Notable Cases: Lack of proper direction on contested Bad Character

February 2019

 

Mr A was accused of rape and physical/mental abuse by his ex wife.  This was after they had separated.  They had continued to see each other when he visited his children, and on occasion they had sex together.  He then found another woman a couple of years later, and his profile on Facebook changed to “Engaged”. This was when the allegations came out.

 

I am seeing more and more of these cases, where the ex finds another woman and suddenly serious allegations are made against them.  In this case she refused him access to his children, he insisted on seeing them, so it went from bad to worse.

 

There was a huge amount of “hearsay” evidence, alleging physical and mental abuse, which was all put to the jury, by friends of the complainant and her mother.  They used his Muslim faith against him; “women are rubbish”, so-called beating of the family dog, and alleged beating of the complainant – none of which formed counts on the Indictment.

 

The direction by the trial judge on that evidence was thus:

 

“Now you’ve heard about the allegations of violence in this case.
You’ve heard this because the prosecution’s case is that the
defendant controlled W, in that he treated her as a chattel and used
physical violence as part of that control, as well as the rapes.

 

In short, the prosecution’s case is that the physical violence and rapes
are closely interwoven. The defendant denies that the alleged
violence occurred, but accepts he moved her out of the way in the
kitchen in August 2011 and that they struck each other to the lip on
one occasion.

 

It is important to bear in mind, ladies and gentlemen, that this case is about allegations of rape, not of physical violence. You have heard about that for the reasons I’ve just explained. In short, if you are sure that the acts of physical
violence occurred but are unsure of any of the allegations of rape,
you must acquit the defendant of the rape counts.”

 

From the Appeal Judgement:

“That appears to be the sole direction on law as to how the jury should approach this body of evidence”.

And:

“In our judgment, there is force in ground 7. The evidence having been admitted, this was a case where there was a requirement for a carefully crafted direction that dealt with the problems arising from the evidence, the risk of prejudice, and assisted the jury as to how to apply this evidence in reaching their conclusions.

In our judgment, this would be so of this case even were all the evidence properly to be admitted under section 98. In that sense, there is a parallel between this case and that addressed in Lowe [2007] EWCA Crim 3047 and the more recent authority of RJ [2017] EWCA Crim 1943.

Obviously, if some of the evidence was only properly admitted as bad character evidence then, a full bad character direction would be required. Here, the appropriate approach, irrespective of what route by which this evidence was admitted, would have been something like the following.

1:  First, that the judge should identify to the jury in a simple fashion, but clearly, what evidence they were to consider in the way he was about to indicate.

2:  Secondly, to repeat the obvious point that, unless they were sure of this evidence, they should discard it. If they were unsure of part of it, they should disregard it and discard it.

3. Thirdly, to tell them that this category of evidence, however admitted, could not amount to direct proof of the guilt of the applicant.

4. Fourthly, if they were sure of the evidence, or the extent to which they were sure of it, what could it show? Here, a simple direction that it bore on W’s relationship to her husband and his (the applicant’s) attitudes to her would have sufficed.

5. Next, given the particular details concerning pork and the attitude to dogs and so forth, it would have been wise to give a direction to ensure that none of the jurors responded in mere prejudice. If they thought those particular points arose from the applicant’s Muslim background then they were not to place any reliance on them.

6. They then could have been told, in straightforward terms, that if they accepted all this evidence, it could show it was more likely that the husband would override the lack of consent of the wife.

7. It would also have been wise, finally, to emphasise to the jury that the August 2011 episode came after the last alleged rape.

…………………………

We turn finally, of course, to the question of the safety of the conviction. We have considered this issue very carefully. In the end there is a strong case against this applicant, but it was a case of one principal witness against another.

In such circumstances there is a realistic possibility that the jury may have turned to the contested evidence and applied it in an unguided way and that that may well have tipped the balance in reaching their convictions.

 

For that reason, we do regard these convictions as unsafe. We quash the convictions”.

 

A fortnight later trial counsel was able to get our man out of prison on bail pending retrial.  Fortunately for our defendant, the complainant AND her witnesses refused to give evidence so he and his now wife were spared the ordeal of a retrial and potential resentence.  He had been serving 15 years (he had done two by the time I was approached to help with the case).

 

Most of my appeals have happened after the accused had been released from prison.  It was a huge kick for the solicitor Paul Legg and counsel Matthew Scott (both on the list of recommended solicitors and barristers on this site), and myself, to actually be responsible for getting a person released from prison after being given such an horrendous sentence.