REGINA v Berry

Factual and Procedural Background

The Appellant was convicted at the Crown Court at The City before Her Honour Judge Williams in February 2009 on multiple counts of indecent assault or other sexual offences committed between 1996 and 2002. The offences involved a child referred to as EG and three sisters, R, K, and L. The Appellant was sentenced to 13 years imprisonment, reduced to 10 years after an appeal in 2010 which quashed the convictions relating to EG on the basis of an alleged error by the trial judge in excluding cross-examination of EG. The Appellant did not challenge the other counts at that time, and the Crown did not seek a retrial on the quashed counts. Subsequently, the Criminal Cases Review Commission (CCRC) referred the case back to the court on two issues arising from its own investigation: (a) the correctness of the trial judge's direction to the jury concerning evidence admitted under section 120 of the Criminal Justice Act 2003 (CJA 2003), and (b) whether quashing the convictions relating to EG rendered the remaining convictions unsafe. The court heard the appeal in May 2013, directed further enquiries, and considered the advice of counsel before addressing these issues.

Legal Issues Presented

1. Whether the trial judge erred in her direction to the jury regarding the admissibility and approach to hearsay evidence under section 120 of the Criminal Justice Act 2003, specifically in relation to complaints evidence given by the mother of the three sisters.
2. Whether the quashing of the convictions on counts relating to EG rendered the remaining convictions unsafe, given the interrelationship and cross-admissibility of the evidence from EG and the three sisters.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the trial judge's direction to the jury on the hearsay evidence under section 120 of the CJA 2003 was legally incorrect, as it failed to instruct the jury that such evidence, while admissible, must be weighed with the understanding that it came from the same source as the witness and not an independent source, as established in R v AA [2007] EWCA Crim 1779.
• The Appellant argued that the quashing of the convictions relating to EG undermined the safety of the remaining convictions because the evidence of EG and the three sisters was interrelated and cross-admissible; the jury had accepted EG’s evidence, which may have influenced their verdicts on the other counts.

Crown's Arguments

• The Crown submitted that the evidence of EG did not support the evidence of the three sisters in key respects, including differences in the description of sexual acts and the nature of the abuse.
• The Crown maintained that the prosecution case at trial was that the evidence of EG and the three sisters was mutually supportive but did not rely on EG’s evidence to prove the other counts.
• The Crown indicated it would seek a retrial on the counts relating to R if the convictions were quashed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v AA [2007] EWCA Crim 1779	Clarification of the legal requirements for admissibility and jury directions concerning hearsay evidence under s.120 CJA 2003, especially complaints evidence in sexual offence cases.	The court considered whether the trial judge’s directions complied with the principles in R v AA, concluding that although the judge did not give the specific direction required by R v AA, it was not necessary in the circumstances of this case because the jury would have been plainly aware that the complaints evidence was not from an independent source.
R v Islam [1999] 1 Cr App R 22	Foundational exposition of the common law principles relating to recent complaint evidence in sexual offences.	Referenced in R v AA to illustrate the development of the law and to contextualize the statutory changes under s.120 CJA 2003.
R v Ashraf A [2011] EWCA Crim 1517	Confirmed the legal requirements for jury directions on hearsay evidence under s.120 CJA 2003.	Referenced to show that failure to give the full R v AA direction does not necessarily render convictions unsafe.
R v D [2011] EWCA Crim 1493	Similar confirmation of the legal approach to hearsay evidence and jury directions.	Supported the principle that omission of the full direction under R v AA may not invalidate convictions.
R v H [2012] 1 Cr App R 30	Further elucidation on the application of s.120 CJA 2003 and jury directions.	Reiterated that the absence of a full R v AA direction does not automatically render convictions unsafe, depending on the context of the case.

Court's Reasoning and Analysis

The court first addressed the issue of the trial judge’s direction under section 120 of the CJA 2003. It acknowledged the statutory framework and the precedent set in R v AA requiring a jury direction that, while hearsay complaints evidence may be accepted as truthful if conditions are met, the jury must be aware that such evidence comes from the same person who later testifies and is not independent. However, the court found that in this case, the judge’s failure to give the precise R v AA direction did not render the conviction unsafe because the jury would have obviously understood that the complaints evidence given by the mother and family friend was not independent of the sisters themselves. The court reasoned that giving the full direction would have overcomplicated the trial given the obvious source of the evidence.

On the second issue, the court focused on whether quashing the convictions related to EG undermined the safety of the remaining convictions involving the three sisters. It noted that the prosecution case at trial was presented on the basis that the evidence from EG and the sisters was mutually supportive and cross-admissible. The judge’s directions to the jury explicitly allowed them to consider the evidence of one complainant as supporting the others, provided the complaints were independent and not influenced by each other. The jury found the counts relating to EG proven, indicating acceptance of EG’s evidence, which the court inferred likely influenced the verdicts on the other counts. Given this interrelationship and the absence of any challenge to the remaining counts at the 2010 appeal, the court concluded that the remaining convictions were unsafe and must be quashed.

The court further noted that the prosecution intended to seek a retrial on the counts involving one of the sisters, R, and emphasized the interests of justice in ordering such a retrial despite the Appellant’s advanced age and potential short sentence exposure.

Finally, the court commended the thorough work of the CCRC but observed that it would have been preferable for the CCRC to have sought explanations from trial counsel before making its reference to the court, to avoid the need for the court to investigate the procedural history in detail.

Holding and Implications

The court QUASHED the remaining convictions relating to the three sisters, finding them unsafe as a consequence of the quashing of the convictions relating to EG and the interrelated nature of the evidence. It ordered a retrial on the counts involving one of the sisters, R, in the interests of justice.

The direct effect of this decision is to vacate the convictions on those counts and provide for a new trial. No new precedent was established beyond the application of existing principles on hearsay evidence and the safety of convictions where evidence is interdependent. The court also highlighted procedural lessons for the CCRC regarding consultation with trial counsel before making references.