Practice and Procedure

R v S H (2003)

PUBLISHED May 1, 2003

Where the victim's character had been put in issue the judge was entitled to allow cross-examination on the defendant's previous convictions. The judge's summing up was fair and made clear that the relevance of previous convictions went to credibility only.Appeal against conviction by leave of the single judge. On 8 January 2002 at Reading Crown Court, before HH Judge Lait, the defendant ('H') was convicted of three counts of rape. H was sentenced to an extended sentence pursuant to s.85 Powers of Criminal Courts (Sentencing) Act 2000 with a custodial element of ten years' imprisonment on each count concurrently and an extended period of licence of six years. The victim ('V'), who was 18 years old at the time of this appeal, was H's stepdaughter. In March 2001 V stayed at a friend's house and made a complaint of sexual abuse against H and was reluctant to go home. The social services were called and a video statement was taken where allegations of rape were made. It was the prosecution's case that H raped V between the ages of 11 and 14. V gave evidence that rape occurred at least fortnightly and sometimes weekly and that the rapes always happened at weekends, during the night when her siblings were in bed and her mother at work. At 14 years old she had fallen pregnant and H told her to tell the doctor the baby was her boyfriend's. H signed the consent forms for an abortion and told V not to tell her mother. H denied any sexual relationship had occurred and said V should not be believed. Evidence was called from friends and V's mother that V often lied and was a very difficult child. H gave evidence that he did not often see V at weekends because she stayed with friends. He claimed that she had made up allegations of sexual abuse in the past and that when she fell pregnant it was she who did not want her mother to know. The prosecution applied to cross-examine H on his previous convictions as V's character had been put in issue. The application was granted and H was cross-examined on all his previous convictions including a conviction in 1988 for living off the immoral earnings of a prostitute. H appealed against conviction on the grounds that: (i) his previous convictions, particularly the 1988 conviction, should not have gone before the jury, because allegations made about V's character had been largely or substantially true; (ii) the 1988 conviction amounted to an attack on H's moral character and could have no bearing on his credibility, and members of the public, including the jury, were likely to take an extremely poor view of a man who lived off the immoral earnings of a prostitute; (iii) if the judge, in his discretion, was right to permit cross-examination then, in line with R v McCleod (1995) 1 Cr App R 591, the plainest warning was required as to the limited relevance of the previous convictions; and (iv) when directing the jury on the ingredients of rape the judge had misdirected the jury on the issue of consent.HELD: (1) The judge, in the exercise of his discretion, was entitled to permit the previous convictions to go before the jury. The attack on V's character was such that, even though it might have been justified, the interests of justice meant the jury were entitled to know of H's previous convictions. (2) When summing up, the judge made clear that the relevance of H's previous convictions went only to his credibility. The summing up was conspicuously fair and thorough. The evidence was fully summarised and appropriate comment was made to assist the jury in the course of the summing up. In the context of this case the direction on H's previous convictions was satisfactory and the court was not left with any doubt as to the safety of the verdict. (3) There was force in the submission that the 1988 conviction was something of which the jury was likely to take a poor view and its relevance to credibility was limited. However, in the context of the case as a whole the conviction could not be said to be unsafe by reason of the admission of that conviction. The judge plainly told the jury the only relevance was to credibility and believability. This was not a case where there was such a similarity between the 1988 conviction and the offence charged that the jury was likely to regard propensity as a factor. (4) When directing the jury on the ingredients of rape, the judge pointed out that they had to be sure V was not consenting and that, whilst she may have done nothing, submission was not the same as consent. Having regard to the age of V and the circumstances, the judge was entitled to give the direction in the form that he did. He made it clear that questions of fact were for the jury. In most cases of alleged rape it would be necessary to put the direction in a different way; however, the judge was entitled to deal with the matter in the way that he did.Appeal dismissed.