England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT BRISTOL
HH Judge Lambert
T2014 7587

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/7/2016

Lord Justice Simon:

1. On 27 February 2015 at Bristol Crown Court, the appellants Denham and Stansfield each pleaded guilty to a number of sexual offences.
2. On 22 April 2015, following a trial before HHJ Lambert and a jury, Denham was convicted of Conspiracy to Sexually Assault a Child under 13. This was a conviction on count 1A, which was an alternative to count 1 on the trial indictment: Conspiracy to Rape a Child. On the same occasion Stansfield was convicted of two counts of Conspiracy to Rape a Child (counts 2 and 4).
3. Denham's and Stansfield's applications for leave to appeal against conviction and for a representation order have been referred to the full court by the Single Judge; and Denham's application for leave to appeal against sentence has been referred to the full court by the Registrar.
4. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence.
5. We grant leave to appeal against conviction and consider the application for leave to appeal against sentence later in this judgment.
6. There were a number of co-accused, but at this stage it is only necessary to refer some of these defendants and the charges to which they pleaded guilty. We do so by reference to the trial indictment.
7. Robin Hollyson pleaded guilty to three charges of Conspiracy to Rape a Child (counts 1, 2 and 4), and Christopher Knight pleaded guilty to two charges of Conspiracy to Rape a Child (counts 1 and 2). Two other defendants also figure in the narrative: Matthew Lisk and David Harsley.
8. The charges reflected offending by a number of men who had an interest in the sexual abuse of young children.
9. A baby boy (T) was one of the victims of this abuse. T lived with his parents in Luton, in a house next door to Hollyson. His parents were friends of Hollyson; and they had made him a godparent of T. Although they knew that Hollyson been to prison, he had not told them that this was in connection with downloading images of children. They trusted him and were happy for him to babysit T when the need arose.
10. Between December 2013 and January 2014, Hollyson raped T for the first time by inserting his penis into the child's mouth, at a time when he had been trusted to look after him. He filmed the rape, broadcast it and sent it to others. He pleaded guilty to the offence of Rape, and the taking and distributing of a video showing the commission of the offence. The film was recovered from Denham's computer.
11. Count 1/1A of the trial indictment related to a plan by Hollyson to invite others to go to Luton on another occasion when he would have sole charge of T, during which T would be sexually abused. This was due to take place on 17 January; and the Prosecution case was that the plan only failed because Hollyson was unexpectedly detained in Hospital on 17 January, having been admitted on the previous day for a prearranged operation. But for this fact, and the fact that T's father had unexpectedly returned home on 15 January, the abuse would have taken place. The Prosecution produced records of Skype and other chat logs which showed graphic discussion about the anticipated abuse of T between the alleged conspirators, although no particular time or place was mentioned. Although Knight and Denham had met in London on 17 January, they did not communicate electronically between 7 January and 4 February. Denham never met T; and the Skype chat between Denham and Hollyson contained regrets that they had not met on 17 January. Hollyson and Knight both pleaded guilty to the count 1 conspiracy.
12. Following his arrest in September 2014, Denham was interviewed and asked about the electronic communication. He explained that his internet name (which might be said to demonstrate an unequivocal interest in abuse of very young children) was used to get attention from other online users. He said that he fantasised about such abuse, but that his fantasies never extended to the 'real world.' Denham's defence at trial was that the Skype chat was simply masturbatory fantasy. When discussing the abuse of infants and children he became aroused and masturbated, along with others. However, he did not think that there was any real plan to rape T, whom he had never met, never seen and did not know had been abused at this point.
13. The issue for the Jury on counts 1 and 1A, was whether Denham joined in the agreement to rape or abuse T and 'got cold feet' (as the prosecution alleged), or whether (as the defence alleged) he had never been party to the conspiracy to abuse T, and had simply engaged in fantasy chat.
14. Count 2 charged Stansfield of a conspiracy between 1 and 6 February 2014 with others, including Hollyson and Knight, to rape T. As we have noted, Hollyson and Knight both pleaded guilty to this count.
15. The charge related to an incident that occurred on 5 February 2014. Recovered chat logs showed that a few days before this date Hollyson communicated to Denham that he would have access to T on the morning of 5 February and that he could attend to abuse T with Knight. In fact, Denham was unable to get to Luton on 5 February. However, cell site and automatic number plate recognition (ANPR) evidence showed that Stansfield left his home in Portsmouth at about 05.45 and travelled to Luton.
16. Stansfield explained that he had been invited to Luton at short notice by Knight; and that Knight had told him that there would be a 'free area' where there would be 'a party'. His understanding was that indecent images would be shown and shared, and masturbation would take place. He was given a postcode for his satnav and was told that Knight would meet him, and that they would go on to the 'free area' together. The evidence showed that as Stansfield was travelling to Luton from Portsmouth, Knight was travelling to Luton from Manchester. Stansfield arrived at 07.45, but Knight was delayed and did not arrive until 09.30. In the intervening 90 minute period there was frequent telephone contact between Knight and Stansfield, and between Knight and Hollyson. Stansfield's case was that after arriving at the designated location in Luton, he waited for Knight and that by the time he had arrived Knight had learnt that the 'host' no longer had a 'free house'. He and Knight had then had coffee together and he had returned to Portsmouth.
17. In the months that followed it was accepted that T had been abused by Hollyson, Knight and others. Although Stansfield's mobile phone never returned to Luton, the evidence showed that he had viewed online images of T being abused.
18. Count 4 charged Stansfield between 1 July and 9 August 2014 of a further conspiracy with others, including Hollyson, to rape T. Hollyson pleaded guilty to this offence.
19. The Prosecution case on count 4 was that the abuse of T took place on-line using 'Skype Chat' and the TOR internet messaging service. Skype chat logs showed that Stansfield was in contact with Hollyson and, on 28 July, in a clear reference to T, asked whether there was 'any chance of seeing him soon.' Hollyson replied that 8 August was a possibility. The conversation then turned to a discussion about the possibility of group abuse on 8 August, with Stansfield suggesting that he might invite others and Hollyson encouraging him to do so. The evidence showed that over the following 7 or 8 days, Stansfield was inviting a number of people to Luton on 8 August, and it is accepted on Stansfield's behalf that the 'plan' was for T to be abused on that date. Denham was one of those with whom Stansfield was in contact.
20. On the morning of 8 August, Stansfield sent a message to Hollyson telling him that his car had broken down the previous evening, and that the AA had told him it could not be used for a long drive. This was untrue. In fact, he was not even a member of the AA. There was an issue as to how this should be regarded by the jury.
21. The Crown case was that there was a conspiracy from which Stansfield had withdrawn. Stansfield's case was that he had never intended that T should be raped. His approach to Hollyson was to ingratiate himself and his approach to others was not genuine. The defence case was that he obtained sexual gratification from the fantasy of pretending to carry out abuse and from the fact that others thought he was genuine.
22. One of the issues which the Judge had to consider was whether the Prosecution should be allowed to rely on the guilty pleas of Hollyson (to counts 1, 2 and 4) and of Knight (to counts 1 and 2); and his ruling that the Prosecution was so entitled gives rise to the first ground of appeal.

Ground 1 (Denham and Stansfield)

23. The Prosecution relied on the provisions of s.74 of the Police and Criminal Evidence Act 1984 ('PACE')

(1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom … shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.

(2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom … he shall be taken to have committed the offence unless the contrary is proved.

24. Section 78 of PACE provides for the exclusion of evidence where its admission would be unfair.

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

25. Mr Shellard and Mr Perry submitted to the trial judge that there was clear authority that s.74 of PACE should be used sparingly, particularly in cases where a joint offence is being alleged, such as conspiracy. They submitted that where the evidence which the Prosecution sought to be put before the Jury under s.74 by necessary inference imported the complicity of a defendant who was standing trial, then the evidence should be excluded under s.78. The judge rejected those submissions.
26. Mr Shellard argued that Denham had advanced a defence of fantasy, in circumstances where there was no completed offence and where the evidence against him relied on conversations with those who had pleaded guilty to the conspiracy. The jury had to consider a closely confined issue: whether Denham was part of this conspiracy. The judge's ruling made a challenge to the existence of a conspiracy impossible, and not merely difficult.
27. Mr Perry advanced a similar argument in relation to count 4 where likewise there was no completed offence. He further argued that it was possible that the guilty pleas of Hollyson and Knight may have been entered for tactical reasons, so as to avoid a trial in circumstances where convictions on these two particular counts were unlikely to affect the overall sentence. He complained that the Prosecution did not call Hollyson and Knight, and therefore Stansfield's defence had no opportunity to cross examine on these points.
28. On count 2 it was not possible to explore the possibility that the intention might have been to have abused T, rather than to rape him. On count 4 it was not possible to explore the possibility that Hollyson did not in fact take Stansfield seriously and that he (Hollyson) never intended rape or other abuse to take place on 8 August. The issue in relation to count 4 was not merely whether Stansfield had joined the conspiracy with the necessary intent. The 'plan', which at face value existed, was initiated by Stansfield; and it followed that it was not a case in which the jury were considering whether he joined a concluded agreement. In these circumstances, there was a realistic chance that the jury might conclude that Hollyson's plea connoted guilt on the part of Stansfield; and insufficient regard to the subtle but significant point that if one party (even the instigator of a plan) lacks the intent to execute the conspiracy he is not guilty.
29. These were points that were repeated on appeal in support of ground 1; but before considering them, it is necessary to see how the trial judge dealt with them.
30. In a thorough and careful ruling, giving reasons for his earlier decision to admit the pleas of Hollyson and Knight, the judge referred to a number of decisions which provided guidance on the interaction of sections 74 and 78 of PACE in conspiracy cases: Curry [1988] Crim L R 527; Kempster [1990] 90 Cr. App 14; Derek Nathan Smith [2007] EWCA Crim 2105 and FBMK [2012] EWCA Crim 2438.
31. He accepted that s.74 should not be used to allow evidence to go before a jury which is irrelevant, inadmissible, prejudicial or unfair simply because it was convenient for the jury 'to have the whole picture'. He directed himself in accordance with the law as set out in Derek Nathan Smith at [20].

It remains a proper approach, we are satisfied, that where there was no real question that the offence was committed by someone and the real issue was whether the present defendant was a party or not, the evidence of pleas of guilty is likely to be perfectly fair, though each case depends on its own facts.

32. He also noted the court's qualification to that general proposition, namely:

However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off issues which the jury has to try.'

33. The judge adopted that approach at p.9D of his ruling.

If the admission of the guilty pleas of others effectively shuts down a defence, or a particular line of defence, or makes it a practical impossibility to defend the case, then the pleas must not, of course, be admitted.

34. Having reviewed the authorities the judge concluded (at 10F):

Section 74 is to be approached with caution and it is not to be used as a matter of routine. It is not to be used as a smuggling device to place evidence before the jury which it would be convenient for the jury to hear. The paradigm notions to be applied will be those of relevance and then fairness.

35. We entirely agree with this approach.
36. He then went on to deal with the instant case (at 10G):

On the facts of the case, it seemed to me that there was no real question but that the offences were committed by someone, and the real issue was whether the present defendants were party to the concluded agreements, with the requisite intent, or not. I found, on the current facts, evidence of the pleas of guilty of others was likely to be perfectly fair, though of course that could alter if the evidence at trial was at variance with that predicted by the witness statements and exhibits, or if defences emerged divergent from those in the Defence Case Statements.

I reminded myself from the authorities that it also remains true that such evidence may well be unfair, if the issues are such that this evidence would close off the issues which the jury has to try. But it means just that, to close off, not to make more difficult.

37. With proper, early directions in respect of the elements of conspiracy, combined with written direction the judge was satisfied that it would be fair and proper to admit the evidence.
38. The essential questions raised by this ground of appeal are: first, whether the judge's approach was wrong in law; and secondly, if not, whether his decision to admit the evidence was nevertheless a decision which can be properly impugned on appeal?
39. On the first point we are clear that he correctly stated the law which should be applied. The evidence should be excluded if its admission were unfair in the particular circumstances. The admission of prosecution evidence will often raise difficulties for a defence; but it is unfairness to, and not difficulties for, the defence which is the key.
40. On the second point, the decision whether to admit the evidence, although often described as the exercise of discretion, might better be described as the exercise of a judgment in which a balance has to be struck on the issue of fairness. We mention this because, if it were a pure matter of discretion the basis of challenge to a judge's decision might be unduly confined. Ultimately the decision whether to admit evidence in these circumstances is either right or wrong, although whether the conviction is safe is another matter. Nevertheless, as the judge noted, correctly in our view, such decisions will necessarily be fact sensitive, and the judge will be in a particularly good position to assess the issue of fairness in the context of the dynamics of the trial process.
41. In our view, the admission of the evidence of Hollyson's and Knight's pleas neither shut off the defences which had been raised in the defence statements, nor close down the very issue the jury had to consider. It was not the defence of either appellant that there were no conspiracies to abuse T, their cases were that they were not a party to such conspiracies, either because they had not joined in the particular conspiracy, or because they had a different intent as to what the plan was to achieve, or because the whole plan was, in their mind, simply a masturbatory fantasy. In our view the challenge to the judge's decision to admit this evidence fails.
42. We would add that the jury's verdicts on counts 1 and 1A plainly shows that it was able to distinguish the intent of Hollyson and Knight on the one hand, and the intent of Denham on the other.

Ground 2 (Stansfield)

43. At the conclusion of the Prosecution case Mr Perry submitted that there was no case to answer against Stansfield in respect of Count 2. It was conceded that it was open to the jury to reject the appellant's evidence that he went to Luton on the 5 February 2014 to masturbate and view indecent images, and that it could conclude that he intended some form of abuse against T was to take place (and therefore that count 3, conspiring to sexually assault a child under the age of 13, could be left to the jury). However, it was submitted that the jury could not conclude that he necessarily intended that oral rape rather than other forms of abuse would occur.
44. At Mr Perry's invitation, the judge considered the case of Goddard and Fallick [2012] EWCA Crim 1756, and noted that the evidence against Stansfield on count 2 was limited. He regarded it as 'pivotal' to the question whether or not there was a case to answer that there was 'backwards referable evidence of intent'. In his view, the evidence of Stansfield's participation in Skype and other conversations on 4 and 5 August 2014 was sufficient evidence on which a reasonable jury, properly directed, could find that there was a conspiracy to rape T, rather than some other form of abuse on 5 February 2014. The judge added, 'It is only by reference to those conversations that I consider that there would be sufficient evidence.'
45. In support of ground 2, Mr Perry submitted that the evidence of Stansfield's communications with various known and unknown Skype and chat line users on 4 and 5 August was an insufficient basis for a jury forming a view about his intent 6 months earlier. He submitted that, although these communications appeared to show an intent to rape, they were at least as consistent with fantasy and a desire to obtain kudos among the online community of paedophiles, where being regarded as 'genuine' was important and where sexual gratification was derived from the thought of being taken seriously as a paedophile. He submitted that they were at least as consistent with him being a boastful and lying fantasist. Furthermore, and quite apart from the genuineness or otherwise of the communications on 4 and 5 August, none of them contained any detail which would enable the reader to relate them to 5 February.
46. Mr Davies submitted that the prosecution had accepted that some of the communications of 4 and 5 August 2014 could have been fantasies, but the jury was entitled to consider this material and form its own view about it, when considering what Stansfield had intended in February 2014 when he had driven from the south coast to Luton at a time when he believed Hollyson had sole charge of T.
47. We accept Mr Davies's submission. We do not intend to set out in this judgment the nature of the exchanges to which Stansfield was a party on 4 and 5 August 2014. It is sufficient to say that there were communications by him which were, at the very least, consistent with an intent to rape T. Whether that intention had changed since 5 February was, as the judge concluded, a matter for the jury to consider.
48. The court in Goddard and Fallick was faced with a different situation, described at [40]:

We have concluded that no reasonable jury, taking the prosecution evidence at its highest, could surely infer that the defendants intended to carry out the agreement. The evidence is all equivocal; it is as consistent with fantasy as with an intent to carry out the plan. It is particularly striking that these men never met at any stage, either before or after the text exchange nor did they even suggest meeting to discuss the plan further. Nor is there any evidence that they took any steps to advance the plan beyond suggesting. 'Friday night'. No place or time or other practical details are identified. Nothing at all happened after the exchange of text messages. We appreciate that their silence in interviews and failure to mention that this was all a fantasy can be taken into account. But that is of very little weight given the other facts or rather lack of them.

49. Here there was the evidence which we have set out above and which was identified by Mr Davies, there was discussion of time and place, with descriptions of practical details and there was the round trip to Luton and back. In our view, it was plainly open to a jury to conclude from the totality of the prosecution evidence that Stansfield had an intent which went significantly beyond the admitted masturbatory.
50. For these reasons we dismiss Stansfield's second ground of appeal; and both Denham and Stansfield's appeal against conviction.

Application for leave to appeal against sentence (Denham)

51. On 27 February 2015 Denham had pleaded guilty to a number of offences: count 5 (Conspiracy to engage in Sexual Activity in the presence of a Child), count 2 (Possession of Indecent Photographs), count 22 (Making Indecent Images of a Child), count 23 (Distributing Indecent Images of a Child) and count 24 (Possession of Extreme Pornography).
52. On 11 September 2015 he was sentenced for these offences as well as the offence of which he had been convicted by the jury: count 1A (Conspiracy to Sexually Assault a Child).
53. The sentences which were passed were: on count 5, a 12 year extended sentence (comprising of a determinate term of 8 years and an extended licence period of 4 years); on count 21, no separate penalty; on count 22, 16 months imprisonment concurrent; on count 23 a 12 year extended sentence (comprising of a determinate term of 8 years and an extended licence period of 4 years) concurrent; on count 24, 6 months imprisonment concurrent and on count 1A, a 12 year extended sentence (comprising of a determinate term of 8 years and an extended licence period of 4 years). An overall sentence of 12 years, comprising a 8 year custodial term and a 4 years period of extended licence.
54. On 5 November 2015 Denham's case was relisted before Judge Lambert pursuant to s.155 of the Power of Criminal Courts (Sentencing) Act 2000. An error in the sentences on counts 5 and 23 was identified. The sentence on each count had exceeded the maximum sentence for the offences. Accordingly, the judge varied the sentences. Count 5 was varied to a term of 2 years imprisonment, concurrent, and the sentence on Count 23 was varied to 4 years imprisonment concurrent. The sentence for the offence of which he was convicted, count 1A, was unaffected.
55. The grounds of appeal against sentence are confined. It is not argued that an overall sentence of 8 years custodial term gives rise to properly arguable grounds of appeal. Nor is it argued that the decision to pass an extended sentence gives rise to properly arguable grounds of appeal. Mr Shellard sought to argue that a sentence of 8 years on count 1A was manifestly excessive and that the overall sentence for that sentence should have been a term of 4 years. The sentence of 8 years should have been made up by passing sentences of 4 years each on count 5 and 23 to be served concurrently with each other, but consecutively to the term passed on count 1A. Such a course would have had a beneficial effect, so far as Denham is concerned, in terms of his release date.
56. We are entirely unpersuaded by this argument which, incidentally, involves Mr Shellard arguing that the sentence passed on his client in respect of count 5 should be doubled and submitting that the court should approach sentencing on the basis of the most favourable release regime from the offenders point of view. Looking at the overall sentence passed for this offending we are entirely unpersuaded that the extended sentence of 12 years for the overall level of his offending is either wrong in principle or manifestly excessive.
57. Accordingly Denham's application for leave to appeal his sentence is refused.