Factual and Procedural Background
The applicant, referred to as BJE, stood trial in the Crown Court at Teesside before Judge Smith between 23 January 2024 and 1 February 2024, charged with sixteen counts of sexual offences against two children, identified as C1 and C2. BJE was convicted on counts 5 and 6, relating to indecent assault on C1, and acquitted on counts 15 and 16 concerning offences against C2. The jury was unable to reach verdicts on the remaining counts related to C1, leading to a retrial scheduled for 6 May 2025. Sentencing on counts 5 and 6 was adjourned pending the retrial. The applicant renewed an application for leave to appeal against conviction on counts 5 and 6 following refusal by the single judge.
C1 is the stepson of BJE, whose mother, referred to as B, began a relationship with BJE in 2003. Allegations arose that BJE sexually abused C1 between 2003 and 2006, when C1 was aged 9 to 12. The prosecution case included four types of sexual abuse: oral sex involving BJE and C1, masturbation of C1 by BJE, and C1 masturbating BJE. The defence admitted some conduct admitted in a 2007 police caution but denied other allegations, including those relating to counts 5 and 6.
During trial, evidence included C1’s testimony, B’s testimony about events in 2004 and 2007, testimony from B’s friend, and evidence of BJE’s prior bad character, including a 2007 police caution for gross indecency related to sexual abuse of C1. The judge provided the jury with detailed directions distinguishing conduct admitted in the caution from that alleged in the current indictment.
Legal Issues Presented
- Whether the convictions on counts 5 and 6 are unsafe due to alleged overlap with conduct admitted in the 2007 police caution, potentially constituting an abuse of process.
- Whether the jury’s verdicts on counts 5 and 6 were inconsistent with their inability to reach verdicts on counts 11 and 12, which involved similar allegations under a different statutory regime.
Arguments of the Parties
Appellant's Arguments
- The conviction on counts 5 and 6 was unsafe because the jury was allowed to convict on conduct that was allegedly covered by the 2007 police caution, constituting an abuse of process.
- There was an unfair ambiguity between the terms "touching" (admitted in the caution) and "masturbation" or "rubbing" (charged in counts 5 and 6), which was not adequately clarified during the interviews leading to the caution or at trial.
- The jury’s inconsistent verdicts on counts 5 and 6 compared to counts 11 and 12 were irrational, given that both sets of counts depended on C1’s evidence, which contained contradictions.
Respondent's Arguments
The opinion does not contain a detailed account of the respondent’s legal arguments beyond acknowledging the receipt and consideration of a Respondent's Notice.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jones v Whalley [2006] UKHL 41; [2007] 1 AC 63 |
Abuse of process related to re-trial on conduct covered by a prior caution. |
The court considered whether it was an abuse of process to try BJE on counts overlapping with conduct admitted in the 2007 caution, ultimately rejecting the appellant’s abuse of process argument. |
| R v W (Martyn) (unreported 30 March 1999) |
Directions to jury regarding verdict consistency. |
Referenced in relation to the appellant’s argument about inconsistent verdicts; court found no merit as the defence did not seek directions during trial. |
| Rex v Mundle [2024] EWCA Crim 1289 |
Jury directions and inconsistent verdicts. |
Applied to reject appellant’s argument on inconsistent verdicts due to lack of trial-stage submissions. |
| R v G [2014] EWCA Crim 2508 |
Jury verdict consistency and evidential evaluation. |
Found to be of no assistance to the appellant’s argument on inconsistent verdicts. |
Court's Reasoning and Analysis
The court began by addressing Ground 1 concerning the alleged abuse of process. It noted that no application to exclude evidence or withdraw counts 5 and 6 was made during trial, resulting in no ruling on these points by the trial judge. Despite procedural shortcomings, the court assumed for fairness that the argument could be raised on appeal.
The court examined the scope of the 2007 police caution and related interviews. It found clear evidence that BJE admitted to touching C1’s penis but denied masturbating him. The documentation and interviews showed no ambiguity or admission of masturbation at the time of the caution. The court rejected the appellant’s contention that the distinction between touching and masturbation was insufficiently precise or unexplored.
The court also rejected the argument that the judge’s directions to the jury on "rubbing" versus "touching" were improper or relevant to Ground 1. It found that BJE understood the distinction and that the appellant’s presentation of these matters was tactical and inconsistent.
Regarding Ground 2, the court considered the appellant’s submission that the jury’s verdicts on counts 5 and 6 were inconsistent with their inability to agree on counts 11 and 12. The court explained that section 55 of the Violent Crime Reduction Act 2006 permits conviction on counts covering an indictment period when the jury is unsure of the precise timing relative to the enactment of the Sexual Offences Act 2003.
The court noted the trial judge’s careful and clear route to verdict and legal directions, which adequately addressed the temporal and evidential complexities. The court found rational explanations for the jury’s verdicts, including differing levels of certainty among jurors about timing, and rejected the appellant’s argument as lacking merit due to procedural omissions and legal misunderstanding.
Holding and Implications
The court REFUSED the application for leave to appeal against conviction on counts 5 and 6.
This decision directly affects the appellant by upholding the convictions on these counts and dismissing the appeal. The court did not establish any new legal precedent but reaffirmed established principles concerning abuse of process, evidential clarity in cautions, and the application of section 55 of the Violent Crime Reduction Act 2006 in relation to jury verdicts spanning changes in statutory regimes.