202400687 B2 - [2025] EWCA Crim 966

The Judge provided written legal directions, including a direction specifically on the Appellant’s previous convictions. It was, so far as it went, entirely conventional, as follows:

“33.You have heard that on the 22 September 2021 [the Appellant] was convicted of two counts of multi-incident assault against [V], namely touching her in her vaginal area.

34.

The prosecution say that these convictions show that [the Appellant] had a tendency to commit offences of this type and so it is more likely that [the Appellant] committed these offences for which he standing trial before you.

35.The defence say that the previous convictions do not show that [the Appellant] had a tendency to act as alleged.

36.You have to decide whether these previous convictions show that [the Appellant] had a tendency to behave in this way. If you are not sure that [the Appellant’s] previous convictions show that he has such a tendency then you must ignore them. But if you are sure that they do show such a tendency then this may support the prosecution case. It is for you to say whether it does and if so to what extent.

37.

You must not convict [the Appellant] wholly or mainly because of the previous convictions. The fact that he committed the two offences of indecent assault does not prove that he also committed the offences of indecency with a Child, [or] that he incited [V] to commit an act of gross indecency. [The Appellant’s] previous convictions may only be used as some support for the prosecution case if, having assessed the evidence, you are satisfied that it is right so to do.”

The following points may be noted at this stage. First, this direction treated the fact of the convictions as a given. Second, the direction did not refer to the Appellant’s challenge to the circumstances underlying the convictions. There was therefore no direction to the jury about how they should approach the evidential disputes that they had heard. In fairness to the Recorder, no-one submitted to him that there should be one. But it meant that the only part of the direction that touched on the Appellant’s case was [35] which (a) was partial and inadequate because it said nothing about the Appellant’s fundamental challenge to the correctness of the convictions and V’s evidence about them; and (b) directed the jury that the only issue in relation to the convictions on counts 13 and 14 was whether they demonstrated a tendency to act as alleged in the retrial (i.e. counts 1-5)

During the course of her speech on behalf of the Appellant, his counsel referred to the convictions on counts 13 and 14 and said:

“And, as I say, you’ve got the learned Judge’s directions as to exactly how you should approach that matter. Now, what do we say about it? Well, what we say about it, …, is that you’ve heard from [the Appellant]. [He] says, “I didn’t do that’ I didn’t touch her vagina. I, obviously, accept that the jury convicted me of that, but I didn’t actually do it”. And so, obviously, what he says, …, is that the jury got it wrong; they made a mistake.”

Counsel then put forward the case in support of the Appellant’s assertion that the first jury made a mistake, referring to the possibility of miscarriages of justice, the Appellant’s evidence that he had not done the things alleged under counts 13 and 14, and his previous good character, with no other convictions recorded against a man now in his 60s. Put crudely, she suggested to the jury that if he had been a paedophile at the time of the alleged offences, he would have gone on in life as a paedophile and would not have arrived at court in his 60s as a man of previous good character, which he was.

At the conclusion of Defence Counsel’s speech, the Recorder raised the question whether she had gone too far:

“I fully accept, of course, that your client’s position is, ‘I did not commit those offences’, but you went on to make the comment that it would not be the first time that a jury has made a mistake. I am slightly concerned about the use of those words because it seems to me, what you are seeking to do is, invite the jury to go behind the decision of the first jury. I hope I am not being unfair but do tell me if you think I am but I am not sure that that was an appropriate way of doing it. Are you entitled to say to this jury, ‘Well, you can go behind the first jury’s decision’? You can certainly say, ‘The defendant, as he has said throughout, does not accept those convictions’. I am slightly – I have to raise it with you; I do not know whether you intended to say that?”

Counsel apologised and said that she was merely trying to reflect her client’s evidence, to which the Recorder responded:

“I am not going to invite you to correct it. What I might just say and it was not necessary that I say anything, is when I come to the defendant’s position and the two convictions that they will need to follow my directions on that.”

On Defence Counsel assenting to that course of action, the Recorder turned to Prosecution Counsel, Mrs May. She submitted that what Defence Counsel had said in suggesting that juries may make and that this jury had made a mistake “goes a step too far.” The present jury should be directed so that they understand “that they have no business or function in, as it were, doubting the conviction of the previous jury.” In the light of her submission, the Recorder proposed that he should go to the agreed fact of the convictions and say “You have my direction how you should approach those convictions … and leave it, I think, like that.” Prosecution Counsel endorsed that approach, submitting it should be made clear to the jury that “that conviction is something they cannot disregard on the basis of, “Oh well, perhaps, it was a mistake.”” The Recorder agreed.

As he had said he would, in part 2 of the summing up, the Recorder directed the jury as follows:

“Let me come to the defendant, [the Appellant] and the witnesses which were called on his behalf. You will know that it is agreed that, on 22 September 2021, [the Appellant] was convicted of two counts of multi-incident indecent assaults against [V], namely by touching her in her vaginal area. You have my directions how you should approach those convictions and you must apply those directions.”

As he summarised the evidence, he said in relation to the convictions on Counts 13 and 14:

“He does accept that he was convicted of the two counts of indecent assault but he does not accept that they actually happened. As I have told you, you have my directions as to how you should approach those convictions, ladies and gentlemen.”