It is for the trial judge to determine, on the facts, whether in an individual case raising issues of cross-admissibility, directions on propensity and/or coincidence are required rather than only in rare cases or circumstances and there is no legal principle precluding a judge from giving both directions in an appropriate case. In some cases involving several complainants and a number of complaints, the judge may properly consider that no direction on either propensity or coincidence is appropriate and the jury should simply be given the separate consideration direction. In others, a direction on coincidence but not on propensity may be appropriate and there may be other cases still in which a direction as to propensity and coincidence will be appropriate (para 35–36).

There is no basis for the approach in the current version of the Crown Court Compendium warning judges that giving a direction as to both propensity and coincidence may be complex and confusing and they should only do so where the evidence on one or more counts is significantly stronger than that on the other(s) in cases where the jury might first convict on the stronger count(s) before treating that as establishing a propensity to commit offences of the kind charged in the other count(s). An assessment of the relative strengths of one count on an indictment compared to others may be invidious and there is no reason in law why a judge who gives such a direction should always be required to deal with propensity first and only after that with coincidence. Whilst it may be a convenient approach, it is not to be taken as a legal requirement in all cases. The approach to giving a direction on both propensity and coincidence needs to be broader and more open-textured (para 37, 39, 40).

In the context of cross-admissibility, a direction on both propensity and coincidence will be inappropriate in many cases. Crown Court judges will be alive to the need to avoid overloading juries with complex legal directions on matters which do not call for them but in a case where potential cross-admissibility issues as to propensity or coincidence or both have been raised, the matter should be debated fully with counsel in the absence of the jury and appropriately tailored legal directions crafted. The overarching principle is that the jury must be given relevant directions which reflect the particular circumstances in which questions of cross-admissibility arise in the case rather than template directions without adaptation. In that respect, the Court of Appeal endorse the advice from the Compendium that in cases where the judge considers issues of cross-admissibility arise, he or she may consider it prudent to raise them with the advocates, in the absence of the jury, early in the trial. If the Crown intends to open the case to the jury on the basis that at the end of the evidence the jury will be invited to consider issues of both propensity and coincidence, it is prudent for the matter to be addressed at the start of the trial to ensure the clear establishment of the parameters (para 41).

It is doubtful whether, in a case where the jury are to be directed as to cross-admissibility on both propensity and coincidence (a) it is right to mandate that they must consider propensity first, even if convenient, and (b) that the specimen direction in the Crown Court Compendium properly directs the jury as to their task and provides an effective warning about avoiding double counting (para 43).

Per curiam. The editors of the Crown Court Compendium may wish to reconsider and revise the current guidance on giving a direction as to both propensity and coincidence (para 40).