BLV, R. v

Factual and Procedural Background

The applicant was convicted on 9 August 2023 at the Crown Court at Preston of 10 child sexual offences committed against his nephew between May 2004 and January 2010. The offences included counts of causing a child under 13 to engage in sexual activity, causing a child to watch a sexual act, and causing a child to engage in sexual activity when older. The applicant received a total sentence of 12 years imprisonment composed of concurrent sentences ranging from 26 weeks to 12 years.

The applicant lodged an appeal 204 days out of time, raising two grounds. Ground 1 challenged the sufficiency of evidence that the complainant was under 13 during certain offences (counts 3, 4, and 6), arguing these convictions were unsafe. Ground 2 contended that the unsafe convictions on those counts undermined the reliability of the remaining convictions. The single judge referred Ground 1 for a full hearing but refused permission on Ground 2, which the applicant renewed.

The prosecution's case relied primarily on the complainant's Achieving Best Evidence (ABE) video interview, oral testimony, and disclosures to family and partner. The defence was a categorical denial of all allegations, including the age of the complainant at the time of the offences. The trial judge directed the jury that the complainant's age was not in dispute, and the jury convicted accordingly.

Following conviction and sentence, new legal representatives were instructed. Grounds of appeal were lodged after obtaining transcripts and consulting with trial counsel, who acknowledged that the complainant's evidence on age was ambiguous and that the issue had not been raised at trial.

Legal Issues Presented

1. Whether there was sufficient evidence that the complainant was under 13 years old at the time of the offences charged in counts 3, 4, and 6, such that the convictions on those counts were safe.
2. Whether the unsafe convictions on counts 3, 4, and 6 rendered the remaining convictions unsafe due to potential jury cross-contamination.

Arguments of the Parties

Appellant's Arguments

• The complainant’s ABE interview and evidence do not provide clear proof that the oral sex and mutual masturbation offences occurred before his 13th birthday.
• The complainant gave varying accounts of his age during the offences, with direct police questioning eliciting ages between 13 and 15.
• Ground 2 was argued on the basis of precedent from R v BRB, where unsafe convictions on some counts led to the entire set of convictions being unsafe due to the jury failing to follow directions properly.

Prosecution's Arguments

• There was sufficient evidence from the complainant’s ABE, oral testimony, and corroborative disclosures to be sure that the offences in counts 3, 4, and 6 took place when the complainant was under 13.
• Even if the convictions on those counts were unsafe, the remaining convictions were supported by evidence and unaffected, distinguishing this case from R v BRB.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the evidence concerning the complainant's age at the time of counts 3, 4, and 6. It noted that the evidence was ambiguous, with parts supporting that the complainant was under 13 and other parts suggesting he was older. The complainant’s recollections, disclosures to his partner and father, and confirmation in re-examination supported the possibility he was under 13 during the offences. However, the jury was not properly directed on this ambiguity and was incorrectly told the complainant's age was not in dispute.

The court found that a properly directed jury could have reached safe convictions on these counts, but because the issue was not highlighted, the convictions on counts 3, 4, and 6 were unsafe and could not stand.

Regarding Ground 2, the court found no evidence that the unsafe convictions on those counts affected the jury’s verdicts on the other counts. The failure in direction was specific to the complainant’s age on those counts and did not taint the remaining convictions, which were supported by consistent evidence. The court distinguished this case from R v BRB, where there was no evidential basis for some convictions and a systemic failure in jury directions.

The court also considered whether a retrial on the quashed counts was in the interests of justice and concluded it was not, given the passage of time, inconsistencies in evidence, and that other convictions remained undisturbed.

Holding and Implications

The court granted an extension of time to bring the appeal and granted leave on Ground 1. It allowed Ground 1 and quashed the convictions on counts 3, 4, and 6. The convictions on counts 1, 2, 5, 7, 8, 9, and 10 were undisturbed, and leave on Ground 2 was refused.

Consequently, the sentences on the quashed counts were set aside, reducing the overall sentence from 12 years to a total of 5 years imprisonment, reflecting concurrent sentences on the remaining counts. The court declined to substitute convictions or increase sentences on remaining counts and declined to order a retrial on the quashed counts, finding it not in the interests of justice.

No new precedent was established; the decision’s direct effect was to remove unsafe convictions while upholding others supported by evidence.