Investigative Failures on Acquitted Allegations Do Not Undermine Safety of Convictions Supported by Strong Forensic Evidence

Introduction

In Hodgetts, R. v [2026] EWCA Crim 924, the Court of Appeal (Criminal Division), sitting as the Court Martial Appeal Court, refused an application for leave to appeal against conviction arising from a court martial at the Military Court Centre at Catterick. The applicant, a serving private soldier at the relevant time, had been convicted of one count of assault by penetration and three counts of sexual assault, and acquitted on other related allegations.

The central issue on the application was whether serious investigative shortcomings by the service police—said to concern an earlier alleged incident for which the applicant was acquitted—could render the convictions arising from a later incident unsafe. A secondary (contextual) issue concerned the admissibility of evidence alleging the complainant had made prior false complaints, sought under the “bad character” regime.

The court also reiterated the continuing effect of complainant anonymity under the Sexual Offences Amendment Act 1992.

Summary of the Judgment

  • The court refused leave to appeal and dismissed the application.
  • Any failure to investigate the “first incident” was ventilated at trial, was the subject of a judicial direction, and did not provide an arguable basis to undermine convictions relating to the “second incident”.
  • The convictions the applicant sought to challenge were supported by strong forensic evidence (DNA findings) for which there was no “remotely credible” innocent explanation on the evidence.
  • The court endorsed the trial judge advocate’s refusal to admit proposed non-defendant bad character evidence alleging prior false complaints, noting consistency with R v Hurley 2025 EWCA Crim 642.

Analysis

Precedents Cited

The only cited authority was R v Hurley 2025 EWCA Crim 642, which the court used to confirm the correct approach to alleged “previous false complaints” by a complainant in sexual cases.

1) R v Hurley 2025 EWCA Crim 642 — “proper evidential foundation” and caution against inferring falsity

Although Hurley was not available to the Assistant Judge Advocate General at the time of the ruling below, the Court of Appeal considered it would have reinforced the conclusion reached. The court highlighted two key points drawn from Hurley:

  • Non-pursuit is not proof of falsity: it is generally impermissible to infer an allegation was fabricated merely because a complainant later discontinued or did not pursue it to trial.
  • Multiple allegations do not, without more, show a tendency to lie: whether repeated complaints indicate fabrication is fact-specific; some complainants’ circumstances may expose them to repeated risk of sexual offending, so “frequency” alone is not a reliable marker of dishonesty.

The court’s treatment of Hurley functions as a reminder that attempts to deploy “false complaint” narratives must be anchored in evidence capable of supporting a fair inference of deliberate invention.

Legal Reasoning

A) Investigative failures: relevance, remedy, and the “safety” of convictions

The applicant’s complaint focused on the service police’s failure to investigate the earlier alleged incident properly—most notably: failure to interview the applicant about it, failure to obtain timely evidence from a potential witness (another soldier), and failure to pursue mobile phone inquiries. The argument was advanced as “misconduct” and said to have caused knock-on unfairness affecting the later-incident convictions.

The court’s reasoning proceeds in three linked steps:

  1. Institutional role of the appellate court: the Court Martial Appeal Court is concerned with whether convictions are unsafe, not with disciplining investigators. Even if investigative conduct is criticised, the appellate question remains whether the trial process and evidence render the resulting convictions unreliable.
  2. The defect was exposed and addressed at trial: the lack of investigation into the first incident was “fully investigated before the Board” (the court martial fact-finders), and the judge advocate directed them that if the applicant might have been prejudiced by the deficient investigation, they should take that into account when deciding whether matters were proved. The acquittals on those first-incident charges were consistent with the Board applying that caution.
  3. No logical bridge to undermine the later-incident convictions: the convictions challenged related to the second incident, where the Board convicted in a manner demonstrating careful discrimination between allegations (there were also acquittals on some second-incident counts). Crucially, the conviction for digital penetration of the vagina (assault by penetration) was strongly supported by DNA evidence, and the applicant’s suggested innocent mechanism (indirect transfer) had no expert evidential foundation; the expert evidence instead made indirect transfer less likely than direct contact. In those circumstances, the court could see no arguable basis to conclude the convictions were unsafe.

A notable feature is the court’s implicit insistence on materiality: even serious investigative shortcomings will not justify appellate intervention unless they can be shown to have a real bearing on the safety of the conviction(s) under challenge—particularly where (i) the relevant allegations resulted in acquittal, and (ii) the convictions rest on strong, case-specific corroboration.

B) Non-defendant bad character: prior alleged false complaints

The defence sought to adduce evidence under Criminal Justice Act 2003, section 101(a) and (b), alleging the complainant had previously made false sexual misconduct allegations against other servicemen. The judge advocate excluded the material for lack of a “proper evidential foundation” that the earlier allegations were deliberately fabricated.

On appeal, there was no “direct attack” on that ruling, and the court nevertheless stated it was “plainly right.” The court’s discussion of Hurley clarifies why: neither the absence of a prosecution decision nor a complainant’s withdrawal/non-pursuit, without additional probative material, supplies the evidential platform necessary to invite a fact-finder to infer conscious lying.

Impact

  • Military justice investigations: the decision signals that investigative failures may be criticised yet still be insufficient to disturb convictions where the trial process addresses the deficiency (including by directions) and the convictions rest on compelling evidence.
  • Appeals framed as “investigation misconduct”: applicants must articulate a concrete route from the failure to a realistic possibility of an unsafe conviction—speculation about what a witness “might” have said earlier is unlikely to suffice.
  • False-complaint narratives: the decision reinforces, consistently with R v Hurley 2025 EWCA Crim 642, that courts will demand a robust evidential underpinning before allowing cross-examination or evidence suggesting a complainant has a propensity to fabricate sexual allegations.
  • Forensic evidence and alternative explanations: where the prosecution relies on DNA to support intimate contact/penetration, defendants who assert innocent transfer risk evidential vulnerability unless they can put a scientifically plausible mechanism before the fact-finder.

Complex Concepts Simplified

  • “Unsafe conviction”: the appellate test is whether the conviction can be relied upon as sound in light of all the circumstances; it is not enough to show imperfections in the investigation unless they matter to reliability.
  • Achieving Best Evidence (ABE): a structured, recorded interview process used for complainants/witnesses; here, failure by the senior investigator to review the full ABE was criticised as contributing to gaps in investigation.
  • Non-defendant “bad character”: evidence about a non-defendant’s alleged misconduct (including alleged lying) is tightly controlled. Alleging that a complainant made “false complaints” previously requires a solid evidential basis, not inference from discontinuance.
  • Indirect DNA transfer: DNA may sometimes be transferred without direct intimate contact, but whether that is plausible depends on scientific evidence. Here, experts agreed indirect transfer was less likely given the nature/location of findings and the time elapsed.
  • Board (court martial fact-finders): the panel determining guilt in a court martial; judicial directions can require the Board to consider whether investigative failures should make them more cautious.

Conclusion

Hodgetts, R. v [2026] EWCA Crim 924 confirms that investigative shortcomings relating to allegations that end in acquittal will not, without a clear causal or logical connection, render unsafe convictions arising from separate allegations—particularly where the convictions are supported by strong forensic evidence and the trial tribunal was properly directed about the investigative deficiencies. The decision also aligns military justice practice with the approach in R v Hurley 2025 EWCA Crim 642: courts should not admit “previous false complaint” material absent a proper evidential foundation demonstrating deliberate fabrication, and they should be slow to treat non-pursuit as proof of falsity.