R v MAK

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.

The applicant is now 43. On 18 August 2023, in the Crown Court at Birmingham, he was convicted of a variety of sexual offences against his stepdaughter ("the complainant"). On 15 December 2023, he was sentenced by HHJ Henderson ("the judge") to a total of 7 years' imprisonment.

He renews his application for an extension of time (143 days) for leave to appeal against conviction. He applies for an extension of time of 40 days in which to renew his application for an extension of time of 31 days for leave to appeal against sentence and for a representation order. All those applications were refused by the single judge. In addition, the applicant applies for leave to adduce fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968. He seeks to rely on the evidence of four witnesses who have produced witness statements.

The complainant was, as we have said, the applicant's stepdaughter. She was a vulnerable child with a mild learning disorder which impaired her intellectual functions. She suffers from Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder.

When the complainant was about 12, the applicant approached her from behind and told her she looked like her mother. He put his arms round her, touched her breasts and rubbed her groin over her clothing. This happened on many occasions within the toy room at the house when the complainant was away from her mother or her mother was asleep. Count 3 was a specific count in relation to that offence and count 2 alleged that that offence had occurred on at least five occasions.

There were further instances of sexual abuse which took place after the complainant had gone to bed. The applicant used to go into the bedroom that the complainant shared with two of her half-siblings. He approached the complainant in her bed, then having established she was awake, he touched her by putting his hand under her nightwear and rubbed her vagina over her knickers. Count 4 was a single-incident count relating to this offending, although the prosecution case was that it happened regularly.

As the abuse in the bedroom progressed the applicant touched the complainant on her underwear, then moved her underwear to one side and put his hand directly onto her vagina and put his finger into her vagina (count 1). The complainant found this painful and later saw blood in her underwear. The abuse ended in September 2016 when the complainant was 14 when, for reasons unconnected to any allegation in this case, the complainant and her half-siblings were taken into care.

At the trial the principal witness was the complainant. There was evidence from GA (her natural father's partner) that the complainant had complained to her about the touching. There was also evidence from a social worker and her foster carer about when and how the complainant started to disclose the abuse. In August 2018 she made a complaint to the police.

The defence case was one of denial. When asked if he had any explanation for the allegations, the applicant said it was "to get him out of the picture". The applicant called no witnesses in his defence.

The application for permission to appeal against conviction is made on four grounds. The first is that the ABE interview of the complainant was edited by the prosecution. The second is that the appropriate adult at the ABE interview was the social worker, Tina Williams, who was a witness in the case. The third is that the police and his legal representatives failed to take statements from family members who could give fresh evidence. The fourth is that it is said that the complainant has subsequently disclosed that she had lied about the allegations and had been told to make them by her social worker.

In rejecting those proposed grounds the single judge said this:

We respectfully agree with the single judge. The points about the ABE interview and the attendance of the social worker at that interview are incontestably bad for the reasons explained by the single judge and we say no more about them.

The point about further witnesses, and the alleged admission by the complainant, are linked. The four "new" witnesses are all family members. They constitute the applicant's partner, two of his daughters and his brother. Their statements primarily purport to say that they do not believe the complainant’s allegations. Of course, it is of no relevance or probative value whether they believe what the complainant said or not. That was a matter for the jury. Although at least one of the “new” witnesses suggests that the opportunities for the applicant to commit the offences were limited, that evidence is of little probative value since it does not say that there was no opportunity at all. In any event this is not a new point: it was explored during the cross-examination of the complainant at the trial. None of these witnesses are able to provide any specific evidence as to the allegations themselves which the jury found to be proved. They therefore add nothing of any probative value to this case.

In addition, since they are all family members related to the applicant, all four witnesses were plainly available to give evidence at his trial. He could easily have requested them to make statements if that is what he or they wanted to do. That did not happen, and no cogent explanation has been given as to why they were not called at the trial. We note that the applicant has refused to waive privilege in respect of his communications with his former legal team on this (or any other) issue, so it has not been possible for this obvious aspect of the application to be investigated further.

As to the suggestion that the complainant has since retracted her allegations, as the single judge noted, she was spoken to recently and she informed the officer that, although her mother had been putting pressure on her to drop the case so that the applicant could be released, she confirmed the truth of her original complaints.

On this last point, we add that this week the Court received a police report completed by a DC Ben Bryant dated 19 December 2024. That gives more detail about the alleged retraction. It appears that it was in the form of a recording in which the complainant read out words written by one of the applicant's daughters and the recording was then emailed to the Appeals Review Unit by another of the applicant's daughters. The complainant said that she was put under pressure by her mother (still the applicant's partner) because the applicant was phoning her every day from prison saying that he was struggling. The complainant was worried about the consequences of not making the recording. But, importantly, the complainant again confirmed that her original disclosures and the allegations that she made against the applicant were true.

For these reasons therefore, we agree with the single judge. We refuse the renewed application for permission to appeal against conviction.

The judge took count 1 (the digital penetration) as the most serious offence and imposed a term of 7 years in respect of that offence. That term took into account all the other criminal conduct on the part of the applicant. Concurrent sentences of 2 years were therefore imposed on counts 2, 3 and 4. We are in no doubt that that was the correct approach.

The complaints about the sentence of 7 years are that:

The single judge refused the application for permission to appeal against sentence. We agree. As to (a), pre-sentence reports will sometimes recommend a disposal which, on analysis by the sentencing judge, is either unlawful or wholly inappropriate. It would have been quite wrong for the judge to impose a sentence in this case that was anything other than one of immediate custody. As to (b), it is not correct that the judge did not have regard to the applicant's mitigation. He expressly referred to the knock-on effects of the applicant's offending on his family. But as the judge rightly said: "But that is the price, I am afraid, for them as well as you of your offending."

The term of 7 years was neither wrong in principle nor manifestly excessive. The two criticisms of the sentencing exercise are untenable. For those reasons, this renewed application for permission to appeal against sentence is refused.

So far we have not addressed the questions of extensions of time. Lengthy extensions are required in respect of these applications. Since there is nothing in the applications themselves, we refuse the extensions of time as well.