202400687 B2 - [2025] EWCA Crim 966

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.