England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
On appeal from Manchester Crown Court
(Her Honour Judge Manley)

		Royal Courts of Justice The Strand London WC2A 2LL
		25th July 2024

LORD JUSTICE SINGH: I shall ask Mrs Justice Cutts to give the judgment of the court.

MRS JUSTICE CUTTS:

1. This is a renewed application for an extension of time of approximately two years in which to apply for leave to appeal against conviction, and of approximately two years and four months in which to apply for leave to appeal against sentence, in each case following refusal by the single judge.
2. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences which are the subject of this application. No matter relating to either of the victims of the offending shall during their lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offences. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. We have anonymised the names of the victims accordingly.
3. On 8 June 2021, following a trial in the Crown Court at Manchester, the applicant was convicted of 22 sexual offences perpetrated on two children, to whom we will refer as "C1" and "C2". No verdicts were taken on a further four offences indicted as alternative counts. Counts 1 to 19 concerned C1; counts 20 to 26 concerned C2.
4. On 21 January 2021, the applicant was sentenced to a total term of 25 years' imprisonment, made up in the following way. In relation to C1, he was sentenced to a total term of 20 years' imprisonment, all sentences running concurrently inter se, as follows: on each of counts 1 to 4 (indecent assault), four years' imprisonment; on each of counts 5 and 21 (indecent assault), five years' imprisonment; on each of counts 6, 9, 10, 17, 18 and 19 (rape), 20 years' imprisonment; on each of counts 11, 12, 13 and 14 (sexual activity with a child), ten years' imprisonment; and on each of counts 15 and 16 (causing a child to engage in sexual activity), six years' imprisonment. In relation to C2, the applicant was sentenced to a total term of five years' imprisonment, made up as follows: on count 20 (indecent assault), two years' imprisonment; on count 23 (indecent assault), five years' imprisonment; and on each of counts 25 and 26 (causing a child to watch a sexual act), three years' imprisonment. These sentences were concurrent inter se but consecutive to the sentence of 20 years' imprisonment on counts 1 to 16. Ancillary orders were made.
5. The mother of the two children was convicted of two counts of cruelty to a child and sentenced to a suspended sentence order.
6. In applying for the extension of time, the applicant states that his barrister did not seem to have his best interests in mind when dealing with the case and with the appeal. He received counsel's negative advice on appeal against conviction 24 days after the conviction. Thereafter, the delay is attributable to arranging through his solicitors for his friend to have access to his 997 page file on the digital case system and to consider its contents, as a result of which it became apparent that counsel had not raised certain matters at trial or requested evidence on the applicant's behalf. When he received the refusal of the single judge on his conviction application, he did not realise that he was also asked for information on his barrister.
7. When the refusal of his application for leave to appeal against sentence was received, his barrister told him that there was nothing they could do. It was only when his friend contacted the Court of Appeal Office that he discovered the application was not completed. That was when his friend asked for the paperwork to be sent to the applicant for continuation of the appeal.
8. These renewed applications are considerably out of time, and we do not consider the reasons advanced by the applicant to provide sufficient explanation for such lengthy delays. We have nonetheless considered the applications for leave to appeal against both conviction and sentence on their merits.
9. The facts are set out in detail in the Court of Appeal Summary, and we need not repeat them in detail in this judgment.
10. In January 2018, C1 and C2, who are sisters, reported to the police that they had been sexually abused by the applicant when they were children. The abuse against C1 occurred between August 2002 and January 2006, when she was aged 12 to 16 years. The abuse against C2 occurred between August 2002 and March 2007, when she was aged 10 to 14 years.
11. The background of the case was that in July 1991 the applicant was convicted of murder and sentenced to life imprisonment. Whilst serving his sentence, he was introduced to the complainants' mother who began to visit him in prison. On occasions, she took her four daughters with her.
12. In August 2002, as preparation for his release on licence, the applicant was permitted to undertake home visits. He would stay with his mother, but he also spent time at the complainants' family home.
13. He was released on licence in 2003 and moved in with the family in 2004. He effectively became stepfather to the children. He moved out in 2006 when his relationship with their mother came to an end.
14. The prosecution case was that the sexual abuse of C1 and C2 began during the home visits and continued after the applicant moved in. It was set against a background of manipulation and grooming behaviours. Threats were made to prevent the abuse being reported. The threats were more believable to both children as they knew that the applicant had been in prison for murder.
15. The defence case was that the allegations were concocted and that there was collusion between the prosecution witnesses.
16. The issue for the jury, therefore, was whether the sexual abuse took place.
17. The applicant's murder conviction was adduced in the trial to support the timeline and the explanation by the complainants for failing to report the allegations of abuse.
18. The defence at trial had objected to the admissibility of this conviction. The applicant's counsel then instructed conceded that the fact that the applicant was a serving prisoner shortly before the beginning of the indictment period was important explanatory evidence but submitted that the nature of the conviction should not be adduced.
19. The judge ruled that the conviction was highly relevant to an important matter in issue in the case, namely the effect that the information had on the complainants. To refuse the application would be to deny the prosecution the ability to present their case properly. A careful direction to the jury would cure any prejudice to the applicant.
20. Before the conviction was adduced, and again in her summing up, the judge directed the jury that they had heard about the murder conviction because both complainants knew about it and the prosecution submitted that this knowledge made them afraid of what the applicant might do if they told anyone about the sexual abuse. She said that it was vital that the jury did not allow the fact of the conviction unfairly to prejudice them about the applicant. The offence of murder was different in that it involved a man and there was no sexual element to it. The conviction did not mean that the applicant must have committed the offences on the indictment, which were wholly different in nature.

The Renewed Application: Conviction

21. The applicant makes many and various complaints about the conduct of his trial. These include:

(1) That his murder conviction should not have been adduced. His counsel should not have conceded that the fact that he was a serving prisoner was important explanatory evidence;

(2) That his counsel failed properly to represent him. In particular, criticism is made that he failed to chase up disclosure respects, failed to raise inconsistencies contained in the available served material, agreed to inappropriate edits to the complainants' Achieving Best Evidence interviews, and agreed that the statements of the recent complaint witnesses could be read without the consent of the applicant;

(3) That the judge made an inappropriate comment to the prosecution relating to how compelling the summing up was going to be on their behalf;

(4) That the officer in the case remained in court throughout, even though she was a witness in the case;

(5) That requested items were never disclosed;

(6) That there were issues around the charges, conviction and sentence of the co-accused, which demonstrated that the court did all it could not to send her to prison; and

(7) That there were issues relating to the charging decisions, charges and indictment.

Conclusion: Conviction

22. We find each of these grounds, both individually and collectively, to be wholly without merit. The murder conviction was plainly admissible for the reasons given by the judge. She had properly directed the jury as to its relevance and permitted use, both before it was adduced and during her summing up which was impeccable.
23. By reason of his criticism of trial counsel, the applicant has waived legal professional privilege. We have the benefit of an account concerning the trial from his counsel and a Respondent's Notice from the prosecution. These make it abundantly clear that the applicant was well-represented throughout his trial. Decisions about which witnesses could be read were properly made and in consultation with the applicant. ABE edits were appropriately made to excise prejudicial and irrelevant material. Full disclosure was made by the prosecution and discussed with the applicant. Inconsistencies of sufficient weight were drawn to the jury's attention.
24. The other grounds are unmeritorious. In particular, the court recordings do not show any comment by the judge, as alleged. There was compelling evidence against the applicant, whose account was rejected by the jury. His convictions are far from arguably unsafe.

The Renewed Application: Sentence

25. The judge approached the sentence by sentencing on count 6 as the lead offence to reflect the totality of the offending against C1, with all other sentences for offending involving her to run concurrently. In relation to C2, she considered that there had to be a consecutive sentence to reflect the fact that the applicant had moved on to another child and had abused her. The sentence was set lower than would otherwise have been the case for reasons of totality.
26. In grounds of appeal against sentence, drafted and submitted in time by trial counsel, the applicant sought leave to appeal against his sentence on the ground of totality. It was argued that the sentences imposed should all have been concurrent, or, if consecutive to reflect the two complainants, reduced to arrive at a just and proportionate sentence. It was further argued that the judge should have deducted the 31 months that the applicant spent in custody before his trial from the overall term imposed. This was particularly so given that 16 months of that term were during the Covid pandemic and therefore in difficult conditions.
27. We have considered these grounds but find no merit in them. We agree with the single judge that, given the gravity of the applicant's persistent offending and its impact on his victims, it is not arguable that the judge failed to have sufficient regard to the principle of totality, or that the overall sentence was manifestly excessive. The sentence of 25 years' imprisonment was one anticipated by and allowed for in the sentencing guidelines. The trial judge was best placed to determine the appropriate sentence. There was every reason to make the sentences for the offending against C2 consecutive to those for the offending against C1 in circumstances where the applicant moved from abusing C1 to doing the same to C2 in the same environment. The judge specifically allowed for totality by reducing the sentences in relation to C2.
28. The offences were all committed when the applicant was on life licence. As he was recalled on his licence, he was not entitled to have the 31 months served on remand before trial for the sexual offences taken into account.
29. We agree with the single judge that, given the circumstances of the applicant's offending and the fact that he breached the terms of his licence from the outset, there was no good reason for the judge to have taken into account time spent in custody on remand.
30. It follows that, even without the applications for lengthy extensions of time in this case, we would not have granted leave to appeal against either conviction or sentence.
31. We therefore refuse the applications for extensions of time as to grant them would serve no useful purpose. In any event, as we have said, we do not consider there to be any good reason for the substantial delays in this case.