Factual and Procedural Background
On 31 March 2023, following a trial at the Crown Court at Bradford before Mr Recorder Gordon and a jury, the Appellant, aged 26 at the time, was convicted of one count of assault by penetration contrary to section 2(1) of the Sexual Offences Act 2003 (count 1). He was sentenced to nine years' imprisonment for this offence and concurrently to 16 months' imprisonment for assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 (count 2), to which he had pleaded guilty earlier.
The Appellant challenges the conviction on count 1 as unsafe, arguing that the Recorder wrongly refused an application to admit evidence of the complainant's bad character. The appeal was granted leave by the full court in February 2025. Additionally, two applications were before the court: one for leave to appeal on a second ground related to allegedly false or inconsistent statements by the complainant, and another for leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. Both applications were adjourned to the hearing.
The complainant, referred to as "C" to preserve anonymity, was the Appellant's ex-partner. Their relationship had a history of violence, including an incident in February 2021 where the Appellant struck C and later sought anger management help, supported by C's confirmation to his doctor that it was a one-off event. Another disputed incident occurred on 17 September 2021, where both parties accused each other of initiating violence, resulting in police attendance and C's arrest. The relationship ended thereafter.
The charges relate to events on 29 January 2022, when the Appellant visited C's home and assaulted her physically and sexually. Afterward, he went to his sister's home, who took him to hospital where he was arrested. The Appellant initially claimed no recollection of the events but admitted the physical assault while denying the sexual assault.
At trial, the prosecution alleged that the couple had rekindled their relationship despite not living together and that the Appellant, upon discovering C's return to escort work and messages from another man, became intoxicated and assaulted her. Evidence included text messages indicating jealousy and intoxication, and an Achieving Best Evidence interview with C describing the assault.
C described the assault involving physical violence and sexual penetration while being held down by the Appellant. The prosecution also called witnesses including the Appellant's sister, who testified that the Appellant confessed to rape and attempted killing of C, a neighbour who observed injuries and the assault, and a hospital consultant who detailed C's injuries.
The Appellant testified denying the sexual assault, suggesting C fabricated the allegations possibly to aid family proceedings. He offered alternative explanations for C's injuries and claimed his confessions to his sister were intoxicated misstatements.
After the Appellant's evidence, his counsel applied to admit the recording of a 999 call from September 2021 as non-defendant bad character evidence to challenge C's credibility. The Recorder refused the application. The jury was then directed and returned a guilty verdict on count 1 by a 10:2 majority.
Legal Issues Presented
- Whether the Recorder erred in refusing the application to admit the 999 call recording as evidence of the complainant's bad character.
- Whether the Victim Personal Statement (VPS), containing allegedly inconsistent or false statements by the complainant, constitutes fresh evidence that undermines the safety of the conviction.
- Whether the conviction on count 1 is unsafe in light of the above evidential issues.
Arguments of the Parties
Appellant's Arguments
- The complainant's credibility was central and the case was finely balanced, as evidenced by the jury's deliberation time and majority verdict.
- The 999 call recording should have been admitted as it demonstrated that the complainant lied about the September 2021 incident, thus undermining her credibility on the key issue.
- The VPS contained inconsistent accounts that further discredited the complainant, indicating fabrication or exaggeration.
- The statutory test for admitting non-defendant bad character evidence was met, and the conviction should be declared unsafe without this evidence.
- Reliance was placed on the precedent in R v Brewster and Cromwell [2010] EWCA Crim 1130, which emphasizes the need for evidence to be sufficiently persuasive to warrant consideration on a witness's creditworthiness.
Appellee's Arguments
The opinion does not contain a detailed account of the prosecution's legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Brewster and Cromwell [2010] EWCA Crim 1130 |
Test for admitting evidence of non-defendant bad character requiring that the evidence be sufficiently persuasive to be worthy of consideration on the issue of witness credibility. |
The court considered this precedent in assessing whether the 999 call recording met the statutory test for admissibility and found that it did not satisfy the substantial probative value requirement. |
Court's Reasoning and Analysis
The court evaluated the first ground of appeal regarding the refusal to admit the 999 call recording in the broader context of the evidence. The complainant's ABE interview, which included some account of the September 2021 incident, had been placed before the jury by agreement, though it was unclear how it was presented. The defence's late oral application to admit the 999 call was novel and not in compliance with procedural rules, but the Recorder nonetheless considered it.
After listening to the recording, the Recorder ruled it inadmissible, reasoning that the evidence related to events several months prior to the alleged sexual assault and did not directly address the key issue of sexual penetration on 29 January 2022. The recording lacked substantial probative value on a matter of substantial importance and risked distracting the jury with satellite litigation. The Recorder also noted that the jury had already been presented with some evidence about the September 2021 incident, and the recording did not clarify who was the aggressor.
The appellate court agreed with the Recorder's judgment, emphasizing that the 999 call could only demonstrate a limited and collateral issue about the complainant's account of the events in September 2021, not her propensity to lie or a previous false allegation of sexual assault. The court found it reasonable to exclude the recording to prevent distraction and delay.
Regarding the second ground, the court considered the VPS as fresh evidence but found it did not materially undermine the complainant's credibility. Differences in the complainant's accounts were attributed to the nature of questioning and the fuller detail in the VPS, which was authored by the complainant herself. The VPS did not support the admission of the 999 call recording and would have expanded collateral issues unnecessarily.
Overall, the court found the evidence supporting the conviction strong, including the Appellant's confessions to his sister and expert medical evidence corroborating the complainant's injuries. The Appellant's explanations were considered weak and internally inconsistent.
Holding and Implications
The court DISMISSED the appeal against conviction and refused the applications to admit fresh evidence and to appeal on the second ground.
The decision directly upholds the conviction for assault by penetration. The court found no error in the Recorder's evidential rulings and no basis to conclude the conviction was unsafe. No new legal precedent was established, and the ruling reaffirms the application of statutory tests for admitting non-defendant bad character evidence and fresh evidence in criminal appeals.