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Fulton & Anor, R. v
Factual and Procedural Background
This is an appeal from convictions and sentence arising from injuries sustained by a child ("The Child") in November 2019. Two adults who were the child's parents were charged on a four-count indictment: (1) causing grievous bodily harm with intent contrary to s.18 Offences against the Person Act 1861; (2) causing or allowing a child to suffer serious physical harm contrary to s.5(1) Domestic Violence, Crime and Victims Act 2004; and (3)-(4) two counts of cruelty to children contrary to s.20(1) Children and Young Persons Act (Northern Ireland) 1968 covering two time periods. Both defendants pleaded not guilty. After an aborted first trial, a second trial ran in September–October 2024 at which the jury returned the verdicts described below. Appellant A appealed against conviction (counts 2 and 3) and Appellant B appealed against sentence (count 1 headline; counts 3 and 4 concurrent). Appellant A had been acquitted on count 1 and count 4. Sentences were imposed in April 2025.
Legal Issues Presented
- Whether the trial judge misdirected the jury about the probative value of witnesses' and the accused's emotion/demeanour (and failed adequately to address a requisition on that point), such that Appellant A's convictions are unsafe.
- Whether the trial judge erred in sentencing Appellant B by (a) failing to identify a clear starting point for the section 18 offence or to explain a substantial departure from the usual range; (b) imposing identical concurrent sentences for counts 3 and 4 despite differing circumstances; (c) creating unjust disparity between the two parents' sentences; and (d) imposing the maximum extended licence period.
Arguments of the Parties
Appellant A's Arguments
- The judge misdirected the jury by giving a standard direction that "the presence or absence of emotion when giving evidence is not a reliable indication of whether the person is telling the truth", which undermined the defence case that contemporaneous demeanour supported her lack of knowledge.
- The judge failed to remedy this misdirection when counsel requisitioned the charge before the jury retired, and should have given a tailored direction about demeanour contemporaneous with the events (not only demeanour in the witness box).
Appellant B's Arguments
- The judge failed to identify a starting point for the headline s.18 offence and imposed a sentence substantially above the usual range without adequate explanation.
- The judge imposed identical concurrent sentences for counts 3 and 4 despite differing offending circumstances.
- The disparity between Appellant B's sentence on count 3 and Appellant A's sentence created a sense of injustice.
- The extended licence period (maximum five years) was disproportionate.
Crown's Arguments
- The judge's directions on emotion followed the Crown Court Compendium and relevant authorities and were adequate; demeanour evidence (both in-court and contemporaneous) can have probative value but must be treated cautiously.
- The headline sentence reflected extreme harm and high culpability; the overall sentence was not manifestly excessive and the extended licence was justified by risk assessments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| VJW [2022] EWCA Crim 164 | That a judge should direct a jury that a show of emotional distress when giving evidence is not a reliable indication of truth; demeanour can be relevant to credit. | Used to support the proposition that standard directions cautioning against equating emotion with truth are correct and that demeanour remains a relevant factor. |
| Keast [1998] Crim LR 748 | Limits on long-term demeanour as corroboration absent concrete basis; relevance of demeanour close in time to the event may have probative value. | Referred to when discussing when contemporaneous demeanour may be probative (res gestae analogy). |
| Venn [2003] EWCA Crim 236 | Application of Keast principle. | Noted as authority applying limitations on long-term demeanour evidence. |
| Townsend [2003] EWCA Crim 3173 | Res gestae analogy: demeanour closely associated with the event may have probative value. | Relied on to explain that contemporaneous reaction can support the account of events. |
| Zala [2014] EWCA Crim 2181 | Referenced in relation to demeanour and delayed complaints. | cited as part of the broader authorities on demeanour and its limits. |
| R v BZ [2017] NICA 2 | Direction required in cases where distress at time of complaint may be relied on; judge should tailor directions to circumstances. | Relied upon for the proposition that whether to give a direction depends on the facts and that distress evidence must be treated carefully. |
| R v Andrews (D) [1987] AC 281 | Factors for admitting statements under res gestae; analogy to demeanour evidence closely associated with an event. | Used to explain the rationale for admitting/attaching weight to contemporaneous demeanour evidence. |
| R v BUV [2025] EWCA Crim 327 | Admissibility and potential weight of contemporaneous change in demeanour; caution that such evidence is rarely decisive. | Referred to as an authority finding no error in admitting contemporaneous demeanour evidence and in upholding a standard warning about in-court demeanour. |
| Stoddard [1909] Cr App R 217 | Reviewing summings-up in light of trial conduct; appellate court does not overturn merely because different phrasing might have been better. | Quoted to support the approach to alleged imperfections in a lengthy charge and the test of miscarriage of justice. |
| R v Pollock [2004] NICA 34 | Safety of conviction test: whether verdict is unsafe. | Applied as the governing test for assessing whether Appellant A's convictions were safe. |
| R v Darren Fegan [2018] NICA 2 | Guideline range for s.18 offending against very young children (guidance that 7–15 years may be appropriate, with focus on vulnerability and harm). | Adopted as the starting guide for sentencing s.18 offending in this jurisdiction; court accepted flexibility to depart where justified. |
| R v ZB [2022] NICA 69 | Example of an extreme case where a substantial global sentence (noting prior plea adjustments) was upheld. | Used to support that extreme cases may justify sentences greater than the Fegan range. |
| R v Hutton [2024] NICA 19 | Totality guidance on structuring sentences. | Referred to note that totality should have been considered in greater detail by the sentencing judge. |
| R v Playfair [2024] NICA 21 | Article/schedule reference requiring extended custodial sentences for specified offences when dangerousness is found. | Applied in the postscript to correct the form of sentences on counts 3 and 4 to extended custodial sentences. |
| R v Redpath | Authority cited in BZ: cautioning that distress forming part of a complaint should be assessed with the complainant and not given separate weight. | Referred (via BZ) to underline that distress evidence must not be given undue separate weight. |
| R v AH | Authority cited in BZ on not giving separate weight to demeanour evidence. | Referred (via BZ) to support directions on assessing distress with care. |
| R v Romeo | Authority cited in BZ requiring caution that distress relied upon must be genuine/not feigned. | Referred (via BZ) to emphasise need for jury to be satisfied distress was not feigned before acting on it. |
Court's Reasoning and Analysis
The court considered two linked strands: (A) the conviction appeal concerning directions on emotion/demeanour; and (B) the sentence appeal.
(A) Conviction appeal (Appellant A). The court reviewed the trial judge's lengthy charge, noting that the judge had (i) identified and recounted extensive evidence about contemporaneous demeanour (medical staff, paramedics, civilian witnesses and police observations); (ii) given a Compendium-derived warning that displays of emotion in the witness box are not a reliable indicator of truth; and (iii) invited and received submissions on directions generally before charging the jury. Defence argued the standard direction was too prescriptive and undermined a central plank of the defence — that contemporaneous upset supported innocence. The court surveyed authorities (including VJW, Keast, Townsend, BZ, Andrews and BUV) distinguishing in-court demeanour and contemporaneous demeanour, and confirmed the legal position that emotion can be relevant but requires cautious, fact-specific direction. Applying Stoddard and the safety test in Pollock, the court held that although a more explicit recap linking in-court emotion to contemporaneous reactions might have been desirable, the judge's charge as a whole fairly presented the evidence and did not usurp the jury's role. The court found no miscarriage and held Appellant A's convictions safe.
(B) Sentence appeal (Appellant B). The court reviewed sentencing jurisprudence, identifying R v Darren Fegan as the local guideline range for very young child s.18 offending (7–15 years) but accepted that judges may go outside that range where facts warrant it, provided they explain why. The court concluded this was an extreme case (near-fatal injuries causing life-changing disability) and agreed a headline sentence near 18–20 years for the s.18 alone would have been open. It criticised the trial judge for insufficiently explaining any departure but found the overall outcome not manifestly excessive. The court adjusted the structure: it reduced concurrent seven-year terms on counts 3 and 4 to four years (to align with Appellant A's comparable sentence and for proportionality), and restructured the sentence to an 18-year term for s.18 with a consecutive four-year custodial element for other offending, yielding an overall 22-year custodial term. The court upheld the imposition of a five-year extended licence, finding it a discretionary but permissible choice supported by adverse psychiatric/risk reporting. Finally, the court corrected the form of sentencing in a postscript to impose extended custodial sentences on counts 3 and 4 where required by statute, without altering the overall effective length or licence period.
Holding and Implications
Both appeals dismissed.
Direct effects: Appellant A's convictions on counts 2 and 3 are upheld as safe. Appellant B's overall custodial sentence of 22 years is upheld; the court adjusted the internal composition (18 years s.18 consecutive to 4 years for other offending) and confirmed an extended licence of five years, and corrected counts 3 and 4 to concurrent extended custodial sentences as required. No fresh factual findings were made beyond the trial record.
Broader implication: The decision reiterates that (i) standard warnings about in-court emotion derive support from the Compendium and authorities but judges should tailor directions where contemporaneous demeanour is central; and (ii) sentencing ranges for s.18 offending against very young children (as in R v Darren Fegan) remain applicable but judges may exceed the range in extreme cases, provided their methodology is expressed clearly. The judgment supplies guidance on structuring and explaining departures from sentencing ranges in extreme child-abuse cases.
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