Page 436 - Magistrates Conference 2019

Page 29

126. On 21 October 2011, the appellant was convicted on five counts of sexual activity with a child contrary to
section 9(1) of the Sexual Offences Act 2003 (counts 1, 2, 4 and 7 were by majority verdict 10:2, and count 5 was by
majority verdict 11:1) The jury failed to reach a verdict on two counts of sexual activity with a child, one of which
related to an allegation made by C. He was sentenced to a total of 8 years imprisonment.

127. He appeals against conviction with leave of the single judge.

(b) Grounds of Appeal

128. The first ground of appeal is that, although the judge set out C's complaints to others in some detail in her
summing up, she failed to direct the jury that such complaints were not independent evidence of the truth of her
allegations. The question is whether this failure renders the conviction unsafe.

129. The relevant passages in the summing up were these:

"Now the prosecution, clearly, depends upon (C) and, to a lesser extent, [X]. If you cannot be sure that their evidence is
true you can't convict. That is the bottom line. What is encompassed in the expression 'their evidence'? Well, it
includes the video taped interviews you saw in (C)'s case, that is part of her evidence. It includes, in the case of both
girls, what they said under examination in court and it also includes what they may have said to others, essentially
before the matter was taken to the police or, indeed, after. That also is part of the evidence you can consider in deciding
what happened.

When you are looking at their accounts to others you should, obviously, compare and contrast them with the sworn
evidence that they gave (or their evidence under promise) in court. Decide whether they had been consistent or
inconsistent because that may have a bearing on their reliability. Also, consider the circumstances in which allegations
were first made; the background to the making of the allegations; the background to any additional information that was
later provided because all of that, too, may well have a great bearing on the reliability of the girl concerned..." [pages
6H - 7E]

[Having reminded the jury of the accounts that C gave to the police]

"So there are the various accounts that C has given, all of them put together so that [you] can think about them, their
consistency or otherwise in the circumstances in which they were given." [page 25C-D]

130. The second ground of appeal is that the direction on character was inadequate because it did not emphasise how
and why what is said to be the appellant's good character was to be considered in his favour. The single judge observed
in granting leave that she was "not wholly persuaded that the judge was right to agree that you were entitled to a
modified good character direction."

Ground 1: Recent Complaint: