202400687 B2 - [2025] EWCA Crim 966

It is not necessary or desirable to provide more detail about the factual background save to say that the Appellant and V are closely related, with the Appellant being roughly 7 years older than V.

Before the retrial, the prosecution made an application pursuant to sections 101(1)(c) and (d) of the Criminal Justice Act 2003 to introduce bad character evidence that the Appellant had been convicted in the first trial on counts 13 and 14. The application said that the prosecution intended to rely upon the fact of the convictions and the circumstances of the offences at the retrial. We have not seen any ruling on the application, but it is plain that, at least by the time that evidence was called, all parties were proceeding on the basis that both the fact of the convictions and the circumstances of the offences were to be before the jury.

At the retrial the prosecution relied first and foremost on the evidence of V. Her ABE evidence about the facts of the alleged offending in relation to Counts 1-5 and counts 13-14 were played to the jury and she was cross-examined on them. It was put to her fairly and squarely that none of the events she alleged had in fact taken place and, specifically, that the events alleged by Counts 13 and 14 had not happened. She maintained her evidence that they had. In support of V’s evidence the prosecution called evidence from other members of V’s family and a childhood friend which went to questions of prior disclosure and opportunities for the alleged offending to have taken place. Reliance was also placed on text messages between V and the Appellant when V asked to speak to him face to face. The agreed facts included evidence relating to a suggested physical feature of the Appellant and the fact of the Appellant’s two convictions from the original trial. He was otherwise of previous good character. As we have said, V’s evidence both in chief and in cross-examination dealt with the circumstances of counts 13 and 14 as well as of counts 1-5.

The Appellant gave evidence on his own behalf. His defence was, as it had been throughout, a total denial that any of the alleged behaviour took place. His wife and other members of his family also gave evidence on his behalf. By the time he came to give evidence, the fact that he had been convicted on counts 13 and 14 was an agreed fact. Early in his evidence in chief, and repeatedly thereafter, he said that the sexual touching that had been the subject of Counts 13-14 had not occurred. He repeated that evidence at the end of his examination in chief:

“Q. We’ve heard that you were convicted of two counts of multi-incident indecent assaults against [V], namely touching her in her vaginal area, and that is one of our agreed facts, on 22 September of last year, so nearly a year ago. So far as those matters are concerned, that was obviously at a trial where you were convicted, is that right?

A. That’s correct, yes.

Q. And do you accept that you touched [V] in her vaginal area?

A. No, I never touched anyone, no.

Q. So you accept you were convicted by a jury, but you don ’t accept that that actually happened.

A. That’s correct, yes. That’s correct.”

The previous convictions were the first topic covered by the prosecution in cross-examination:

“Q. First and foremost you don ’t accept you’ve ever sexually assaulted her in any way, is that right?

A. That is correct.

Q. And although you were convicted, as you’ve just told this jury, by a previous jury, of indecently assaulting her, you do not accept that jury‘s verdict, is that right?

A.

That is correct.”

He was later cross-examined in some detail about whether he had or had not had the opportunity to abuse V as alleged in Counts 13-14 and whether he had taken advantage of that opportunity. He maintained his denials.

The issue for the jury on counts 1-5 was simple to state: were they sure that the assaults took place as alleged by V? As the Recorder put it in his written legal directions: “you have to be sure that [V] is telling you the truth and that her evidence is accurate and reliable.” The jury’s assessment of the credibility of V and the Appellant was therefore central and crucial to the outcome of the trial. Though the issue was simple to state, the jury’s task in resolving it was not straightforward, not least because of the long period between the alleged offending and V’s much later disclosures which led ultimately to the trials. We are of course not privy to the jury’s deliberations: we simply note that the Appellant’s conviction on counts 13 and 14 at the original trial and on Counts 1-5 at the retrial were by majority decisions.