BJK, R. v

Factual and Procedural Background

The appellant ("Appellant") was convicted in May 2023 at the Crown Court at Lewes before HHJ Mooney and a jury of 11 serious sexual offences against two complainants ("Complainant B" and "Complainant C"). The offences related to counts 1-8 involving Complainant B and counts 9-11 involving Complainant C. The Appellant was sentenced on 14 September 2023 to a Special Custodial Sentence of 10 years pursuant to the Sentencing Act 2020, comprising 9 years' custody and 1 year on licence, and a consecutive determinate sentence of 7 years. The Appellant appeals against conviction on three grounds for which leave was granted and renews an application to appeal the sentence.

Complainant B was known to the Appellant from around 2009 through local pubs where the Appellant worked. Complainant C was the Appellant's stepdaughter. Allegations arose following marital difficulties between the Appellant and C's mother ("M"), leading to police investigations and interviews in 2019. Complainant B alleged sexual grooming and intercourse beginning when she was 13, and Complainant C alleged abuse between ages 11 and 13.

The Appellant denied all allegations, claiming that Complainant B was infatuated with him and that he had only offered advice. The prosecution relied heavily on the evidence of Complainants B and C, supported by other witness testimony.

Procedurally, the defence finalised a Defence Statement in January 2021, which included a suggestion that Complainant B may have transposed abuse by other men onto the Appellant. Disclosure issues arose, including delayed service of an Occurrence Enquiry Log Report detailing Complainant B's prior allegations against multiple men. The defence made applications under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine Complainant B about previous complaints, which were refused by the trial judge in rulings in April 2022 and April 2023. The retrial occurred in May 2023.

Legal Issues Presented

1. Whether the trial judge erred in refusing leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to allow cross-examination of Complainant B about prior sexual complaints against other men and the possibility of confusion or transposition of abuse allegations.
2. Whether the editing of the Appellant's interview evidence was improper.
3. Whether leave to appeal against sentence should be granted, including consideration of sentencing errors and the appropriateness of the aggregate sentence imposed.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that section 41 did not apply to questions about Complainant B's confusion or transposition of abuse allegations from other men onto him.
• Alternatively, if section 41 applied, leave should have been granted under subsections (3) and (5) because the evidence related to a relevant issue and was necessary to rebut the prosecution's case.
• The Appellant argued there was an evidential basis to suggest Complainant B might have been mistaken or that some prior allegations might be untrue, justifying cross-examination.
• The Appellant challenged the editing of his interview, asserting it improperly excluded relevant material.
• Regarding sentencing, the Appellant submitted the sentence was manifestly excessive, criticizing the upward adjustments from guideline starting points and the cumulative total.

Prosecution's Arguments

• The prosecution submitted that section 41 applied to the proposed cross-examination, which concerned the complainant's sexual behaviour.
• They argued that there was no evidential foundation for the suggestion that Complainant B had transposed abuse from other men onto the Appellant, making the proposed questioning speculative.
• Allowing such questions would risk unnecessary and irrelevant invasion of the complainant's privacy and would not render the conviction unsafe.
• On sentencing, the prosecution supported the judge's approach, emphasizing the seriousness of the offences and the appropriateness of the sentence imposed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the application of section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts evidence or questions about a complainant's sexual history unless leave is granted under strict conditions. The court acknowledged that the defence sought to cross-examine Complainant B about prior complaints against other men to suggest she had confused or transposed abuse allegations onto the Appellant.

The court found that section 41 was engaged because the proposed questions related directly to Complainant B's sexual behaviour. The defence accepted the prior sexual behaviour with other men was true, so the questioning was not about falsity but about inadvertent transposition, which still fell within the ambit of section 41.

Applying the statutory criteria, the court concluded there was no evidential foundation for the suggestion of confusion or transposition. The complainant's accounts of abuse by other men were distinct in nature, location, and circumstances from those involving the Appellant. The complainant's immediate reaction to the Appellant's contact in 2019 supported the inference that she was not confused. The proposed questions were therefore speculative and would not render the conviction unsafe if excluded.

The court also held that the main purpose of the application was to impugn the complainant's credibility, which section 41(4) prohibits. The court rejected the argument that excluding such questions caused unfairness, emphasizing the protective purpose of section 41 to prevent unnecessary humiliation and harassment of complainants.

Regarding sentencing, the court agreed with the Single Judge that the sentence imposed was within the proper range, reflecting the seriousness of the offences and the principle of totality. However, the court identified technical errors in the sentencing procedure, including the incorrect statutory provision cited for the Special Custodial Sentence and the sequence of imposing sentences. These were corrected administratively and by declaration.

Holding and Implications

The court DISMISSED the appeal against conviction, upholding the trial judge's rulings that section 41 applied and that the proposed cross-examination was speculative and lacked evidential foundation. The exclusion of the Appellant's interview material was also upheld.

The court GRANTED LEAVE to appeal against sentence solely to the extent necessary to correct technical errors in the sentencing procedure, including:

• Declaring that the sentence on Count 9 was a Special Custodial Sentence pursuant to the correct statutory provision comprising 9 years custody and 1 year licence.
• Directing that the determinate sentence should be imposed first, with the extended sentence running consecutively.
• Confirming the correct statutory basis for the Sexual Harm Prevention Order.

In all other respects, the renewed application to appeal the sentence was refused. The decision does not set new legal precedent but reinforces the strict application of section 41 to protect complainants from speculative questioning about their sexual history and confirms procedural requirements in sentencing for serious sexual offences.