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NCN: [2025] EWCA Crim 1428 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT LEEDS (HHJ MENARY) [13KD0533221] CASE NO 202404445/B1 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE JEREMY BAKER
MR JUSTICE LAVENDER
HER HONOUR JUDGE DE BERTODANO
(Sitting as a Judge of the CACD)
REX
V
EDC
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NON-COUNSEL APPLICATION
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APPROVED JUDGMENT
MR JUSTICE LAVENDER:
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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 their lifetime, be included in any publication if it is likely to lead members of the public to identify them as the complainant in respect of that offence. To prevent such identification, the title to the transcript of this judgment will be anonymised.
Leave to appeal having been refused by the single judge, the applicant renews his application for leave to appeal against his conviction on 18 November 2024 in the Crown Court at Leeds on four counts, namely counts 1, 9 and 11 (rape), contrary to section 1 of the Sexual Offences Act 1956 and count 12 (indecent assault), contrary to section 14 of the Sexual Offences Act 1956.
The case concerned the applicant's alleged sexual abuse of his four stepsisters (whom we will call "S1", "S2", "S3" and "S4") over approximately a decade between 1965 and 1975, when he would have been aged between 14 and 23. S1 was the alleged victim on counts 1 to 8. The applicant was convicted on count 1. Count 2 was an alternative to count 1. He was acquitted on counts 3 to 8.
In ABE video interviews recorded in 2019, S1 said that the applicant raped her repeatedly in the family home in 1965 when he arrived in this country from St. Kitts at the age of 13 and for years thereafter. S1 died before trial. The judge allowed transcripts of her interviews to be read to the jury. Since S1 was dead, evidence of her interviews was admissible pursuant to section 116(1) and (2)(a) of the Criminal Justice Act 2003, but the applicant submitted that inadequate disclosure had been made of matters going to S1's credibility.
The judge conducted avoir dire and gave a ruling in which he said that it seemed to him that any shortcoming in the disclosure process which had been identified was not so serious as to mean that the applicant could not have a fair trial. The jury could still consider issues relating to S1's credibility on the basis of the evidence before them. The judge did not consider that the evidence ought to be excluded under section 78 of the Police and Criminal Evidence Act 1984. There was material available to the jury to make a fair assessment of the weight to attach to the hearsay evidence.
S2 was the alleged victim on count 9, of which the applicant was convicted. She said that she was raped by the applicant in the family home on a number of occasions when she was aged around 3 to 7, which was in 1966 to 1970.
S3 was the alleged victim on count 10. From the age of 10 she lived in a care home, but she said that one night (when she was about 13) she was staying at the family home and was in his sister’s bedroom when the applicant came into the room, got into bed with her and touched her breasts. The applicant contended that, given the lapse of at least 51 years between the alleged offending and the trial, the entire prosecution was an abuse of process, but the judge only acceded to that application in relation to count 10.
In his ruling on this issue the judge said:
"It seems to me however, in relation to the remainder of the counts the defendant is not caused serious prejudice by the absence of the records identified: Other than their assertions of their recollections of how old they were, none of the other complainants detail their account with sufficient specifics to enable the date to be identified if contemporaneous documentation had survived. Furthermore, it seems to me that the issue for the jury to consider in relation to those counts is whether they can be satisfied so they were sure that the allegation occurred, and so the issue of alibi in the true sense is not before them."
S4 was the alleged victim on counts 11 and 12, of which the applicant was convicted. She said that there was a specific incident, when she was 5 or 6, when the applicant made her suck his penis and then raped her vaginally.
The applicant was arrested in March 2021 and answered questions in interview. He denied all of the allegations. He was re-interviewed in April 2022 and handed in a prepared statement, again denying the allegations. The applicant gave evidence, yet again denying all of the allegations. His case was that they were untrue and had been fabricated by the complainants. Their motive, he said, probably concerned a plot of land in St. Kitts which was his, but which they wanted for themselves. The defence pointed to inconsistencies in the evidence, lack of detail and alleged lack of opportunity, especially as he said that he was often living away from the family home during the relevant period.
The proposed grounds of appeal are that the judge was wrong to admit S1's interviews as hearsay evidence and that the judge was wrong not to stay the counts on which the applicant was convicted as an abuse of process.
In refusing leave to appeal, the single judge said as follows:
"… The judge made full and careful rulings in respect of the hearsay application and the abuse of process argument. I do not find any merit in the proposed grounds of appeal. The judge’s consideration of the hearsay argument was soundly based on the relevant law, and he did not fail to consider the challenges admission of the evidence would present to you. His ruling is not arguably incorrect.
The trial of historical allegations will frequently have to take place in the absence of documentary records but that does not mean the trial is unfair. The judge addressed the correct questions, and where he found unfair prejudice, he stayed the single count. He was justified in finding that your trial could proceed on the remainder. You had the opportunity of giving evidence to explain where you were over the relevant time-period and why the witnesses were not telling the truth. The jury must have followed the directions the judge gave (about which there is no complaint), and you were not convicted on all counts."
We have considered for ourselves all of the relevant documents and all of the parties' rival submissions, but we have concluded that we agree with the single judge that, for the reasons which he gave, the proposed grounds of appeal are not arguable. We dismiss the application.
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