was not a case where the trial judge prevented the defendant from attempting to rebut the evidential presumption in section 74(3). Second, there was no complaint that the judge had taken the issue away from the jury. Third, the decision that the excluded evidence was rightly excluded was based upon the assessment that adducing the evidence of three people who were not present at the time of the alleged offences and whose memories and reliability had already been assessed by the previous jury, could not possibly assist. There was therefore nothing more beyond the applicant’s maintaining his innocence, which was left to the jury and did not satisfy them.

Although there was no active case management to make provision for the Appellant’s case under section 74(3), it cannot be said that anything done by the Appellant amounted to an ambush or surprised the prosecution. What is more, the prosecution evidently decided not to postpone the question of evidence in rebuttal until after the Appellant had given his evidence, as they adduced V’s evidence before he had done so; and when the Appellant came to give evidence he was cross-examined about counts 13 and 14 as we have outlined above. We are therefore not persuaded that any difficulty arose in these respects from the absence of case management.

Where the absence of case management (either before or during the retrial) has had a malign effect is that neither counsel nor the Recorder appear to have been conscious of section 74(3) or the principles to which we have referred above. Although Caine and Obi post-date the Appellant’s retrial conviction, the essential principles were already well established: see the citations from Carter and C above. It may be said that the existence of an issue only arose during Defence Counsel’s speech, with the intervention of the Recorder and the prosecution and what came after. However, the seeds of error were sown earlier. It may first be noted that Defence Counsel’s cross-examination of V to the effect that the events alleged by Counts 13 and 14 had not happened would, if the subsequent stance taken by the Recorder with the encouragement of Prosecution Counsel was correct, have been an inadmissible attempt to prove that he had not committed the offences represented by Counts 13 and 14. Similarly, it would have been irrelevant for Prosecuting Counsel to start her cross-examination of the Appellant by referring to his not accepting the jury’s verdict.

We are in no doubt that the Appellant was entitled to challenge both the fact and the facts of his previous convictions and that Defence Counsel’s cross-examination of V and submission to the jury were within permissible bounds. It is a matter of regret that Defence Counsel did not stick to her guns and refer to section 74(3). It is a matter of even greater regret that Prosecution Counsel encouraged the Recorder to tell the jury that they had no business or function in doubting the conviction of the previous jury and that the Recorder adopted that submission. The briefest reference to Carter or C should have clarified the position.

This catalogue of errors resulted in what we consider to be a clear and serious misdirection. As we have identified above, the initial direction to the jury did not mention the Appellant’s challenge to the correctness of the previous convictions and so gave no direction at all about way in which section 74(3) should work. On the contrary, [35] of the legal directions effectively directed the jury that the previous convictions were a given. The error was compounded by what the Recorder said in part 2 of his summing up: see [21] and [22] above. The effect of that further direction was to affirm the fact of the convictions, with the only issue arising from them being said to be whether they showed a tendency to behave as alleged during the retrial. By this route, the Recorder effectively withdrew from the jury the question whether the Appellant had proved that he had not committed the offences the subject of Counts 13 and 14.

Does the misdirection matter? Put another way, can we be satisfied that the Appellant’s conviction is safe despite the misdirection? We start by identifying that there is a feature of this case that was absent in the authorities to which we have referred. In each of those cases, the previous convictions related to other victims than those who were the subject of the current charges. Here, the victim who was the subject of counts 13 and 14 and of counts 1 to 5 was the same, namely V.

In a “normal” case, where the victims are different, we accept the full force of the observations made in the authorities to which we have referred. In particular: (a) there may be circumstances where the Judge would be entitled, if not virtually bound, to offer the jury strong comment about the limited nature of the evidence that the defendant had put forward: see Carter; (b) where a defendant adduces evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial: see C; (c) there may be circumstances where the crown is permitted to postpone its decision on whether to call rebuttal evidence: see C; (d) where the defendant calls no evidence to prove that he did not commit the earlier offence he will not be able to discharge the burden upon him: see Caine; and (e) where the defendant does not seek to call fresh evidence which might have proved that he is innocent of the offence of which he had been convicted but seeks to argue on the basis of evidence from people who either did or could have given evidence undermining the prosecution case at the original trial, attempts to discharge the burden of proof are (at best) unlikely to succeed.

The facts of the present case are not normal because at the retrial both the Appellant and V gave their evidence about both counts 13 and 14 and counts 1-5. Once the stark principle that the Appellant was entitled to challenge the correctness of his previous convictions is acknowledged, it is clear that the retrial jury had to assess the credibility of V and the Appellant for themselves relying on what evidence was given about both counts 1-5 and counts 13-14. This was particularly important on the facts of the present case where, at the original trial, in addition to the jury having been unable to agree on counts 1-5, (a) the Appellant’s convictions on the relatively less serious counts 13-14 were by a majority; and (b) he had been acquitted of the 6 counts of rape. It was therefore essential that the issue of credibility be properly left to the jury to determine. Instead, the jury were effectively told that they should not doubt the convictions on counts 13 and 14. The inevitable consequence of that direction was not merely to remove an issue that should have been left to the jury but also that it effectively directed them that V’s evidence leading to the conviction on counts 13 and 14 was true and reliable (so that they could be sure of it) and that the Appellant’s was not. There’s the rub. For if the jury followed the directions they were given (which is to be assumed) they will have started their consideration of counts 1-5 on the basis that the Appellant’s evidence about counts 13 and 14 was untrue: see [38] of Caine, cited above. That can only have placed the Appellant at a severe and unfair disadvantage when the jury came to consider counts 1-5.

On the facts of this case, therefore, we take a different view from the view that was taken on different facts in Carter and Obi. In our judgment, this misdirection renders the appellant’s conviction unsafe.

For these reasons we allow the appeal against conviction.