GJB v R

Factual and Procedural Background

On 31 October 2007, in the Crown Court at The City before His Honour Judge Woodward, the Appellant was convicted on one count of buggery contrary to section 12(1) of the Sexual Offences Act 1956, and on four counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. The Appellant was sentenced to a total of 8 years' imprisonment. The Appellant applied for an extension of time and leave to appeal against the convictions. The Full Court granted the extension and leave, heard submissions, allowed the appeal, and quashed all convictions. Reasons for this decision are provided in this opinion.

The allegations concerned sexual abuse between 1989 and 1991 by the Appellant upon his two younger nephews, the sons of his sister. One complainant alleged buggery occurred at a joint birthday party at their grandparents' home on 17 February 1989, when he was five years old and the Appellant was 17. The other complainant alleged that the Appellant, who lived with them for some time between 1989 and 1990, encouraged him to masturbate the Appellant on several occasions between 1989 and 1991.

The Appellant denied the allegations during police interview. The prosecution case relied on the truthfulness of the complainants' accounts, while the defence case asserted the allegations were fabricated due to family ill-feeling arising from a custody-related dispute. At trial, the complainants, their mother, and the Appellant (a man of good character) gave evidence.

Legal Issues Presented

1. Whether the trial judge's summing up improperly suggested the complainant's memory was "scarred" by the abuse, thus improperly influencing the jury.
2. Whether the Lucas direction given to the jury regarding alleged lies by the Appellant was defective.
3. Whether the summing up improperly treated as a fact the existence of a "missing year" in the Appellant's account, damaging his credibility.
4. Whether the good character direction was inadequate, particularly lacking a "third limb" adapted to the delay in prosecution.
5. Whether the judge's direction on the delay before the complainant's complaint was fair and balanced, particularly regarding the defence case.
6. Whether the judge's treatment of evidence concerning changes in the complainant's behaviour ("the can of worms") was prejudicial.
7. Whether earlier complaints made by the complainants were properly admitted and whether a direction on their evidential weight was required.

Arguments of the Parties

Appellant's Arguments

• The prosecution improperly asserted that the complainant's detailed memory of the bedroom was evidence of abuse, amounting to unsupported "amateur psychology".
• The Lucas direction was inappropriate because it assumed the Appellant had lied without first establishing the falsity of his statements.
• The summing up wrongly stated there was a missing year in the Appellant's account, damaging his credibility without factual basis.
• The good character direction should have included a "third limb" addressing the effect of delay in historic sexual abuse cases.
• The direction on delay in complaint did not adequately present the defence case or make clear that abuse was not assumed.
• The judge's reference to changes in the complainant's behaviour was prejudicial and should have been cautioned.
• The earlier admissions by the complainants should not have been accepted or should have been accompanied by a direction limiting their corroborative value.

Respondent's Arguments

• The prosecution's assertion regarding the complainant's memory was proper and the jury could consider the accuracy of recollections.
• The Lucas direction was appropriate and did not require modification.
• The good character direction given was sufficient, and the jury was aware of the Appellant's good character.
• The earlier admissions were properly admitted, and requiring the complainants' spouses to testify would have been more damaging.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D (JA) [2008] EWCA Crim 2557	Proper approach to delay in complaint in sexual abuse cases, including balanced directions.	Used to illustrate the need for directions that do not assume guilt and fairly present defence arguments on delay.
Miller [2010] EWCA Crim 1578	Model direction on delay in complaint, emphasizing balanced presentation of prosecution and defence cases.	Identified as a model direction that should have been followed to avoid assuming guilt.
Small [2008] EWCA Crim 2788	Good character directions, including the need for a "third limb" addressing delay in historic sexual offence cases.	Referenced to demonstrate inadequacy of the trial judge's good character direction and the importance of delay-related directions.

Court's Reasoning and Analysis

The Court carefully analyzed the summing up and directions given by the trial judge, identifying several errors that cumulatively rendered the conviction unsafe. The Court found that the prosecution's suggestion that the complainant's detailed memory was evidence of abuse was unsupported by expert evidence and amounted to amateur psychology, which should have been cautioned against or avoided.

The Lucas direction was flawed in that it assumed the Appellant's statement was false before the jury had to decide that fact, reversing the burden improperly. The Court emphasized the necessity for the jury first to be satisfied that a statement was incorrect before considering whether it was a deliberate lie.

The summing up wrongly presented the existence of a "missing year" in the Appellant's account as a fact, damaging his credibility without evidential basis, as objective evidence showed no such gap.

The good character direction was not sufficiently adapted to the facts, lacking the "third limb" that considers the effect of long delay in historic sexual abuse cases, which is particularly relevant given the prejudice delay can cause the defence.

Regarding the delay before the complainant's complaint, the Court accepted that the judge was entitled to comment on the difficulties victims face in disclosing abuse. However, the summing up failed to present the defence case adequately and wrongly assumed the abuse had occurred, rather than making such comments conditional.

The judge's treatment of evidence about changes in the complainant's behaviour was found to be prejudicial. The judge's rhetorical question and description of this evidence as "the can of worms" invited the jury to infer guilt improperly, rather than cautioning them about the limited evidential value.

The Court rejected the Appellant's submission that earlier admissions by the complainants were wrongly accepted or required a direction excluding corroboration, noting the tactical reasons for their acceptance and that the judge could comment on their impact on credibility.

Considering these matters cumulatively, the Court concluded the summing up was unfair and the conviction unsafe.

Holding and Implications

The Court ALLOWED THE APPEAL AND QUASHED THE CONVICTIONS on all counts against the Appellant.

The direct effect of this decision is that the Appellant's convictions for historic sexual offences are set aside. The Court did not establish any new legal precedent but reinforced the importance of careful, balanced summing up in historic sexual abuse trials, particularly regarding memory evidence, good character directions, and delay in complaint. The decision highlights that cumulative errors in summing up can render a conviction unsafe, underscoring the need for trial judges to avoid assumptions of guilt and unsupported psychological assertions.