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London
WC2A 2LL
ON APPEAL FROM THE CROWN COURT AT LUTON
(HIS HONOUR JUDGE QURESHI)
[40AD1512321]
Case No 2023/03056/B2Friday 6 December 2024
NCN: [2024] EWCA Crim 1733
B e f o r e:
LORD JUSTICE JEREMY BAKER
MR JUSTICE LAVENDER
SIR NIGEL DAVIS
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R E X
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BARRY TITCHENER
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Computer Aided Transcription of Epiq Europe Ltd,
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Non-Counsel Application
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A P P R O V E D J U D G M E N T
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LORD JUSTICE JEREMY BAKER: I shall ask Mr Justice Lavender to give the judgment of the court.
MR JUSTICE LAVENDER:
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, no matter relating to the victim of the applicant's offence, whom we will call "F", shall during F's lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence.
The applicant renews his application, following refusal by the single judge, for leave to appeal against his conviction on 4 August 2023 in the Crown Court at Luton on one count of causing or inciting a child under 13 to engage in sexual activity.
The allegation against the applicant was that when F was aged 11 or 12 he went into her bedroom and made her masturbate him. It was alleged that this took place on an occasion when F was staying at her aunt's house and had had an argument with a cousin about watching the film Titanic.
There are three proposed grounds of appeal:
The judge was wrong to admit a hearsay statement made by F's aunt, "S".
The judge was wrong, when directing the jury about the hearsay statement, to inform them that the Crown had applied to put parts of the statement before the jury as hearsay and the defence had opposed it, but that he had ruled against the defence.
The judge was wrong at the conclusion of the applicant's cross-examination to suggest to counsel in the presence of the jury that there was something else about which the Crown needed to cross-examine the applicant.
In refusing leave to appeal, the single judge said as follows:
"As to ground 1, the admission of a small part of [S's witness statement] … (that witness being abroad and arguably avoiding appearing in court), was not prejudicial to your defence. It was a very small part that was adduced as to an alleged quarrel at the house at the time and whether [F's] mother was there at the time. Although she could not be cross-examined the Recorder allowed the provision to the jury of a detailed list of (16) questions which the defence would have wished to ask the witness. The only contentious part of [S's] evidence admitted in evidence was about there having been the argument about the film Titanic involving the victim and [S's] son, and whether [F's] mother … was present – which the mother herself did not recall. She gave live evidence and your counsel was able to cross-examine her on the inconsistency – so the absence of [S] was much mitigated in fact at trial.
Grounds 2 and 3 Judicial comments. It would have been better if the Recorder had not told the jury that he had ruled the hearsay evidence admissible following a contested application but in the context of the whole case the comment would have had no relevance and/or materiality for the jury, even in combination with other comments/directions as you suggest. Similarly the intervention regarding questioning by the prosecution in relation to a further piece of bad character evidence which was in any event not done overtly by reference to a piece of named evidence. This was a single line, just before the jury were in fact sent out and the matter canvassed without them. No applications were made at the time by your representative nor submissions made as to unfairness. Given the bare mention of the issues objected to in front of the jury, in the context of the case and all the evidence this was not arguably prejudicial or otherwise unfair. Further in light of the detailed summing up as to fact and law and in the context of the strength of the evidence generally, these occasions were not prominent nor arguably unfair."
We have considered afresh all of the relevant documents and the proposed grounds of appeal, but we agree with the single judge that, for the reasons which she gave, it is not arguable that the applicant's conviction was unsafe.
Accordingly, we refuse the renewed application.
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