The “Hardy Principle”: Timely, Targeted Disclosure Requests after a Bad-Character Ruling

Introduction

In R v Hardy ([2025] EWCA Crim 453) the Criminal Division of the Court of Appeal considered a raft of challenges to both conviction and sentence following a jury’s unanimous finding that the appellant, a serving police officer, had subjected his step-daughter to years of sexual abuse and coercive control. Although the appeal ultimately failed on every ground, the judgment is noteworthy for the clear guidance it offers on four practical trial-management questions:

• What is required of the prosecution and the defence once potentially damaging bad-character evidence is admitted?
• How should the sufficiency or “balance” of a judge’s summing-up be assessed?
• How should a sentencing court aggregate very large numbers of serious sexual offences while respecting the totality principle?
• In what way, if at all, does a defendant’s status as a police officer aggravate or mitigate sentence?

The most significant doctrinal clarification is the Court’s insistence that complaints about post-ruling disclosure must be raised contemporaneously and must be tied to a concrete, targeted request for material. Mere speculation that more could have been unearthed is insufficient. This commentary refers to that holding as the “Hardy Principle”.

Summary of the Judgment

• Conviction Appeal: Two grounds were advanced—(1) alleged disclosure failures after a bad-character ruling, and (2) alleged imbalance in the summing-up. Both grounds were rejected. The Court found that (a) extensive disclosure had in fact been given; (b) defence queries were not pursued by targeted applications under s.8 CPIA 1996; (c) objections were wholly speculative and raised too late; and (d) the summing-up, although longer on prosecution evidence, was legally impeccable and appropriately balanced.
• Sentence Appeal: The appellant challenged (1) a six-year uplift for the numerous additional offences, (2) the imposition and length of a six-year extended licence, and (3) reliance on his occupation as a police officer as an aggravating factor. The Court dismissed each challenge, holding that the 26-year custodial term plus six years’ extended licence was “stern but just” and not manifestly excessive.

Analysis

1. Precedents and Statutory Framework

• Sexual Offences (Amendment) Act 1992 – Victim anonymity provisions strictly applied in the judgment.
• Criminal Justice Act 2003, Pt 11 – Governs admissibility of bad-character evidence. Although not named, the judge’s mid-trial ruling plainly applied the s.101 gateway of “important explanatory evidence” and/or “important matters in issue between the parties”.
• Criminal Procedure and Investigations Act 1996 (CPIA) – s.3 primary disclosure duty; s.8 defence application for disclosure of specific material. The Court’s reasoning rests heavily on the statutory architecture and pre-existing authority, esp. R v H & C [2004] UKHL 3 (duty is materiality-based and targeted).
• Sentencing Act 2020, s.279 – Power to impose extended sentences for “specified” violent/sexual offences where an offender is “dangerous”.
• Sentencing Council Guidelines: Rape and Sexual Assault (2023 revision) – Utilised for category, starting point and range.

Although no earlier Court of Appeal authorities were expressly cited on disclosure, the Court’s approach is consistent with R v Ul-Hassan [2009] EWCA Crim 1626 and R v Olu [2010] EWCA Crim 2975, both emphasising that speculative “fishing expeditions” for material will not suffice to upset a conviction.

2. The Court’s Legal Reasoning

a. Disclosure after Bad-Character Ruling

The defence objected to bad-character evidence relating to (i) coercive behaviour towards two former partners and (ii) consensual urination fetish. The trial judge admitted the evidence; no disclosure complaint was voiced at that time. On appeal the defence reframed the issue: they argued that, post-ruling, the Crown failed to seek further material (e.g., a download of one partner’s phone) that might have been undermining.

The Court found four fatal defects in this argument:

1. Extensive disclosure had actually been given—some 30 separate categories of documents—demonstrated by a detailed prosecution schedule.
2. No contemporaneous objection or application under s.8 CPIA was pursued; the defence had offered no specific, reasoned request.
3. The alleged missing material was wholly speculative—mere hypothesis that “something helpful may be there”.
4. The trial judge was never invited to adjudicate on any disclosure dispute; appellate review is not a forum for raising points not argued below.

The Hardy Principle: Where bad-character evidence is admitted, any additional disclosure said to be necessary must be (i) identified with specificity, (ii) pursued by targeted application under CPIA, and (iii) litigated at trial. Failure to do so bars a later speculative challenge.

b. Balance in the Summing-Up

The defence advanced a purely quantitative complaint: more pages were devoted to prosecution evidence than defence. The Court labelled this a “meaningless mathematical exercise,” reiterating that (1) the judge’s legal directions were unchallenged, (2) the jury had been reminded to focus on their own assessment of the evidence, and (3) it is common (and appropriate) for a judge to spend longer on the Crown’s case where the defence is “bare denial.” The Court endorses the longstanding qualitative approach of R v Nelson [1997] 1 Cr App R 234: the question is whether the summing-up fairly encapsulates both sides’ essential points, not stopwatch parity.

c. Sentencing Methodology

The Court approved a two-stage approach:

1. Identify lead offences (here, the multiple vaginal rapes) and set an aggregate sentence for them, incorporating only those aggravating features that pertain to those counts.
2. Apply a “totality” uplift to account for additional counts: six years was described as “relatively modest” given at least 15 other rapes and numerous sexual assaults.

The Court also upheld a six-year extended licence period (out of a statutory maximum of eight) on the basis of continuing dangerousness, rejecting arguments that age at release or lack of prior convictions mitigated risk.

d. Police Officer Status

Accepting that a defendant’s occupation is not a stand-alone aggravator, the Court nevertheless found it relevant to both culpability and harm:

• It increased the complainant’s fear of reporting (harm).
• It demonstrated that the defendant knew the gravity and illegality of his conduct (culpability).

Any hardship arising from being a former police officer in custody was not a mitigating factor.

3. Impact of the Judgment

1. Disclosure Practice: Defence teams must now treat the “Hardy Principle” as a warning: disclosure challenges require immediate, specific, and formally recorded requests. Post-trial, speculative assertions will rarely carry weight on appeal.
2. Summing-Up Challenges: The Court’s refusal to count pages or minutes confirms the qualitative test and will likely reduce unmeritorious appeals based on perceived imbalance.
3. Sentencing for Serial Sexual Abuse: The case illustrates that, even within guideline ranges, courts may legitimately reach very high aggregate sentences by (a) selecting an elevated starting point for multiple rapes and (b) adding an uplift while respecting totality.
4. Professional Status and Abuse of Trust: While no “special category” exists, a defendant’s occupational authority can exacerbate both culpability and harm where it facilitates or conceals offending. That reasoning may influence future cases involving teachers, healthcare workers, or clergy.

Complex Concepts Simplified

• Bad-Character Evidence: Evidence about a defendant’s previous misconduct. It is admissible only through statutory “gateways” and is tightly controlled because of its prejudicial potential.
• Disclosure: The prosecution’s duty to provide the defence with (a) material on which it relies and (b) any material that may undermine the prosecution or assist the defence. A defendant who seeks more must make a targeted CPIA s.8 application.
• Summing-Up: The judge’s oral review of the evidence and legal directions to the jury. It must be fair and balanced but need not devote equal time to each side.
• Totality Principle: When sentencing for multiple offences, the overall sentence must be “just and proportionate” to the totality of offending, not a mechanical addition of consecutive terms.
• Extended Sentence: A hybrid sentence for dangerous offenders combining (1) an extended custodial period and (2) an extra period on licence (up to 8 years for sexual offences) designed to protect the public after release.

Conclusion

R v Hardy is not merely another failed conviction appeal; it is a clarion call to practitioners on both sides of the adversarial divide. The Court of Appeal has underscored that disclosure objections must be specific, timely, and raised before the trial judge—thus crystallising the “Hardy Principle”. It has reaffirmed that judges are not score-keepers of minutes spent on each side during summing-up, and it has provided a practical blueprint for sentencing courts grappling with prolific sexual offending. Finally, it confirms that professional status, while not creating a new sentencing category, can legitimately aggravate both harm and culpability where it is used to facilitate abuse. The decision therefore stands as an important precedent in criminal procedure, trial management, and sentencing for serious sexual offences, likely to be cited in future appeals where similar issues arise.