202400687 B2 - [2025] EWCA Crim 966

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.