R v FCD

This is a hearing of a renewed application for leave to appeal against conviction. The applicant's grounds raise issues both about conviction and sentence, so we have considered all the grounds. The applicant also needs an extension of time of some 163 days to seek leave to appeal against conviction. The reasons given for the extension of time are that the barrister had advised that there were no grounds and that the applicant had difficulties in prison in obtaining assistance. We have looked at the grounds to see if it is in the interests of justice to extend time.

So far as the proceedings were concerned, on 20 March 2023, in the Crown Court at Lincoln before HHJ House KC and a jury, the applicant, who was born in 1980 and is therefore now some 45 years old, was convicted of two counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003, one count of engaging in sexual activity in the presence of a child, contrary to section 11(1) of the Sexual Offences Act 2003, three counts of sexual activity with a child family member, contrary to section 25(1) of the Sexual Offences Act 2003 (counts 7 to 9) and two counts of sexual assault against a separate child under 13, contrary to section 7(1) of the Sexual Offences Act 2003.

The victims of the offending have the benefit of life-long anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. It is necessary to anonymise the applicant's name in order to avoid the inadvertent identification of the complainants.

It is not necessary to go into great detail about the offending save to say that the prosecution case was that both complainants were daughters of the applicant and lived in the same house as him, their mother and another sibling. The offending was alleged to have taken place against the first complainant when she was aged 6 to 8 and that consisted of him sitting her on his groin and he rubbing his genitals against her. That was alleged to have occurred on at least 10 more times between the ages of 6 to 13 on count 2, and at least six more times when she was aged 13 to 15. Count 5 related to him masturbating in her presence, when she was aged between 6 and 8 and counts 8 and 9 were digital penetration of her vagina when she was aged 13 to 15 on one occasion and then two further separate occasions. Counts 10 and 11 related to the rubbing of his genitals against the second complainant's genitals when she was aged 10 to 13.

At trial, the defence case was that the first complainant's accounts were fabricated, and that the second complainant had simply decided to back up her sister and her account was tainted by knowledge of what her sister had alleged.

There were a number of grounds against conviction. Overall the applicant maintains that he did not have a fair trial. His barrister had been changed late and he says he was not told until 2 weeks before the trial that he did not have a barrister and he wants to know why he lost his first barrister. In fact it seems there had been an adjournment of the first trial. The trial was re-listed without reference to the convenience of counsel, as is the normal practice. New counsel were instructed. It is apparent from the responses that we have seen after a waiver of privilege was provided that both solicitors and counsel had satisfied themselves that the new barrister was capable of dealing with this case and indeed prosecution counsel in the Respondent Notice described him as being “very experienced” and that he had had plenty of time to prepare for cross-examination.

Further complaint is made that the jury could not see a police video of the second complainant's statement because she was mentally ill. In fact the ABE interview was played to the jury and there was no reference in the summing-up to her being mentally ill. There was complaint that there was insufficient time for the barrister to study the case, which has already been addressed, and there was complaint that the witnesses contradicted each other and that is a well-known feature of any criminal trial, where there will inevitably be inconsistencies between truthful and otherwise reliable witnesses. The real question being whether or not the evidence should be accepted.

There was a further complaint that a secretary working for the criminal defence firm of solicitors had a conflict of interest. That was because that secretary had gone on holiday with her daughter who was competing in a dance competition. There was a witness (a dance teacher) to whom a complaint had been made by the second complainant who had attended the same competition overseas. It is not apparent there was any discussion or indeed realisation that there was this indirect contact between the secretary and the witness, and there is nothing to suggest that the conviction was unsafe.

Finally, there was a complaint made that the judge was biased. We have read the summing-up and we can see no evidence of bias against either prosecution or, most relevantly for these purposes, defence.

It is apparent that there are applications to adduce fresh evidence and continuing complaints about the fairness of representation at the trial. It was said that family members wanted to give evidence in accordance with statements which have been uploaded to the Digital Case System. It appears that the family is now split into those who now support the applicant and those who support the complainants. There are even differences between the siblings. All that said and having looked at all the material, we are unable to detect any justiciable ground of appeal against conviction. For those reasons, we refuse the application for an extension of time and refuse leave to appeal against conviction.

So far as the sentence is concerned, complaint was made about the length of the sentence and the fact that the judge had failed to take into account character references which had been deployed. In fact, it is apparent that the judge took into account the applicant's previous good character but in accordance with the offence-specific guideline did not give that undue weight. The sentence of 9 years for the offending against the two complainants in their home cannot sensibly be described as either wrong in principle or manifestly excessive. Notwithstanding all the complaints that the applicant has made, which we have considered, and the applicant's sense of frustration and injustice, we are unable to determine any grounds of appeal against sentence.