Brown, R. v

Factual and Procedural Background

The applicant was convicted on 28 April 2023 at the Crown Court in The City of two counts of indecent assault on a male person and two counts of indecency with a child, offences alleged to have occurred between 1979 and 1984 when the victim ("P") was aged 12 to 16. The applicant was P's swimming instructor and family friend. The Crown alleged sexual abuse including acts of masturbation and indecent photography involving P at various locations including swimming pool changing cubicles, P's home, the applicant's home, and a holiday cottage. Photographs alleged to depict P were found on the applicant’s laptop.

P had a significant criminal record between 1985 and 2004 and suffered from diagnosed mental health conditions. P disclosed the abuse to his sister ("Q") around 2010 and later to the NSPCC and police in 2016 and 2017. Q provided a witness statement supporting P’s allegations. The applicant was arrested in 2017, and evidence including photographs was seized from his laptop. The applicant denied the allegations and contested the identity of persons in the photographs.

The applicant's trial commenced in April 2023 but was interrupted due to his ill health. The Crown relied on hearsay evidence from P and Q, the applicant's bad character evidence from previous sexual offence convictions, and circumstantial evidence linking the applicant to the offences. The jury convicted the applicant on counts 1 to 4, and counts 5 to 7 were dismissed by the Crown. The applicant was sentenced in August 2023. He applied for an extension of time to appeal against his conviction, which was referred to the full court.

Legal Issues Presented

1. Whether the recorder erred in admitting hearsay evidence from deceased witnesses P and Q under the Criminal Justice Act 2003.
2. Whether the recorder erred in admitting the applicant's previous convictions as bad character evidence.
3. Whether the recorder was correct in finding there was a case to answer and refusing to stop the trial pursuant to section 125 of the 2003 Act.
4. Whether the recorder was correct in declining to discharge the jury after the Crown abandoned counts 5 to 7.
5. Whether the trial was fairly conducted in the applicant's absence due to illness.
6. Whether the delay in applying for leave to appeal was justifiable and whether leave to appeal should be granted despite the delay.

Arguments of the Parties

Appellant's Arguments

• The recorder failed to properly follow the procedure for admitting hearsay evidence as set out in precedent, particularly the decision in Riat.
• Insufficient weight was given to P's previous convictions, the significant delay between alleged offences and disclosure, and the late emergence of allegations.
• The photographs found on the applicant's computer were improperly relied upon to support P's evidence.
• The recorder erred in admitting Q’s hearsay evidence without separate consideration and improperly used it as a counterbalance to P’s evidence.
• The prejudicial effect of admitting the applicant's previous convictions outweighed their probative value, especially given the central reliance on hearsay evidence.
• The Crown’s abandonment of counts 5 to 7 undermined the fairness of continuing the trial on counts 1 to 4 and warranted discharging the jury.
• It was unfair to proceed with the trial in the applicant’s absence, particularly as the Crown suggested the applicant’s illness was suspicious and the applicant might have changed his mind about giving evidence if present.
• The delay in applying for leave to appeal was not justified by ill health, and no medical evidence supported the claimed inability to face matters.

Crown's Arguments

• The recorder correctly applied the statutory framework and case law in admitting P’s and Q’s hearsay evidence, properly assessing its potential reliability and how it could be tested by the jury.
• The hearsay evidence was supported by circumstantial evidence including the applicant’s known relationship with P, photographs, and previous convictions.
• Q’s evidence was not admitted merely to counterbalance P’s evidence but was independently admissible as potentially reliable evidence of an earlier complaint.
• The applicant’s previous convictions were properly admitted to show propensity and to rebut any suggestion of coincidence in P’s allegations.
• The recorder was entitled to conclude there was a case to answer and to refuse to stop the trial, as well as to decline to discharge the jury after the Crown abandoned counts 5 to 7, with appropriate jury directions mitigating prejudice.
• Proceeding with the trial in the applicant’s absence was appropriate given the stage of the trial, the applicant’s indication he would not give evidence, and the directions given to the jury to disregard his absence.
• The delay in appealing was unjustified but the merits of the appeal were considered; however, the appeal was refused due to lack of good reason for delay and absence of arguable grounds.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Horncastle [2010] 2 AC 373	Framework for admissibility of hearsay evidence and assessment of reliability.	Referred to in assessing the potential reliability of hearsay evidence from deceased witnesses.
R v Ibrahim [2012] 2 Cr App R 420	Considerations on hearsay evidence and procedural safeguards.	Used to support the approach to admitting hearsay evidence and ensuring fair trial.
Riat [2013] 1 WLR 2592	Stepwise statutory framework for hearsay evidence admissibility under the Criminal Justice Act 2003.	Confirmed the proper procedure for admitting hearsay evidence and the focus on potential reliability.
R v Jones [2003] 1 AC 1	Principles governing continuation of trial in defendant’s absence.	Applied in deciding that the trial could continue despite the applicant’s absence due to illness.

Court's Reasoning and Analysis

The court began by considering the statutory framework under the Criminal Justice Act 2003 for admitting hearsay evidence from deceased witnesses P and Q. It confirmed that the conditions for admissibility were met, particularly under section 116, as both witnesses were deceased. The court emphasized the recorder’s role in assessing whether the hearsay evidence was potentially safely reliable, focusing on the strengths and weaknesses of the evidence, the tools available to the jury to test it, and its importance to the case.

The court found the recorder correctly considered the recorded police interviews of P, which allowed the jury to assess demeanour, and acknowledged the delay in disclosure and P’s mental health and convictions as relevant to assessing reliability. The evidence supporting P’s account, such as the applicant’s role as swimming instructor, photographs, and model ships, was appropriately weighed. The court did not find the admission of P’s hearsay evidence unsafe.

Regarding Q’s hearsay evidence, the court held that although the recorder could have elaborated more, the admission was justified as it was potentially safely reliable and admissible as a previous inconsistent statement. The court rejected the appellant’s contention that Q’s evidence was admitted merely to counterbalance P’s evidence.

The court upheld the admission of the applicant’s previous convictions as bad character evidence under sections 101 and 103 of the 2003 Act, finding them sufficiently similar to the alleged offences to establish propensity or rebut coincidence. The court agreed with the recorder’s conclusion that admitting these convictions did not render the trial unfair.

The court addressed the submissions about stopping the trial or discharging the jury. It accepted the recorder’s finding that the hearsay evidence was not so unconvincing as to require stopping the case, and that the jury could properly convict on counts 1 to 4. The abandonment of counts 5 to 7 by the Crown was managed by appropriate jury directions, mitigating potential prejudice.

On the trial continuing in the applicant’s absence due to illness, the court found the recorder’s decision was within her discretion, considering the stage of the trial, the applicant’s indication he would not give evidence, and the jury directions to disregard his absence. The court was not persuaded that the applicant suffered prejudice from this decision.

Finally, the court considered the delay in applying for leave to appeal. It found no good reason for the delay, particularly in the absence of medical evidence supporting the applicant's claimed inability to face matters. Having considered the merits, the court concluded the appeal was unarguable and refused the application for an extension of time and leave to appeal.

Holding and Implications

The court REFUSED the application for an extension of time and REFUSED leave to appeal against conviction.

The direct effect is that the applicant’s convictions on counts 1 to 4 stand and the appeal will not proceed. No new precedent was established by this decision. The court confirmed the proper application of statutory provisions relating to hearsay evidence, bad character evidence, trial procedure, and continuation of trial in absence, reinforcing established legal principles.