Sands, R. v

Factual and Procedural Background

On 23 August 2024 in the Crown Court at The City before Judge Russell the Appellant was convicted of rape (counts 1 and 3), attempted rape (count 4) and voyeurism (count 5) and acquitted of a sexual assault (count 2). The Appellant was sentenced to an overall term of 12 years' imprisonment. The Appellant and the Plaintiff had been in a relationship for around three years and had premature twins born in July 2017. On 31 October 2019 the Plaintiff contacted police after discovering that the Appellant had installed a tracking app on her phone; police then discovered videos on the Appellant's phone, including a video of apparent anal penetration dated 9 September 2019. The Appellant previously pleaded guilty in May 2020 to stalking the Plaintiff and received a community order. The Appellant appealed against conviction (grounds 2 & 4 with a renewed application on ground 5) and against sentence with leave.

Legal Issues Presented

1. Whether the trial judge erred in failing to give directions to the jury on the use to which evidence admitted under s.98 of the Criminal Justice Act 2003 (including the stalking conviction and passages of ABE interviews) could, and could not, be put (grounds 2 and 4).
2. Whether the judge erred in refusing applications under s.41 of the Youth Justice and Criminal Evidence Act 1999 to elicit and adduce the Plaintiff's prior sexual behaviour, in particular WhatsApp/text messages with an individual known as "B" (renewed ground 5).
3. Whether the overall sentence of 12 years' imprisonment was manifestly excessive, including challenges to the categorisation and starting point for the lead offence and the adequacy of mitigation allowed.

Arguments of the Parties

Appellant's Arguments

• The judge failed to direct the jury properly on the permissible uses of s.98 evidence (ground 2) and on admission and use of ABE interview content (ground 4).
• The judge erred in refusing s.41 applications to admit the Plaintiff's WhatsApp/text messages with "B" in full and thereby inhibited a fair opportunity to challenge credibility/rebut evidence (ground 5).
• The Appellant maintained that sexual contact was consensual or that he had a reasonable belief in consent; he asserted a prior agreement about a safe word ("Pineapple").
• On sentence, the Appellant argued mis-categorisation of the lead offence, excessive starting point/uplift, insufficient allowance for good character and mitigation, and that the overall sentence was manifestly excessive.

Prosecution's Arguments

• The evidence of the stalking conviction and the redacted ABE material was properly admissible under s.98 (and alternatively under s.101(1)(c)) as explanatory of the relationship and relevant to consent.
• The judge applied correct legal principles and gave appropriate directions on consent, submission versus consent, and the relevance of relationship history; the judge's limited allowance on s.41 material preserved fairness.
• On sentence, aggravating features and the observed severe psychological harm justified the categorisation, starting point and total sentence imposed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reviewed the procedural history and the admissibility rulings. It accepted that the stalking conviction and the redacted ABE interview material were properly admissible under s.98 of the Criminal Justice Act 2003 and that no challenge to that admissibility persisted. Applying the approach in R v Hunter, the court emphasised context and the trial judge's feel for the case: defence counsel had not objected to the judge's proposed directions at trial and much contested material had been redacted in accordance with the judge's rulings. The judge's directions on consent, submission versus consent, and how past sexual behaviour bore on consent were recited and found to be clear and tailored to the issues. The court distinguished R v MA on its facts, noting MA featured prominent non-sexual physical violence; here the s.98 material related to sexual conduct and control within the relationship.

On ground 5 the court reviewed the judge's application of s.41 and Hamadi and her exercise of judgment under s.41(5) (including Art.6 considerations). The judge permitted a limited question to the Plaintiff about whether she had engaged in sexual fantasy/role-play messages with Individual B and only admitted messages if the Plaintiff denied their existence; the court considered that approach fell within judicial discretion and preserved fairness.

On sentence the court reviewed the judge's findings: categorisation of harm (count 3 as category 2A), starting points, aggravating features (recording, offences in the Plaintiff's home, presence of children, lack of remorse), and mitigation. The appellate court held that a judge may rely on observations of the complainant to assess psychological harm and that the sentencing exercise, including uplift and totality, did not produce a manifestly excessive outcome.

Holding and Implications

Disposition: The renewed application for leave to appeal under ground 5 is refused; the appeals against conviction (grounds 2 & 4) and against sentence are dismissed.

Consequences: The Appellant's convictions and the 12-year custodial sentence are upheld. The court found no material misdirection or mishandling of s.41 or s.98 material that rendered convictions unsafe; the judge's sentencing choices were not manifestly excessive. The opinion does not identify any new legal principle or precedent beyond applying existing authorities to the facts of this case.