Crown Court for Northern Ireland Decisions

(a) The person's name;

(b) The person's address;

(c) The identity of any school or other educational establishment attended by the person;

(d) The identity of any place of work, and

(e) Any still or moving picture of the person.

The Indictment

Mr Blackburn, who appears on behalf of the accused, submits that it is undesirable that a case of this complexity, involving 15 complainants, should be heard by one jury dealing with a great number of issues and a large volume of evidence. He submits that these 85 counts are alleged to have occurred over the course of nearly 25 years. Accordingly it is counsel's argument that it is desirable that this case be broken into three smaller cases involving smaller groups of complainants. Mr Russell, who appears on behalf of the prosecution, adopted a neutral stance but drew attention to the practical reality that in the event of severance and the trial process being divided into two or three separate trials, inevitably the prosecution would seek to adduce the evidence of all the complainants (and each witness as to bad character) in each of the trials under the provisions of Article 6 of the Criminal Justice (Evidence) (NI) Order 2004. This would inevitably lead to the stress and strain of a number of witnesses having to give evidence on sensitive issues on perhaps three occasions. Moreover the length of the trials might not be materially shortened by virtue of the need to have repetitive evidence in each of the separate trials.

I consider that the following principles should govern this application for severance:

"It is inevitable, if a series of unconnected charges are allowed to go to trial at the same time, that evidence will be led in regard to one charge which is inadmissible in regard to another. A material risk of real prejudice to the accused is not thought however to arise merely because the charges relate to different kinds of crime committed at different times in different places and under different circumstances. Experience has shown that under proper directions juries are well able to consider each charge in an indictment separately. Their verdicts demonstrate time and time again that they have done so. In practice motions for separation of charges are granted only in very clear cases, where fairness to the accused makes this necessary."

"We cannot conclude this judgment without pointing out that, in our opinion, most of the difficulties which have bedevilled this trial, and which have led in the end to the quashing of all convictions except on conspiracy and related counts, arose directly out of the overloading of the indictment. How much worse the difficulties would have been if the case had proceeded to trial on the original indictment containing 38 counts does not bear contemplation. But even in its reduced form the indictment of 19 counts against four defendants resulted in a trial of quite unnecessary length and complexity. … Quite apart from the question of whether the prosecution could find legal justification for joining all these counts in one indictment and resisting severance, the wider and more important question has to be asked whether in such a case the interests of justice were likely to be better served by one very long trial or by one moderately long or four short separate trials. We answer unhesitatingly that whatever advantages were expected to accrue from one long trial, … they were heavily outweighed by the disadvantages. A trial of such dimensions puts an immense burden on both judge and jury. In the course of a four or five day summing up the most careful and conscientious judge may so easily overlook some essential matter. Even if the summing up is faultless, it is by no means cynical to doubt whether the average juror can be expected to take it all in and apply all the directions given. Some criminal prosecutions involve consideration of matters so plainly inextricable and indivisible that a long and complex trial is an ineluctable necessity. But we are convinced that nothing short of a criterion of absolute necessity can justify the imposition of the burdens of a very long trial on the court."

"They (the factors to be taken into account) will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are:- how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and, importantly were there directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows, as for example in Reg v Blackstock, 79 Cr App R 34 and in the instant case, that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately.

Approaching the question of severance as indicated above, judges will often consider it right to order separate trials. But I reject the argument that either generally or in respect of any class of case, the judge must so order".

character

"Procedure for the admission of hearsay evidence

44 O. – (i) This Rule shall apply where a party wishes to adduce evidence on one or more of the grounds set out in Article 18(1)(a) to (d) of the 2004 Order and in this Rule such evidence is referred to as "hearsay evidence".

(ii) A prosecutor who wants to adduce hearsay evidence shall give notice in writing which shall be Form 7H in the Schedule.

(iii) Notice under paragraph (ii) shall be served on the Chief Clerk and every other party to the proceedings within 14 days from the date of –

(a) The committal of the defendant;

. . . …………

(8)The Court may ,if it considers that it is in the interests of justice to do so ,-

………………………………..

(c) abridge or extend the time for service of a notice required under this rule ,either before or after that period expires

"44 N (4). A prosecutor who wants to adduce evidence of a defendant's bad character or to cross examine a witness with a view to eliciting such evidence, under Article 6 of the 2004 Order, shall give notice in writing which shall be in Form 7F in the Schedule.

(5) Notice under paragraph (4) shall be served on the Chief Clerk and every other party to the proceedings within 14 days from the date –

(a) Of the committal of the defendant;

. . ………….

(10)The Court may ,if it considers that it is in the interests of justice to do so –

……………………………..

(b)abridge or extend the time for service of a notice or application required under this rule ,either before or after that period expires"

"An application for an extension will be closely scrutinised by the court. A party seeking an extension cannot expect the indulgence of the court unless it clearly sets the reasons why it is seeking that indulgence. But importantly I am entirely satisfied that there was no conceivable prejudice to the claimant, bearing in mind that he would have been well aware of the facts of his earlier convictions; secondly, that he was on notice on April 14 that there could be such an application; and thirdly, that there was no application for an adjournment on June 16 from which it is to be inferred that the claimant and his legal advisers did not consider their position to be prejudiced by the short notice."

The prosecution made a series of applications under the provisions of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 ("the 2004 Order") Article 18.

"18. – (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if –

(a) any provision of this Part or any other statutory provision makes its admissible,

(b) any rule of law preserved by Article 22 makes it admissible,

(c) all parties to the proceedings agreed to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under paragraph (1)(d), the court must have regard to the following factors (and to any others it considers relevant) -

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in para. (a);

(c) how important the matter or evidence mentioned in para. (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it".

"30. – (1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated –

(a) the statement was made other wise than in oral evidence in the proceedings, and

(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

(2) Nothing in this Part prejudices –

(a) any power of a court to exclude evidence under an Article 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (NI 12) (Exclusion of Unfair Evidence), or

(b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise)".

"They do not impose an obligation on the judge to reach a conclusion. What is required of him is the exercise of judgment, in the light of the factors identified in the sub section. What is required of him is to give consideration to those factors. There is nothing in the wording of the statute to require him to reach a specific conclusion in relation to each or any of them. He must give consideration to those identified factors and any others which he considers relevant … It is then his task to assess the significance of those factors, both in relation to each other and having regard to such weight as, in his judgment, they bear individually and in relation to each other. Having approached the matter in that way, he will be able, as it seems to us, in accordance with the words of the statute, to reach a proper conclusion as to whether or not the oral evidence should be admitted."

Whilst Rose LJ was speaking in the context of s114(2) of the Criminal

Justice Act 2003, the wording is the same as in the 2004 legislation and accordingly I intend to follow that approach. For the removal of doubt I make it clear that in each application before me I have given consideration to all of the factors although I have not reached a conclusion on all of them in each case.

"Although the purpose of the hearsay provisions … was undeniably to relax the previously strict rules against the admission of hearsay, it is important that care must be taken to analyse the precise provisions of the legislation and ensure that any rule of admissibility is correctly identified."

In the event in the instant case Mr Russell on behalf of the prosecution and Mr Blackburn on behalf of the defence submitted that it was common case that only 18(1)(d) provided a potential avenue for admissibility in all the applications before me although Mr Blackburn resisted its implementation in each instance.

This witness made a statement to police dated 18 July 2005. In it she relates she is a friend of the female complainant R in counts 9-20 being counts of indecent assault ,unlawful carnal knowledge ,assault occasioning actual bodily harm, rape and buggery . She had gone to the accused's flat on one occasion with R when both were about 15. Her statement includes the following:

"When R was still at school I noticed that she had bruising on her arms and she said that Jason King had punched her. She had also bruises on her fingers because R told us Jason has slammed her fingers in a drawer. She also had burn marks on her hands which she said were as a result of Jason burning her with a frying pan. I also recall an incident when R had left Jason, she came into my house to get away from him. Jason came to the door and R was so frightened that she hid in our kitchen until my mother told him to go away."

This witness made a statement dated 10 May 2006. It is relevant to the complainant J in relation to whom the accused faces 7 counts, 5 of indecent assault and 2 of unlawful carnal knowledge. In it he relates how when he was living with J when she was 17, she had told him that she had sex with the accused when she was young because of what he had said to her and that she needed a place to stay when she was 12 or 13. Allegedly the accused had told her that if she stayed with him she had to do something for him so she had sex with him at his flat. The witness also indicates that the accused had told him that he had taken J's "cherry" and "that he had had her when she was young". Counsel did not seek to invoke article 22(5) of the Order but relied on article 18(1)(d) in relation to what the accused had allegedly said to him. Mr Russell did not seek to relay on article 24 or the case of O in relation to J's complaint. Once again I have viewed this statement in light of the factors identified in article 18(1)(d) of the 2004 Order. I have found Xhabri's case of assistance in this application. I consider that evidence has probative value to the issues surrounding the allegations of J. J can give evidence herself on the matter. It is important evidence in the context as a whole given the denial by the accused in interviews with the police in that he ever had sexual relations with J when she was under age. The circumstances in which the statement was made do not arouse my concern. The reliability of the maker of that statement remains to be tested but he appears reliable on the face of the statement. The accused will be able to cross examine him on the matter and I do not think it likely that any difficulty or prejudice per se will be thereby engendered. I consider that the jury would wish to know whether or not J had confided in someone else about her sexual relationship with the accused particularly since he was someone with whom she had been living. I therefore conclude that the oral evidence should be admitted. In this as in all other cases, I bear in mind that there is a considerable body of evidence against the accused quite apart from this evidence.

This witness has made a statement dated 24^th March 2006 to police in which he, being the husband of one of the complainants(N), reveals conversations with the complainant in which she gave details of her sexual relationship with the accused. The accused has denied having any sexual relationship with N. Once again prosecution counsel did not seek to rely on article 24 as interpreted in the case of O. He applied under article 18(1)(d). I have again found the principles in Xhabri's case of assistance in this application. I have considered all the factors in Article 18(2). I consider that this evidence is probative assuming it is true in relation to the charges that the accused now faces. This evidence matches other evidence in the case and is important in the context of the case as a whole. The statement was made by this young woman to her husband in circumstances that do not arouse my suspicion. The reliability of the maker remains to be tested but I have no evidence at the moment to doubt his reliability or of the making of the statement. I do not contemplate the accused having any material difficulty challenging that evidence in cross examination or that he will be prejudiced in so doing. Oral evidence will be given by both the witness and I therefore admit this evidence in the exercise of my discretion.

This witness is the mother of the complainant K who is the subject of two counts of indecent assault against the accused. She made a statement to police in April 2006 which included the following:-

"I can recall an incident around 21 years ago when K was around 4 years old and Jason King was in Northern Ireland visiting his mother. On that day I had to do some shopping so I left (another person ) J in the house waiting for K to come home from school. When I came home I noted that K was changed out of her uniform and I asked her if she had taken her uniform off and she said that Jason had taken her upstairs and changed her. I was very cross about this and I told Jason King that I was angry. I asked him to leave my house and never come back. I told my sister M about this and my partner BG wrote a letter to Jason's grandmother, gave Jason the letter and put him on a train to the Republic of Ireland. The letter contained details of why Jason had to leave our area. After than I didn't have much contact with Jason and I didn't want any contact with him."

The hearsay content in this statement is of probative value in relation to the allegations made by K and is relevant to other evidence about the offence. It is important in relation to the evidence as a whole. The maker of the statement, which was made to the police, appears reliable. Oral evidence will be given by both K and A2 I was conscious there was a long gap between the commission of the alleged offence and this statement to the police but this is a matter that can be explored by counsel on behalf of the accused. I see no material difficulty in the evidence being challenged or prejudice thereby accruing to the accused. I therefore admit the evidence.

This witness was a friend of the complainant C. She is the person named in 11 counts against the accused namely 1 of gross indecency, 3 of indecent assault, 4 of unlawful carnal knowledge, 2 of buggery, 1 of making indecent photographs. In this statement made on 20 April 2006 to police, the witness recalls seeing the accused in the company of the complainant C. I do not regard this statement as having very much probative value and I do not believe that it is important in the context of the case as a whole. Whilst I have considered all the other factors, the conclusion I have reached on 18(2)(a) and (b) outweigh all the others and I therefore see no basis for admitting this evidence.

This witness in a statement to police in 2006 relates conversations with K2 when she and K2 a complainant were about 14. In this matter K2 is the alleged victim in counts 21-38. These counts include allegations of indecent assault, rape, buggery and of taking indecent photographs. RB's statement refers to conversations in which K2 asserts she was having under age sexual relations with the accused. The accused, in interviews with the police, denies meeting this girl until she was 16 years old. The prosecution did not seek to introduce these statements as complaints under article 18(1)(d). I have found the principles in Xhabri's case of assistance in this matter. I regard this evidence to be of probative value in relation to the charges given the age of the alleged victim and her circumstances and is relevant to the other evidence given. It is important evidence in relation to the evidence as a whole. The statement was made in circumstances where K2 was allegedly confiding in a friend as to her predicament. The reliability of the statement maker remains to be tested but I see no material difficulty or prejudice to the accused in challenging her account. Oral evidence can be given by both K2 and RM. In my view this statement is admissible .

This witness statement made on 26 April 2006 to the police. She is a friend of complainant N2. She describes seeing the accused in the company of 13 and 14 year old girls in his car. In particular she adverts to N2, the alleged victim in counts 58-61(counts of indecent assault and rape)

relating that she had slept with the accused at a time when she was about 15. I consider that this is of probative value in relation to the issue in this case and relates to other evidence in the matter. It is potentially important evidence in the context of the case as a whole. I see no basis currently for regarding the statement maker as other than reliable and the circumstances of the making of the statement do not arouse suspicion. Oral evidence is to be given by both VE and N2. Whilst the reliability of VE remains to be tested, I do not see any difficulty or prejudice to the accused in cross examining this witness and challenging the evidence. The accused denies that he ever had any sexual relationship with this complainant. He has asserts that there is a conspiracy against him I consider this statement/evidence to be relevant to that. I therefore admit this evidence.

This is a statement made to the police in May 2006.She is the sister of the complainant M on counts 56 and 57 which are offences of assault occasioning actual bodily harm. Ygives evidence, inter alia, of noticing bruises on the complainant's face and arms at a time when she was associating with the accused. I regard this part of the evidence as admissible and relevant irrespective of the contents of article 18. The complainant also told Y subsequently that she had been struck by the accused. I consider this evidence is of probative value and assuming it to be true in relation to the issues arising out of the counts 57 and 58. Other evidence is relevant to this account and it is important in the context of the case as a whole. This statement was made in circumstances when it would be not unusual for M to confide in her sister and whilst the reliability of the maker is yet to be tested she appears to be reliable. I do not see any difficulty involved in the accused challenging this evidence or that any material difficulty should occasion prejudice. There is other relevant evidence to be given in the context of this evidence but this material does potentially provide added evidential value. I therefore admit the evidence.

K4 is a complainant in this case who is the alleged victim of counts 1 to 6. These are counts of indecent assault, unlawful carnal knowledge and gross indecency. In the course of video evidence which she is to give, she refers to another complainant K5 who is the alleged victim in count 7, namely a count of indecent assault. In the course of her video interview K4 states:

"He didn't have sex with my friend (K5), he just like if you know what I mean, put his hand on the outside of her trousers and rubbed up and down in between her legs and he kissed her full on with all the tongue action as she says".

This witness is a complainant and is the alleged victim in counts 21-38. These are counts of indecent assault, rape, buggery and taking indecent photographs. In the course of her video recorded evidence, she relates a conversation between herself and N, the complainant in counts 70 to 77. In that conversation N is purported to have said that she performed sexual acts for reward with the accused. Mr Russell did not rely on Article 24. I therefore now consider article 18. I regard this matter as of probative value in relation to the issue in these counts and is relevant to other evidence in the case.The circumstances in which the statement was made does not arouse my concern . I regard it as important in the context of the case as a whole. The allegations was made during a conversation between two friends and those are circumstances which seem reasonable for such information to be confided. The reliability of the maker of the statement is yet to be tested as is the circumstances of the making of that statement but I see nothing as yet that causes me to doubt her reliability. However I do not see there is any great difficulty in the accused challenging the statement in cross examination and accordingly I do not believe that any difficulty as there is likely to prejudice him. There is oral evidence to be given of these matters by K6 and N. In the circumstances I consider that the evidence is admissible.

Bad Character

Statutory Background

"Defendant's Bad Character

6.-(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if –

(a) All parties to the proceedings agree to the evidence being admissible,

(b) The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(c) It is important explanatory evidence,

(d) It is relevant to an important matter in issue between the defendant and the prosecution,

(e) It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

(f) It is evidence to correct a false impression given by the defendant, or

(g) The defendant has made an attack on another person's character.

…

(3) The court must not admit evidence under paragraph (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under paragraph (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged."

Article 8(1), where relevant is as follows:

"Matter in issue between the defendant and the prosecution

8.-(1) For the purposes of Article 6(1)(d) the matters in issue between the defendant and the prosecution include –

(a) The question of whether the defendant has a propensity to commit offences of the kind with which he is charged, except for his having such a propensity makes it no more likely that he is guilty of the offence.

(2) Where paragraph (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of –

(a) an offence of the same description as the one with which he is charged, or

(b) an offence of the same category as the one with which he is charged.

(3) Paragraph (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case."

The Applications

Principles governing the approach of the Court to Articles 6(1)(d) and (g) of the 2004 Order

"Evidence of, or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence with which the defendant is charged or is evidence of misconduct in connection with the investigation or prosecution of that offence".

Article 17 of the Order defines misconduct as meaning "the commission of an offence or other reprehensible behaviour. "

(1) First a judge should consider whether the history of the convictions establishes a propensity to commit offences of the kind charged.

(2) Does that propensity make it more likely that the defendant has committed the offence charged?

(3) Is it unjust to rely on the conviction(s) of the same description or category (see Article 8(3) of the 2004 Order)?

(4) As to propensity to be untruthful, previous convictions are likely to be capable of showing such propensity only where, either there was a plea of not guilty and the defendant gave an account which the jury must have disbelieved, or the way in which the offence was committed showed such propensity eg by making false representations.

(5) Applications to adduce such evidence should not be made routinely, simply because the defendant had a previous conviction but should be based on the particular circumstances of each case.

(6) In ruling on any such application, the judge should bear in mind (a) that in referring to offences of the same description or category, Article 8(2) was not exhaustive of the types of conviction which might be relied on; (b) that it was not necessarily sufficient however in order to show such propensity that a conviction should be of the same description or category as that charged; (c) that there was no minimum number of events necessary to demonstrate such a propensity though the fewer the number of convictions the weaker was likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category would often not show propensity, but it might do so where, for example it showed a tendency to unusual behaviour. Child sexual abuse cases are comparatively clear examples of such unusual behaviour although this is not exhaustive. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction of shoplifting will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.

(7) That the strength of the prosecution case must be considered. If there was no or little other evidence against the defendant it was unlikely to be just to admit his previous convictions whatever they were.

(8) If there was a substantial gap between the date of the commission and the date of the conviction for the earlier offence the date of the commission would generally be of more significance than the date of conviction when assessing admissibility.

(9) That it would often be necessary to examine each individual conviction rather than merely looking at the name of the offence in that the sentence passed would not normally be probative or admissible.

(10) Where past events were disputed, the judge had to take care not to permit the trial to be unreasonably diverted into an investigation of matters not charged in the indictment.

(11) It is worth mentioning that in R v. Bovell; R v. Dowds (2005) 2 CR App. R 27 (Bovell's case) it was said to be necessary for all parties to provide information in relation to convictions and other evidence of bad character whether in relation to an defendant or some other person in good time. I observe also that in Hanson's case the Court of Appeal indicated that the prosecution ,when giving notice or making an application ,should state whether it relies on the mere fact of the conviction or also on the circumstances of it

(12) It is important to appreciate that in dealing with applications under Article 6(1)(d) and (g) that Article 6(3) applies only to these gate ways. Article 8(3) applies only to evidence of convictions used to establish propensity. In Hanson's case, the Court of Appeal said that the two sub sections were closely related, although not identical. It seems to me however that judges should also continue to apply article 76 of PACE when making rulings as to the use of evidence of bad character and exclude evidence which it would be appropriate to do so under article 76. In Hanson's case Rose LJ at page 304 paragraph 10 referred to a number of factors which need to be taken into account in assessing fairness:

"When considering what is just under section 103(3) [the equivalent of article 8(3)], and the fairness of the proceedings under s 101(3) [the equivalent of article 6(3)], the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or proscribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against the defendant it is likely to be just to admit his previous convictions, whatever they are."

(a) Hanson's case and Bovell's case make it clear that the court may require sufficient information about the misconduct relied upon to make a proper assessment of its admissibility. Merely because he had assaulted the complainant R before is in my view insufficient information to be placed before the court in order to show a propensity to be violent. I was unclear as to whether or not the accused had pleaded guilty or not guilty, what the circumstances of the assault had amounted to and, even if there had been a plea of guilty the basis of that plea particularly if it demonstrated differences from the manner and nature of the alleged assault in this case. It is important that the prosecution appreciate in the early days of the interpretation of this Order that the courts will be searching in their enquiries about previous convictions which are sought to be admitted. It is incumbent upon the prosecution to ensure that full information about a previous conviction which is sought to be adduced is available to be given to the court if it is requested.Mr Russell was unable to furnish me with the full details of the conviction and I was unsatisfied as to the circumstances in this instance.

(b) Following the principles set out in Hanson's case, I recognise that whilst there is no minimum number of events necessary to demonstrate a propensity, a single previous conviction for an offence of the same description or category does not by itself necessarily show propensity. I was given no information which would have led me to believe that this particular conviction exhibited a tendency to the kind of unusual behaviour which would have merited admission. Nothing suggesting a particular modus operandi was obvious to me.

(c) In so far as Article 6(1)(g) is concerned, the prosecution submitted that the accused had not only denied the charges against him but alleged that many of the complainants had become involved in the conspiracy against him and had concocted their evidence to obtain compensation. The vast majority of the offences alleged against the accused were of a sexual nature albeit there were 6 counts of assault occasioning actual bodily harm. I came to the conclusion that the admission of the evidence of this single count might have an adverse weight and effect on the fairness of the proceedings given that it was of an isolated nature and the precise circumstances were unknown.

L

(1)As in the case of M, I consider that someone having legal consensual sexual relations with a young woman does not necessarily connote a propensity to commit offences of the kind with which the defendant is charged namely against children. Even if it showed such a propensity, I do not think it makes it more likely that he had committed the offences charged given the nature of the offences in the indictment. I consider it would have been unfair to have admitted such evidence notwithstanding that there was a plausible argument made to me by Mr Russell that it did indicate a sexual interest in teenage girls. I consider that the vital distinction here is that this was very possibly lawful behaviour with a girl who was beyond the teenage years of protection afforded by the law for acts of consensual sex.

(ii) I invoke art 6(3)in this instance as I consider that the admission of this evidence under gateway6 (1)(g)would have such an adverse effect on the fairness of the trial for the same reasons as I have set out above .

P

"I went back upstairs and King followed me up and said through the door "If you don't get into bed I will get in beside you and make sure you stay there". I was frightened so me and my brother held the door but King made no attempt to come in".

Z

"When I got up he said, "Oh I saw your pants". I pulled my skirt down and walked away and King said, "It wouldn't be the first time I have seen them". An adult speaking to me this way made me feel very strange".

"When I was around 15 years old, again, I was babysitting for King's sister Tara. King appeared at the door and asked if anyone was in the house. I replied that there wasn't and he said that he needed bin bags so I said I would go and look for some so I went into the kitchen and looked under the sink. When I turned around King was standing behind me and I became frightened. I lifted A, the child I was looking after, because King's sister had told me he was not to get near the child. King asked me if I had a boyfriend and I said no. He then asked me, "Are you interested in an older man". I said that I wasn't. He then said, "Well if you were you know where to go". I was scared so I told him to go and he left the house. After that I stopped speaking to him because I was scared of him".

While this conduct might have come within the definition of bad character I invoke the use of art 6(3) in considering art 6(1)(g) because I consider that this evidence of this nature would have a disproportionate and therefore adverse effect on the fairness of the trial by virtue of what he has said whereas the key to these counts is a determination of what he actually did .

D

"When my grandson was born I used to visit my daughter quite often at her home with my husband and there would be young girls in the house a lot. These girls looked to me as if they were about 11 or 12 years old and I noticed that when I visited and Jason was there with my daughter, the girls would be there but when my daughter was in the house on her own the young girls were never there. On one occasion when I was at her house, four young girls were smoking at the back door and I asked (my daughter) why the girls were always there and she told me that the girls were Jason's friends. My daughter introduced me to the girls and three of them were called (had the same name as my daughter)and I remember it because I thought it was strange that these girls all had the same name as my daughter. There were a lot of occasions when I took my daughter out either to Ards or to my house in Portavogie."

M2

I conclude by acknowledging the care and skill with which both counsel approached these submissions before me both in their written arguments and oral submissions .