Factual and Procedural Background
These are renewed applications for leave to appeal against conviction and sentence following refusal by the single judge. The applicant, then aged 53, was convicted on 15 June 2023 at Snaresbrook Crown Court before HHJ Kamill and a jury of two counts of sexual assault of a child under 13 and one count of assault by penetration of a child under 13. A further count was ordered to lie on the file due to the jury's inability to agree. On 20 September 2023, the trial judge sentenced the applicant to 11 years' imprisonment on the penetration count and 8 years concurrently on the other counts, deciding he was not a dangerous offender. However, the sentencing on the penetration count was identified as unlawful because a special custodial sentence for offenders of particular concern should have been imposed instead of a determinate sentence.
The complainant was the 7-year-old daughter of a woman socially acquainted with the applicant. The applicant had a prior conviction from 2017 for sexual activity with a child aged 14, involving digital penetration, for which he was sentenced to 5 years and released on licence in 2020 with conditions restricting contact with girls under 16. Despite these conditions, in November 2021, the complainant visited the applicant’s home, where the offences occurred as alleged.
An Achieving Best Evidence (ABE) interview with the complainant was conducted with her mother present, contrary to guidance, and the mother intervened over 100 times during the interview. The applicant was arrested and denied the allegations. The trial defense was complete denial.
At a preliminary hearing in 2022, an application to exclude the ABE interview under section 78 of PACE was refused by HHJ Canavan, who found the breaches substantial but concluded a properly directed jury could still rely on the evidence. The trial eventually proceeded before HHJ Kamill and a jury.
The applicant also challenged the admission of bad character evidence relating to his 2017 conviction. The prosecution was permitted to admit the fact of that conviction, and the defense sought to introduce evidence to impugn the credibility of the complainant in the 2017 case, but the trial judge refused this application. The applicant maintained innocence of both offences and sought leave to appeal both conviction and sentence.
Legal Issues Presented
- Whether the ABE interview of the complainant, conducted with her mother present and with numerous interventions, should have been excluded under section 78 of the Police and Criminal Evidence Act 1984.
- Whether the admission of bad character evidence relating to the applicant’s previous conviction was lawful and whether the applicant was entitled to call evidence to challenge the credibility of the complainant in the prior case.
- Whether the sentence imposed on count 3 was lawful, given the failure to impose a special custodial sentence for offenders of particular concern under the Sentencing Act 2020.
- Whether the sentence passed was manifestly excessive, including consideration of the applicant’s medical condition and the weight given to previous convictions.
Arguments of the Parties
Appellant's Arguments
- The breaches of the Code of Conduct during the ABE interview were so serious that the interview should have been excluded, as the numerous interventions by the mother compromised the reliability and fairness of the evidence.
- The admission of bad character evidence based on the 2017 conviction was unfair, and the applicant should have been allowed to adduce evidence to challenge the credibility of the complainant in the earlier case, including calling witnesses or their statements.
- The sentence was manifestly excessive, with too much weight placed on the previous conviction and insufficient consideration of the applicant’s medical condition.
Respondent's Arguments
- The trial judge correctly applied the legal test in refusing to exclude the ABE interview, which, despite breaches, was reliable and could be fairly admitted.
- The admission of bad character evidence was lawful under section 101(1)(d) of the Criminal Justice Act 2003 and section 74(3) of PACE, and the defense’s attempt to challenge the prior conviction amounted to a prohibited rehearing of the earlier trial.
- The sentence was appropriate within the relevant sentencing guidelines, with the medical condition affording little mitigation and the uplift for previous convictions justified.
- The sentencing error regarding the type of sentence imposed on count 3 was identified by the Registrar and must be corrected on appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v K [2006] EWCA Crim 472 |
Legal test for exclusion of evidence under section 78 of PACE, focusing on impact on fairness and reliability. |
The trial judge applied this test carefully in refusing to exclude the ABE interview despite breaches, and the court upheld that decision. |
| R v C [2011] 1 Cr App R 17 |
Proper judicial control and case management of challenges to previous convictions admitted as bad character evidence. |
The court cited this case to support the trial judge’s refusal to permit re-examination of the prior conviction without fresh evidence, avoiding a retrial. |
| R v A [2020] 1 WLR 5014 |
Procedure for correcting unlawful sentences involving offenders of particular concern, including the need to avoid imposing a harsher sentence than originally passed. |
The court followed this precedent to restructure the sentence lawfully, reducing the custodial term to avoid contravening statutory limits. |
| R v D [2022] 1 Cr App R(S) 47 |
Application of R v A principles in cases where a special custodial sentence must be imposed but conflicts with release entitlement under the original sentence. |
The court applied the approach taken in R v D to reduce the custodial term of the special sentence to align with the original release date. |
Court's Reasoning and Analysis
The court began by considering the admission of the ABE interview. Although the mother’s presence and interventions breached the Memorandum of Good Practice, the trial judge had carefully scrutinized the interview and concluded that a properly directed jury could find the evidence reliable and untainted. The court agreed there was no realistic prospect of the conviction being unsafe on this basis.
Regarding bad character evidence, the court noted that the prosecution was entitled to rely on the fact of the prior conviction under section 101(1)(d) of the Criminal Justice Act 2003 and section 74(3) of PACE, which creates a presumption of guilt unless rebutted. The defense’s attempt to introduce evidence to impugn the credibility of the complainant in the earlier case was essentially an attempt to relitigate that conviction without fresh evidence, which was properly refused to avoid a retrial of the earlier offence.
On sentencing, the court acknowledged the error in imposing a determinate sentence on count 3 rather than a special custodial sentence for offenders of particular concern as required by the Sentencing Act 2020. The court referred to established authorities (R v A and R v D) to guide the correction of the sentence without imposing a harsher penalty than originally given. The court reduced the custodial term accordingly and substituted a lawful special custodial sentence with an extended licence period.
The court also rejected the appellant’s submissions that the sentence was manifestly excessive, noting that the sentence fell within the appropriate category range and that the applicant’s medical condition provided little mitigation.
Holding and Implications
The court REFUSED the renewed application for leave to appeal against conviction, finding no realistic prospect of the conviction being unsafe due to the admission of the ABE interview or bad character evidence.
The court GRANTED leave to appeal against sentence solely to correct the unlawful sentence on count 3. The original sentence was quashed and replaced with a special custodial sentence of 8 years and 2 months, comprising 7 years and 2 months custody and 1 year extended licence, to run concurrently with the other sentences.
The correction of the sentence does not set new precedent but ensures compliance with statutory sentencing requirements. No other grounds for appeal were found meritorious, and the remaining applications for leave to appeal against sentence were refused.