Fowler, R. v

Factual and Procedural Background

The applicant, aged 69 at the time of trial, was convicted on 26 July 2023 at the Crown Court in The City of two counts of sexual assault and three counts of indecent assault on a male person, with acquittals on two other counts. The offences involved three complainants, referred to as C1, C2, and C3, with incidents spanning from the early 1990s to the mid-2000s. The applicant was sentenced on 27 September 2023 to an extended sentence of 10 years, including an 8-year custodial term extended by 2 years, with concurrent shorter sentences for other counts.

C2's allegations involved incidents occurring between 1990 and 1992, including indecent assault in a garden tent and in his bedroom, with C2's family moving abroad in 1992. C3's allegations related to an incident in 1994 during a sleepover at the applicant's home. C1, who has learning disabilities, alleged abuse occurring between 2005 and 2008 at a squash club, where the applicant was a colleague of C1's father.

The applicant denied all offences, acknowledging acquaintance with the complainants but denying any inappropriate behaviour. The applicant's defence included claims that C3 was a habitual liar and that the complainants may have known of each other's complaints, which was not presented to the jury as a fact. The jury convicted the applicant on five counts and acquitted on two.

The applicant subsequently sought leave to appeal both conviction and sentence, seeking to introduce fresh evidence and amend grounds of appeal, following refusal by the Single Judge.

Legal Issues Presented

1. Whether the applicant should be granted leave to appeal against conviction based on alleged non-disclosure and fresh evidence concerning complainants' knowledge of each other's complaints.
2. Whether the applicant should be granted leave to appeal against sentence, specifically challenging the length of the custodial term and the finding of dangerousness.
3. Whether the failure to formally amend the indictment regarding the number of incidents in count 2 rendered the conviction unsafe.
4. Whether the fresh evidence regarding C3's previous convictions and an email from C2's mother should be admitted and affect the safety of the conviction.

Arguments of the Parties

Appellant's Arguments

• C2 and C3 may have known of each other’s complaints, which was not properly disclosed or presented to the jury, potentially affecting the fairness of the trial.
• The applicant sought to rely on fresh evidence, including an email from C2’s mother revealing knowledge of another complaint and C3’s previous convictions, to challenge the credibility of complainants and the safety of the conviction.
• The sentence was argued to be manifestly excessive, with the custodial term on count 1 exceeding guideline ranges and the dangerousness finding being procedurally flawed and unsupported by the pre-sentence report.
• The applicant contended that good character was wrongly treated as an aggravating factor and that insufficient credit was given for lack of previous convictions.
• The applicant challenged the absence of a jury direction regarding the burden of proof relating to concoction or motive to fabricate allegations.
• It was submitted that the indictment’s reference to multiple incidents in count 2, not formally amended, did not correspond to the evidence and should have been corrected.

Respondent's Arguments

• The prosecution case was that the three complaints were independent and the complainants did not know each other; this was not challenged by the defence at trial.
• The email from C2’s mother was not before the jury, but the gist of her knowledge was disclosed and the email would not have assisted the jury in assessing the case.
• C3’s previous convictions had limited probative value given the nature and timing of offences and did not undermine the complainant’s credibility significantly.
• The jury was properly directed on the burden and standard of proof, and no additional direction on motive or concoction was necessary.
• The sentencing judge properly considered the totality of offending, the harm caused, and the applicant’s position in society, justifying the sentence imposed.
• The finding of dangerousness was supported by the pre-sentence report despite some internal inconsistencies, and procedural fairness was maintained.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the applicant's grounds of appeal concerning alleged non-disclosure and fresh evidence, focusing on whether these affected the safety of the convictions. It found that the prosecution had presented the complaints as independent, a position not challenged at trial. The jury was made aware that C2's mother knew of another complaint and had informed C2, but the precise details in the email were not disclosed; however, this omission did not mislead the jury or create a lurking doubt.

The court noted the chronology of disclosures showed no possibility of collusion or concoction among complainants, as the complaints were made over many years and independently. The jury was properly directed on burden and standard of proof, and no additional direction on motive or fabrication was necessary.

Regarding fresh evidence of C3’s previous convictions, the court held that while the convictions were not disclosed at trial due to prosecutorial error, the nature and timing of these offences meant they had limited probative value and would not have rendered the conviction unsafe.

The email from C2’s mother was admissible fresh evidence but did not undermine the convictions given the jury’s existing knowledge. The court emphasized the strength and consistency of the complainants’ evidence and the careful consideration by the jury, who acquitted the applicant on some counts.

On sentencing, the court acknowledged the applicant’s good character but found the aggravating features, including the breach of trust, grooming, and exploitation of vulnerable individuals, justified the custodial term. The court identified an internal inconsistency in the pre-sentence report’s assessment of dangerousness and concluded that the sentencing judge had not adequately explained the dangerousness finding, rendering it unjustified.

Consequently, the sentence was adjusted by quashing the extended sentence and substituting a determinate sentence of 8 years, while maintaining concurrent sentences on other counts.

Holding and Implications

The court refused the renewed application for leave to appeal against conviction. The application for leave to appeal against sentence was granted with an extension of time. The extended sentence on count 1 was quashed and replaced with a determinate sentence of 8 years. The separate finding of dangerousness was also quashed. Sentences on remaining counts were upheld.

The decision directly affects the applicant by modifying his sentence and rejecting the appeal against conviction. No new precedent was established, and the ruling primarily reinforces existing principles regarding the assessment of fresh evidence, disclosure obligations, jury directions, and sentencing considerations in sexual offence cases.