Babu, R. v

Factual and Procedural Background

This is an appeal decision of the Court of Appeal (panel: Judge May, Judge Choudhury and Judge Tayton), with a written judgment delivered by Judge Choudhury. The Applicant was tried at the Crown Court before Judge Newton-Price. On 31 January 2024 the Applicant, then aged 47, was convicted of four counts of sexual assault (counts 1, 2, 4 and 7) and acquitted of three other counts. On 12 April 2024 the Applicant was sentenced to an aggregate term of three years and six months' imprisonment.

The Applicant seeks renewal of an application for leave to appeal against conviction (previously refused by a single judge) and seeks leave to admit fresh evidence concerning a diagnosis of autism from Expert A and a report from Expert B (the Applicant's wife).

Between April 2018 and July 2021 the Applicant worked as a locum at Company A in The City. Three complainants (referred to in the trial as C1, C2 and C3), each of whom was a patient of the Applicant and who did not know one another, alleged that the Applicant sexually assaulted them during medical appointments.

Brief factual allegations (as presented at trial): C1 reported inappropriate breast examination conduct (counts 1 and 2) and later died before trial; C2 described intrusive touching, compliments and a kiss on the cheek (count 4); C3 described repeated requests to remove a bra, touching and squeezing of breasts causing pain (count 7). The Applicant denied all allegations in police interviews and at trial.

The prosecution relied on, among other things, hearsay evidence of what C1 had told healthcare staff and a relative, a safeguarding note recording C1's account, evidence from five other females about inappropriate conduct (bad character/reprehensible conduct), documentary complaints, expert medical evidence (Expert C), alleged lies in police interviews, evidence from the Practice Manager about complaints procedures, and the evidence of another witness who advised the Applicant on examinations and chaperones. The defence was denial; the Applicant gave evidence and called witnesses of character.

Legal Issues Presented

1. Whether the hearsay evidence of C1 (statements to healthcare staff and a relative and the safeguarding note) was admissible under sections 116/117 (and/or section 114) of the Criminal Justice Act 2003 and whether its admission rendered the trial unfair.
2. Whether it was appropriate for the jury to retire with and retain the typed safeguarding note relating to C1.
3. Whether evidence of other patients' allegations (bad character/reprehensible conduct) was admissible under the 2003 Act and whether it should have been excluded under section 101 or section 78 of PACE as unfairly prejudicial.
4. Whether the bad character evidence should have been excluded or treated differently in light of fresh evidence of the Applicant's autism (Expert A/Expert B).
5. Whether admission of bad character evidence without contextual evidence of the Applicant's neurodivergence (autism) was unfair.
6. Whether the jury should have been informed of the Applicant's autism and its possible impact on communication when assessing his evidence and police interviews.

Arguments of the Parties

Applicant's Arguments

• The Applicant argued that he was disadvantaged because C1 was deceased and her statements could not be tested by cross-examination; the typed safeguarding note was an unreliable record.
• The Applicant sought to adduce fresh evidence diagnosing autism (Expert A and Expert B) and argued that the Applicant's neurodivergence would have affected admission and assessment of bad character evidence and the jury's assessment of his interviews and evidence.
• The defence contended that any touching alleged was medically required or accidental, that questions were clinically appropriate and that hugs were comforting responses to distressed patients.

Prosecution's Arguments

• The prosecution submitted C1's statements to healthcare staff and the safeguarding record were admissible under s.116(2)(a) and s.117 (or in the interests of justice under s.114) and were sufficiently reliable for the jury to assess, applying the safeguards identified in R v Riat.
• The prosecution sought admission of evidence from five other women about inappropriate, overfamiliar or unprofessional conduct to rebut the Applicant's denials, to show a consistent pattern of sexualised behaviour towards patients and to rebut concoction.
• The prosecution submitted the probative value of the hearsay and bad-character evidence outweighed any prejudicial effect and any prejudice would be addressed by judicial directions and cross-examination.

Table of Precedents Cited

Court's Reasoning and Analysis

The court summarised the trial judge's rulings and the single judge's reasons and agreed with them. Key points of analysis were:

• Hearsay (C1): The judge found the witnesses who reported C1's account and the safeguarding note to be apparently or potentially reliable (no evident motive to fabricate; no history of false claims or delusional thinking). The judge admitted the evidence under s.116(2)(a) and, as to the safeguarding record, under s.117 or in the interests of justice under s.114. The judge concluded the probative value outweighed prejudice and that appropriate directions would mitigate any unfairness.
• Retention of the safeguarding note: The judge considered Popescu and determined the note was different in kind from an ABE transcript; retaining the note would assist the jury in testing reliability against other documentary sources. The judge directed the jury not to attach undue weight to the document.
• Bad character evidence (five other women): The judge admitted evidence of prior inappropriate conduct as relevant to rebut the Applicant's denials, to show a pattern making concoction unlikely, and to contradict explanations of innocent mistake. The judge found the material was capable of providing potential support for the complainants' allegations and that the defence could fairly test that material by cross-examination; exclusion under s.101 or s.78 was refused.
• Fresh evidence of autism: The single judge concluded the Applicant and his family were alive to the issue and could have investigated it pre-trial. The central question was whether the diagnosis would have made the convictions unsafe. The single judge found no evidential basis that neurodivergence explained the complained-of conduct as unintended or misunderstood; the Applicant had not shown communication difficulties at trial or in preparation; and, even allowing for autism, the Applicant was an educated man who had been warned about his conduct and so would have understood its implications.
• Court of Appeal conclusion: The Court of Appeal agreed with the single judge's reasoning and refused the renewed application for leave to appeal and the application to adduce fresh evidence.

Holding and Implications

LEAVE TO RENEW THE APPEAL AND THE APPLICATION TO ADMIT FRESH EVIDENCE WERE REFUSED.

Direct effect: The renewed application for permission to appeal against conviction was refused and the application to admit fresh evidence concerning autism was refused. The court accepted the trial judge's evidential rulings (admission of C1 hearsay and the safeguarding note; admission of bad character evidence) and concluded those rulings and the conduct of the trial did not render the convictions unsafe.

No broader precedent was established beyond the application of the cited authorities and the affirmation of the single judge's reasoning in the particular circumstances of this case.