Norman v Rex: Jury Autonomy over Same-Complainant Prior Convictions under s.74(3) PACE

Introduction

Court & Citation : England and Wales Court of Appeal (Criminal Division) – [2025] EWCA Crim 966.

In Norman v Rex the Court of Appeal quashed five convictions for indecency with a child that had been recorded at a 2022 retrial. The case revolves around how a jury should be directed when an accused has previous convictions concerning the same complainant and wishes to deny that conduct, thereby engaging the evidential presumption in s.74(3) of the Police and Criminal Evidence Act 1984 (“PACE”).

Parties:

• Appellant: Mr Norman – originally convicted of two counts of indecent assault (Counts 13–14) against V in 2021; retried and convicted in 2022 of five counts of indecency with the same child (renumbered Counts 1–5).
• Respondent: The Crown (Rex), represented by the CPS.

Key Issue: Whether the Recorder’s jury directions at the 2022 retrial—instructing jurors to treat the 2021 convictions as “given” and solely a question of propensity—unlawfully removed from them the statutory question under s.74(3) PACE: Has the accused proven, on the balance of probabilities, that he did not commit the earlier offences?

Summary of the Judgment

By unanimous decision the Court (Lewis LJ, Holgate J, Lodge J) allowed the appeal and quashed the 2022 convictions. It held:

• The Recorder’s directions were a “clear and serious misdirection”. They prevented the jury from considering Mr Norman’s positive case that the earlier convictions (Counts 13–14) were wrong.
• Section 74(3) PACE gives defendants an explicit right to rebut the presumption of guilt arising from a previous conviction, even through nothing more than their own sworn evidence.
• Because the earlier convictions and the fresh counts related to the same complainant, telling jurors they must assume the earlier counts were correct impermissibly pre-determined a central credibility issue that overlapped both sets of allegations.
• Consequently the convictions on Counts 1–5 were unsafe and had to be set aside.

Analysis

1. Precedents Cited

1. R v Carter [2007] EWCA Crim 1307
   • Confirmed that any evidence (including the defendant’s own assertion) may rebut the s.74(3) presumption; whether it suffices is a jury matter.
2. R v C [2010] EWCA Crim 2971
   • Re-affirmed defendants’ right to challenge earlier convictions and urged robust case-management (e.g. detailed defence statements) to avoid satellite litigation.
3. R v Caine [2024] EWCA Crim 225
   • Held that, if the defendant does adduce evidence denying earlier convictions, the judge must leave the s.74(3) issue to the jury; failure is a misdirection, though may be cured if no rational jury could accept the denial on the facts.
4. R v Obi [2024] EWCA Crim 805
   • Demonstrated limits: where the defendant merely re-runs credibility attacks on the previous complainant without fresh evidence, s.74(3) attempts will likely fail.

Norman builds directly on Carter, C and Caine, but introduces an important nuance: where the earlier conviction relates to the same complainant whose testimony is critical in the present trial, a judge’s misdirection is especially corrosive because it effectively resolves the principal credibility contest in the prosecution’s favour.

2. Legal Reasoning

The Court’s reasoning proceeds in three stages.

a) Entitlement to Challenge Under s.74(3)

Section 74(3) states that a proved prior conviction “shall be taken” as proof of the offence “unless the contrary is proved”. That wording:

• Creates an evidential presumption only, not conclusive proof.
• Places a reverse burden (civil standard) on the accused to show he did not commit the prior offence.
• Leaves it to the jury—not the judge—to decide whether that burden is discharged.

b) Misdirection at Trial

The Recorder:

• Directed the jury to treat the prior convictions as established facts and consider only whether they showed a tendency.
• Explicitly prevented jurors from “doubting” the correctness of the convictions.
• Gave no guidance on the defendant’s right to rebut them, despite his live sworn denial and cross-examination of the complainant on those same acts.

This, the Court said, withdrew the statutory issue from the jury and prejudged V’s credibility in relation to Counts 13–14—credibility that also underpinned Counts 1–5. That automatic spill-over rendered the verdicts unsafe.

c) Safety Analysis

Applying the “no rational jury” test from Caine, the Court distinguished Norman on facts:

• Both parties gave fresh evidence on the same events, so jurors could have rationally believed the appellant’s denial.
• The earlier convictions were themselves by 10-2 majority while the more serious rape counts had been acquitted—a fragile foundation making judicial neutrality vital.

3. Impact of the Decision

• Jury Directions: Judges must now expressly canvass the s.74(3) question whenever the defence contests prior convictions, even if those convictions involve the same complainant.
• Case-Management: Prosecutors and defence alike should flag any s.74(3) challenge early. Trial judges ought to:
  • Seek updated defence statements setting out the positive case.
  • Consider staging of rebuttal evidence in line with C §§14–15.
• Propensity Evidence: Where prior convictions concern the same victim, the line between propensity and credibility blurs. Courts must guard against directions that inadvertently bolster the complainant’s credibility by implying a previous jury’s endorsement.
• Appeals: Norman supplies a blueprint for contesting convictions where trial judges treated earlier verdicts as conclusive. The decision underscores that the Carter/C/Caine principles remain potent and now explicitly cover same-complainant scenarios.

Complex Concepts Simplified

• s.74(3) PACE: Think of it as a “guilty-until-you-prove-otherwise” presumption regarding earlier convictions. The law assumes the conviction is correct, but you can persuade the jury it was wrong.
• Reverse Burden: Normally the prosecution must prove guilt. Here, for the previous offence, the defendant must prove innocence—but only to the lower civil standard (more likely than not).
• Misdirection: Incorrect or incomplete guidance from the judge to the jury about the law. If significant, it can render convictions “unsafe”.
• Propensity/Bad Character Evidence: Information about an accused’s past misconduct introduced to show they are more likely to offend again.
• Satellite Litigation: Lengthy side-issues (such as re-trying a past case) that distract from the main trial. Courts seek to manage but not prohibit necessary challenges.

Conclusion

Norman v Rex strengthens and clarifies defendants’ rights under s.74(3) PACE, particularly where prior convictions relate to the same alleged victim. The Court of Appeal confirmed that:

1. Jurors—not judges—determine whether a defendant has rebutted the presumption that an earlier conviction is correct.
2. A defendant’s own testimony, even if “bare assertion”, may suffice to raise the issue; credibility assessments belong to the jury.
3. When prior convictions share the complainant, telling jurors they “must” accept those convictions short-circuits the very credibility enquiry they must undertake, and risks unsafe verdicts.

The judgment therefore demands meticulous judicial directions and early case-management whenever prior convictions are in play. Its practical legacy will be heightened vigilance against inadvertently endorsing earlier jury verdicts, thereby preserving the fundamental role of the current jury as sole arbiters of fact.