Factual and Procedural Background
This appeal concerns the conviction of the Appellant, aged 43 at the time of appeal, following her trial in the Crown Court at Portsmouth on 12 counts of sexual offences involving her two sons, referred to as A and B. The offences spanned from 2010 to 2014 and included causing or inciting a child under 13 to engage in sexual activity, sexual assault of a child under 13, causing a child to watch a sexual act, and engaging in sexual activity in the presence of a child, all contrary to provisions of the Sexual Offences Act 2003.
In March 2020, the Appellant was sentenced to 17 years' imprisonment and subjected to a Sexual Harm Prevention Order. The children, born in 2004 and 2008 respectively, were removed from the Appellant’s care in December 2014 due to concerns including contact with the Appellant’s uncle, a registered sex offender and biological father of child A, and the Appellant’s inability to protect B from alleged sexual abuse by A.
Following disclosures by both children in 2017 and 2018, police investigations commenced. The prosecution alleged a highly sexualised household with detailed accounts of sexual abuse by the Appellant towards both sons, as well as violence and neglect. The defence denied all allegations, asserting a normal and loving relationship and claiming fabrication by the children.
During the trial, the judge made several evidential rulings, three of which form the basis of this appeal.
Legal Issues Presented
- Whether the judge erred in excluding evidence of sexual abuse of B by A as relevant bad character evidence under sections 41 and 100 of the relevant statutes.
- Whether the judge erred in admitting evidence of B’s sexualised behaviour towards the Appellant that was not the subject of any count.
- Whether the judge erred in admitting video evidence showing B engaged in alleged sexual self-touching.
- Whether the cumulative effect of these evidential rulings rendered all the Appellant’s convictions unsafe.
Arguments of the Parties
Appellant's Arguments
- The exclusion of evidence of sexual abuse by A against B deprived the jury of highly relevant background and context, including explanations for B’s sexualised behaviour.
- The admission of evidence of B penetrating the Appellant’s vagina was prejudicial as it was unindicted and more serious than the charges, and its prejudicial effect was exacerbated by the exclusion of A’s abuse evidence.
- The admission of the video showing B’s sexual self-touching was inconsistent with the exclusion of other sexualised behaviour evidence, unfairly enabling the prosecution to attribute B’s behaviour solely to the Appellant.
- The errors affected all convictions due to the judge’s cross-admissibility direction, rendering the convictions unsafe.
Prosecution's Arguments
- The judge was correct to exclude evidence of sexual behaviour between the two boys as it lacked probative value and was irrelevant to the charges against the Appellant.
- The evidence of B’s sexualised behaviour towards the Appellant and the video evidence were relevant and probative regarding the nature of the relationship and were properly admitted.
- The case against the Appellant was strong, with no realistic suggestion of contamination or collusion, supported by inconsistencies and lies in the Appellant’s evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Braithwaite [2010] 2 CrAppR 18 |
Assessment of probative value of bad character evidence under s.100(3) |
Used to emphasize that assessment is fact-sensitive and must consider similarities/dissimilarities in misconduct allegations. |
| R v Bogdanovic [2020] EWCA Crim 1229 |
Admissibility of evidence and risk of satellite litigation |
Confirmed that risk of satellite litigation is a factor in admissibility under s.100 but not a standalone ground for exclusion. |
| R v Dizaei [2013] EWCA Crim 88 |
Consideration of fairness and admissibility under s.100 |
Endorsed approach to weighing risk of trial derailment in assessing admissibility. |
| R v King [2015] EWCA Crim 1631 |
Approval of Dizaei approach |
Approved the consideration of trial risks in admissibility assessments. |
| R v Umo and Another [2020] EWCA Crim 284 |
Endorsement of Dizaei principles |
Reinforced importance of jury’s ability to resolve evidential disputes under s.100. |
| R v TG [2020] EWCA Crim 939 |
Application of s.100 evidential criteria |
Confirmed assessment factors for admissibility of bad character evidence. |
| R v Fichardo [2020] EWCA Crim 667 |
Interaction of s.41 and s.100 in sexual offence cases |
Clarified that evidence about sexual behaviour of complainant engages both s.41 and s.100. |
| R v BT and MH [2001] EWCA Crim 1877 |
Limits on evidence about complainant’s sexual behaviour under s.41 |
Established that evidence must not be primarily to impugn credibility. |
| R v Brewster and Cromwell [2010] EWCA Crim 1194 |
Exclusion of evidence under s.78 PACE |
Distinguished from s.100 where no general discretion to exclude once criteria met. |
| Re: T [2012] EWCA Crim 2358 |
Mandatory admission of evidence once s.41 criteria met |
Confirmed no discretion to exclude evidence under s.41 once admissibility conditions fulfilled. |
Court's Reasoning and Analysis
The court analyzed the admissibility of evidence under sections 41 and 100 of the relevant criminal justice statutes, focusing on the probative value and relevance of the disputed evidence to the case as a whole.
Regarding the first ruling, the court found that the evidence of sexual abuse of B by A and related credibility issues did not meet the threshold for important explanatory evidence under s.100(1)(a) as the jury could understand the case without it. Furthermore, the evidence lacked substantial probative value under s.100(1)(b) because it did not relate to a matter of substantial importance in the context of the case. The court also noted the difficulty the jury would face in resolving conflicting accounts between A and B and that such evidence did not materially assist in determining the Appellant’s guilt or innocence.
On the issue of s.41, the court recognized that the evidence concerned sexual behaviour of a complainant and thus required satisfying both s.41 and s.100 criteria. Since the s.100 criteria were not met, the evidence was rightly excluded.
For the second ruling, the court upheld the judge’s decision to admit evidence of B’s sexualised behaviour towards the Appellant despite the absence of a specific charge. The evidence was relevant to the key issue of the nature of the relationship between B and the Appellant and was not unduly prejudicial.
The third ruling concerning the iPad video was similarly affirmed. The video was direct evidence of B’s behaviour during the relevant period, relevant to counts involving B, and properly admitted for the jury’s consideration.
Finally, the court emphasized the strength of the overall prosecution case, noting the absence of any realistic suggestion of contamination or collusion, the detailed and consistent nature of the children’s accounts, and the Appellant’s significant lies and denials that undermined her credibility.
Holding and Implications
The appeal is dismissed and the convictions are upheld.
The court concluded that none of the evidential rulings individually or cumulatively rendered the convictions unsafe. The exclusion of evidence regarding sexual abuse between the children did not deprive the Appellant of a fair trial, and the admitted evidence was relevant and properly before the jury. The decision affirms the convictions and sentences imposed without setting new precedent beyond the application of established statutory and case law principles.