Foreign criminal convictions and character directions
| Author | Adam Jackson |
| Date | 01 December 2015 |
| DOI | 10.1177/0022018315619268a |
| Published date | 01 December 2015 |
| Subject Matter | Court of Appeal |
through implied force and threat and therefore does not leave injuries on a woman’s body (see C. White
and I. McLean, ‘Adolescent Complainants of Sexual Assault: Injury Patterns in Virgin and Non-Virgin
Groups’ (2006) 13 Journal of Forensic Medicine 172). The search for external medical evidence to legit-
imate M’s story recalls the dark days of the mandatory corroboration warning in sexual offences trials
(see RvBaskerville [1916] 2 KB 65).
Finally, this case raises fundamental questions about the relevance of medical evidence pertaining to
the hymen. As leading forensic experts have recently stated, ‘the status of the hymen has no correlation
with previous penetration or sexual contact; it does not enable a determination of whether penetration of
the hymen or vagina by a penis or any other object has occurred. An individual with an undamaged
hymen may or may not have experienced penetrative sexual contact. There similarly may be no trace
of hymenal lesion following sexual assault’ (Independent Forensic Expert Group, ‘Statement on Virgi-
nity Testing’ (2015) 33 Journal of Forensic and Legal Medicine 121 at 123). In other words, the presence
or absence of the hymen is of no medical diagnostic value, and thus of no probative value in criminal
trials. Admitting evidence of hymenal disruption has the potential to distort the fact-finding goal of the
trial. In the context of the stubbornly high attrition rates in rape and sexual assault prosecutions (see
Stanko et al., ‘Complaints of Rape and the Criminal Justice System: Fresh Evidence on the Attri-
tion Problem in England and Wales’ (2015) 12(3) European Journal of Criminology 324) this is an
issue that deserves considered reflection by practitioners and academics. This case is a timely
reminder to prosecutors in particular that the option of ‘strengthening’ complainant testimony by
reference to medical evidence relating to the hymen should be treated with great caution, because
it may prove counter-productive.
Sinead Ring
Foreign criminal convictions and character directions
RvBenjamin (Mark) [2015] EWCA Crim 1377
Keywords
Character, judicial directions, previous convictions, foreign convictions
Following trial at Harrow Crown Court the appellant (B) was convicted of a single count of theft and
acquitted of a single count of battery. Both charges arose from an incident which occurred while B was
shopping at a Sainsbury’s store in Willesden, North West London, with his two children aged six and
four. Whilst at the till B placed items which had been scanned into his rucksack before the till developed
a problem. B then refused to allow the items to be rescanned and left the store with the items still in his
rucksack (at [4]). This formed the basis of the theft charge. Outside of the store B was stopped by a secu-
rity guard with whom a ‘scuffle ensued’ during the course of which B ‘was alleged to have delivered a
blow to the security guard’s face’ (at [5]) thus forming the basis of the charge of battery. B argued that he
had left the store due to ‘concerns for his autistic son who was with him’ (at [7]). He denied being dis-
honest or having an intention to permanently deprive, claiming that he had ‘intended to put the goods to
one side when he got home’ (at [7]). B denied committing a battery against the security guard.
At trial it was identified that B had a previous conviction from 2003 for being drunk and disorderly
and a conviction from 2009 from the Criminal Court in Nice, France, for assault and assault upon a pub-
lic officer. A separate conviction for violent disorder was disregarded due to a certificate of conviction
not being obtainable. The defendant asserted that the French ‘conviction’ was in fact closer to what the
courts in England and Wales would recognise as a ‘bind over’ (at [15]) and instructed his counsel ‘that
388 The Journal of Criminal Law 79(6)
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