Norman v Rex

Factual and Procedural Background

The Appellant was convicted following a retrial on five counts of indecency with a child, relating to allegations from the mid-1970s to mid-1980s involving a single victim ("V"). The original indictment contained 14 counts, including rape, indecency with a child, and indecent assault. At the first trial, the Appellant was acquitted of several counts including six counts of rape and one count of indecency with a child, convicted by majority on two counts of indecent assault (counts 13 and 14), and the jury was unable to reach verdicts on five counts of indecency with a child (counts 7-11). The retrial focused on these unresolved counts, renumbered as counts 1-5. The Appellant appealed against his retrial convictions, alleging error in the judge’s directions to the jury regarding the treatment of his previous convictions from the original trial (counts 13 and 14).

Legal Issues Presented

1. Whether the Recorder erred in his directions to the jury on how to consider the Appellant's previous convictions (counts 13 and 14) when deliberating the retrial counts (1-5).
2. The proper application and scope of section 74(3) of the Police and Criminal Evidence Act 1984 concerning the evidential effect of previous convictions.
3. Whether the misdirection regarding the previous convictions rendered the Appellant's retrial convictions unsafe.

Arguments of the Parties

Appellant's Arguments

• The Recorder wrongly instructed the jury that they had no function in doubting the previous convictions, effectively preventing them from considering the Appellant’s challenge to those convictions.
• The Appellant denied the offences of counts 13 and 14, asserting that the earlier jury’s verdict was mistaken.
• The defence contended that the Appellant’s good character and evidence supported the possibility of a miscarriage of justice in the original convictions.
• The Appellant argued that section 74(3) permits him to challenge the correctness of prior convictions and that the jury should have been directed accordingly.

Prosecution's Arguments

• The prosecution submitted that the jury should be directed that they must accept the previous convictions as conclusive and not disregard them on the basis that the first jury might have erred.
• They argued that the jury had no business doubting the prior convictions and that Defence Counsel’s suggestion to the contrary went too far.
• The prosecution relied on the evidence of V and other witnesses to support the retrial counts and the fact of the previous convictions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Carter [2007] EWCA Crim 1307	Section 74(3) PACE: The evidential presumption of guilt arising from a previous conviction can be rebutted by the defendant’s evidence alone; it is a matter for the jury to decide.	The court emphasized that the judge’s misdirection requiring evidence beyond the defendant’s bare assertion to rebut the presumption was incorrect. The decision to accept or reject the defendant’s challenge to the conviction is a factual matter for the jury.
R v C [2010] EWCA Crim 2971	Clarified the scope of section 74(3) PACE: The defendant may challenge the correctness of a previous conviction and adduce evidence to rebut it; the prosecution may respond with evidence to support the conviction.	The court stressed the need for proper case management to balance fairness, preventing satellite litigation while allowing the defendant to challenge the conviction. It also stated that a bare denial is insufficient; the defendant should identify the ingredients of the case to rebut the conviction.
R v Caine [2024] EWCA Crim 225	Reaffirmed principles from Carter and C regarding section 74(3) and the requirement for the jury to decide if the defendant rebutted the presumption of guilt from prior convictions.	The court held that when a defendant gives evidence denying prior offences, the jury must be directed that they can only rely on the previous convictions if the defendant fails to prove his innocence on the balance of probabilities. The court also cautioned against judges directing juries to disbelieve the defendant’s evidence outright.
R v Obi [2024] EWCA Crim 805	Confirmed that without fresh evidence proving innocence, attempts to challenge prior convictions based on the same evidence amount to a re-trial and are unlikely to succeed under section 74(3).	The court upheld refusal to admit evidence that merely questioned the reliability of the complainant in the prior trial, emphasizing that the defendant’s bare denial was insufficient to rebut the presumption of guilt from a prior conviction.

Court's Reasoning and Analysis

The court analysed the application of section 74(3) of the Police and Criminal Evidence Act 1984, which creates an evidential presumption that a defendant convicted of an offence committed that offence unless the contrary is proved. The court reviewed leading authorities (R v Carter, R v C, R v Caine, and R v Obi) to clarify that while the prosecution is entitled to rely on the fact of a prior conviction, the defendant is entitled to challenge its correctness and adduce evidence to rebut the presumption. The jury must decide whether the defendant has successfully rebutted it.

In the present case, the Appellant denied the offences for which he was previously convicted (counts 13 and 14) and gave evidence to that effect at the retrial. The jury heard evidence from both the Appellant and the victim (V) about both the prior convictions and the retrial counts. Despite this, the Recorder’s directions to the jury treated the fact of the previous convictions as conclusive and instructed the jury that they had no role in doubting those convictions. This misdirection effectively prevented the jury from considering the Appellant’s challenge to the prior convictions as required by section 74(3).

The court found that this misdirection was serious and prejudicial. Unlike the cited authorities where prior convictions related to different victims, here the same victim was involved in both the prior and retrial offences, making the credibility assessment of both the Appellant and V central to the case. By directing the jury to treat the prior convictions as established and reliable, the Recorder effectively directed them to disbelieve the Appellant’s evidence and accept V’s evidence, placing the Appellant at a severe disadvantage.

The court also noted that neither counsel nor the Recorder appeared to have been aware of the correct legal principles under section 74(3), which contributed to the misdirection. The prosecution’s encouragement of the Recorder’s direction that the jury could not doubt the prior convictions was also found to be erroneous.

Given the importance of the jury’s role in assessing credibility on both sets of counts and the misdirection that removed this role, the court concluded that the Appellant’s retrial convictions were unsafe.

Holding and Implications

The appeal is ALLOWED and the Appellant's convictions on Counts 1-5 of the retrial indictment are QUASHED.

The direct effect of this decision is the quashing of the Appellant’s retrial convictions due to a serious misdirection relating to the treatment of previous convictions under section 74(3) PACE. No new legal precedent is established beyond the application and reaffirmation of existing principles concerning the evidential effect of prior convictions and the jury’s role in assessing challenges to them. The decision underscores the necessity for trial judges and counsel to be fully aware of and correctly apply section 74(3) and related case law to ensure fair trials where prior convictions are in issue.