In this issue
Welcome
Challenging the use of DNA in sexual offences
When is a time limit not a time limit?
Victim of trafficking
Appeals against Sentence; England and Wales
Hong Kong Case Summary
Appeals against Conviction; England and Wales
Northern Ireland Case Summary
Appeals against Conviction; England and Wales

By Paul Taylor QC

 

Bad character evidence

 

R v Dean Hackett

 

[2019] EWCA Crim 983

 

DH was convicted of a single count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He appealed against conviction. The grounds related to bad character evidence.

The CACD quashed the conviction.

  1. It agreed that the basis upon which the bad character evidence was admitted was unclear from the judge's ruling.
  2. “In our judgment none of this evidence should have been admitted pursuant to the gateways of section 101 of the CJA 2003 as it was irrelevant, prejudicial and such probative value as it contained was significantly outweighed by its prejudicial nature.”
  3. “…if some background evidence was to have been adduced by agreement between the Crown and the defence, there should have been identification of the limits of such evidence, which then could have been the subject of judicial management.”
  4. “…if a judge is minded to permit evidence to be adduced as to background evidence it is incumbent upon the judge when ruling upon admissibility, to identify the reasons for its admission, the parameters of such evidence, how it can be used, in particular what can be said by any witness as to that evidence, whether it be in examination-in-chief or the extent of any cross-examination, and in that ruling to give an indication of how the jury will subsequently be directed upon that evidence.”
  5. There were deficiencies in the directions on the bad character in the summing up:
  1. The judge failed to direct the jury that they had to be sure of any particular aspect of the bad character evidence before they could consider placing reliance upon it;
  2. The judge did not identify for what particular purpose [this] evidence might be used by them, even if they were sure that the contested event or events occurred as JH recounted;
  3. The judge did not point out to the jury that, even if they were sure of one or more of the contentious background matters, on their own they proved nothing – that at the best the evidence was but a small part of the case and the jury's consideration should be principally focused on the events of the index offence.
  1. “In this case bad character evidence was wrongly admitted from the outset. The wrongful admission was then compounded by an absence of appropriate judicial management and inadequate legal directions.”
  2. “…individually and cumulatively the manner in which the bad character evidence was admitted, handled in cross-examination and left to the jury did give rise to substantial prejudice to the appellant such as to render the appellant's conviction unsafe.”

 

Commentary:

 

Trial counsel agreeing written directions: This is a good example of the CACD concluding that the written directions were flawed despite the fact that “counsel would have been shown the written directions of the judge, which were replicated in his oral summing-up, and each had the opportunity to comment upon those directions.” [See also Coutts [2006] 1 WLR 2164 at para 23: cf. Hunter [2015] 2 Cr.App.R. 9 (in relation to character directions) where the CACD observed that: “We should also add that if defence advocates do not take a point on the character directions at trial and or if they agree with the judge's proposed directions which are then given, these are good indications that nothing was amiss. The trial was considered fair by those who were present and understood the dynamic” [at 98]

 

Retrial? At the end of the judgement transcript there is an informative discussion regarding the application for a retrial and some of the factors that the CACD will take into account when deciding whether it is in the interests of justice to order a retrial.

 

 

 

 

Jury separating during retirement – pre booked holidays – factors that indicate unfair trial

 

R v Woodward, Spencer, Lamzini and Stoute

 

[2019] EWCA Crim 1002

 

The CACD considered the impact of jury separations during deliberations.

  1. There can be no general rule which determines that a particular length of time that a jury have been dispersed in the course of its deliberations necessarily renders a trial unfair or otherwise calls into question the safety of a conviction. The issue involves a fact sensitive analysis [77]
  2. The following matters may be material:
  1. The quality of the summing-up. If there are deficiencies in the summing-up, then this may be material. Conversely, while there is a risk that the length of dispersal will deprive the jury of a fair opportunity to assess the evidence, that risk will be reduced by a careful and meticulous summing-up;
  2. It may be necessary to consider the extent and quality of the material that the jury has available on retirement, and the extent to which this will enable them to focus on the issues and the evidence in relation to those issues. [In this case in addition to the written directions and the routes to verdicts, the jury had a considerable amount of written and photographic material.]
  3. The gap in the jury’s consideration between the summing up and the final verdicts will be relevant to the fairness of the process. The longer the period, the greater the risk that the jury will be unable to remember the evidence summarised in the summing up and the points made by the prosecution and defence.
  4. It may be relevant that an application was made to discharge the jury on the basis of the time in retirement at the time.
  5. The existence of indications which tend to establish that, by reason of the length of the trial and the retirement, the jury were unable to discharge their functions.
  6. The verdicts themselves will be relevant. Do they suggest, for example, that the jury were assessing the evidence in relation to each defendant or were unable to do so?.

 

 

 

s.18 OAPA – alternative offences (s.20)

 

R v M

 

[2019] EWCA Crim 1094

 

M was convicted of s.18 OAPA. The CACD considered whether the trial judge erred in failing to leave an alternative of s.20 wounding.

 

 

 

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