202400687 B2 - [2025] EWCA Crim 966

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.