Factual and Procedural Background
The Sexual Offences (Amendment) Act 1992 anonymity provisions were applied to restrict publication identifying the victims; the court expressly declined to lift that prohibition. On 18 August 2023 at the Crown Court before Judge Kamill the Appellant, then aged 29, was convicted on multiple counts: one count of rape (count 3), three counts of causing a person to engage in sexual activity without consent (counts 5, 8 and 9), one count of assault occasioning actual bodily harm (count 11), possession of a firearm when prohibited (count 12), possession of a firearm with intent to cause fear of violence (count 13), threats to kill (count 14), and controlling a child aged 13 to 17 subject to sexual exploitation (count 15). The Appellant was acquitted on certain counts and three rape counts were left on the file after the jury failed to agree. The aggregate sentence imposed was an extended sentence of 23 years (18 years custodial plus a five year extension), with ancillary orders made.
The Appellant renewed applications for extensions of time and for leave to appeal against conviction and sentence. The court granted the short extensions of time sought. The proposed grounds of appeal against conviction comprised five grounds (jury irregularity and handling, refusal to investigate an irregularity, admission of bad character evidence, treatment of count 15 as an alternative, and alleged judicial pressure on the co-defendant concerning her counsel). The Appellant also advanced two grounds against sentence: that the dangerousness finding was unjustified and that the custodial term of 18 years on count 3 was manifestly excessive.
Legal Issues Presented
- Whether the court should grant the requested short extensions of time for filing the renewed appeals.
- Are grounds 1 and 2 (alleged jury irregularity and the Judge's handling/refusal to investigate) arguable such as to merit leave to appeal?
- Whether the admission of the Appellant's previous convictions (notably the 2009 conviction) for propensity under gateway G (and gateway D) was erroneous and unduly prejudicial.
- Whether permitting the jury to return a verdict on count 15 as a cumulative/alternative to counts 5, 8, 9 and 10 was procedurally or legally erroneous.
- Whether the Judge's remarks to the co-defendant about retaining counsel constituted undue pressure that produced unfair prejudice to the Appellant.
- Whether the Judge's finding of dangerousness was justified and whether the custodial element of 18 years imposed on count 3 was manifestly excessive.
Arguments of the Parties
Appellant's Arguments
- Grounds 1–2: The Judge misdirected herself over a serious jury irregularity (an alarming continuing altercation between jurors during deliberations) and failed properly to investigate after disclosure of a clerk/usher note, relying on "a lack of time".
- Ground 3: Admission of full detail of the Appellant's previous convictions (particularly the 2009 conviction) on propensity grounds was erroneous and unduly prejudicial; the 2009 conviction was old, involved the Appellant at a younger age, and the plea history differed from earlier reporting.
- Ground 4: It was erroneous to permit the jury to return a verdict on count 15 because it was intended as an alternative only if acquitted on all of counts 5, 8, 9 and 10.
- Ground 5: The Judge placed undue pressure on the co-defendant when she "advised" her to reconsider sacking counsel, which produced cross-examination adverse to the Appellant's interests.
- Sentence grounds: The dangerousness finding was unjustified; the 18 year custodial element on count 3 was manifestly excessive given sentencing principles.
Prosecution / Crown Arguments
- The prosecution submitted that gateway G (and gateway D) for bad character evidence was engaged and that the prior convictions were admissible for propensity; the admitted facts about antecedent convictions were relevant and properly before the jury.
- As to count 15, prosecution (and Attorney Cross) accepted the approach that count 15 came into play if there was an acquittal on any one of counts 5, 8, 9 or 10, and the Judge's clarification to the jury on the route to verdict was correct.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court first extended time for the renewed applications, finding the requested extensions short and not the Appellant's fault. It then assessed each proposed ground of appeal.
Grounds 1 and 2 (jury irregularity and refusal to investigate): the court acknowledged the difficulty of the situation faced by Judge Kamill and expressed sympathy, but found both grounds arguable and granted leave limited to those grounds. The court gave leave for appeal on those two issues and ordered representation (junior counsel) for the appeal.
Ground 3 (bad character / 2009 conviction): the court analysed the admissibility under gateway G (and noted gateway D also applied). The Judge's contemporaneous ruling that the 2009 conviction was clearly relevant (a sexual offence with similar features, committed in a place from which the victim could not leave and involving much younger victims) was held to be within entitlement. The court emphasised that once bad character is admitted by any gateway it may be used for any relevant purpose. The court concluded the 2009 conviction was properly admitted given it formed part of a sequence of antecedents; ground 3 was not arguable and leave was refused.
Ground 4 (count 15 as alternative): the court reviewed the summing-up and exchanges recorded. Although some passages could suggest confusion, the court found the ultimate direction—that count 15 could arise if there was an acquittal on any one or more of counts 5, 8, 9 or 10—was correct and was clarified to the jury. There was ample evidence to support the conviction on count 15, no arguable unfairness or unsafe verdict, and no objection was raised at trial by Attorney Payne to the route to verdict or the clarification. Ground 4 was refused.
Ground 5 (judicial pressure on co-defendant): the court reviewed the transcript and found no evidence of undue pressure by Judge Kamill; the Judge's remarks were appropriate to discourage an unrepresented trial, and there was no discernible unfair disadvantage to the Appellant. Permission to appeal on this ground was refused. The court noted, without deciding, an allegation in the Respondent's Notice that the co-defendant's complaints may have been contrived; that did not affect the decision.
Sentence grounds: the court found ample evidence supported the finding of dangerousness (previous convictions, facts of the current offending and the Pre-Sentence Report). The court accepted that the sentence on count 3 had to reflect overall criminality, including concurrent substantial sentences on counts 5, 8 and 9, the ABH, firearms offences and threats to kill; these factors justified an uplift from the stated starting point of 10 years to the custodial element of 18 years. The court concluded there was no arguable ground that the custodial term was manifestly excessive and refused leave to appeal against sentence.
Holding and Implications
HOLDING: The court ordered the requested short extensions of time and granted limited leave to appeal against conviction only on grounds 1 and 2 (the alleged jury irregularity and the Judge's handling/refusal to investigate). Leave to appeal was refused on grounds 3, 4 and 5. The renewed application for leave to appeal against sentence was refused in full.
Implications: The practical effect is a permitted, narrowly confined appeal on jury irregularity issues only; all other challenges to conviction and all challenges to sentence remain refused. The court granted a representation order for junior counsel for the permitted appeal. The opinion does not purport to establish new legal precedent; its effect is limited to the parties by allowing a focused appeal on specified procedural issues and rejecting the other grounds.