R v JDH

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. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. This judgment has been anonymised accordingly.

On 1 August 2023, in the Crown Court at Newcastle Upon Tyne (HHJ Bindloss), the applicant (then aged 55) was convicted of assault of a child under 13 by penetration contrary to section 6(1) of the Sexual Offences Act 2003 (Counts 1 and 3) and sexual assault of a child under 13 contrary to section 7(1) of the Sexual Offences Act 2003 (Count 2).

On 11 September 2023, before the same court and constitution, the applicant was sentenced to an extended sentence of imprisonment pursuant to section 279 of the Sentencing Act 2020 of 11 years comprising a custodial term of 10 years and an extended licence period of 1 year (concurrent on Counts 1 and 3) and 3 years' imprisonment (Count 2 - concurrent). A Sexual Harm Prevention Order was also imposed until further order.

The applicant renews his application for an extension of time (218 days) in which to apply for leave to appeal against conviction, leave to call fresh evidence and a representation order following refusal by the Single Judge.

In May 2008, the complainant and her two younger siblings were removed from their mother by Social Services and placed with their grandmother. The applicant was closely related to the complainant and he moved out of the address so that the children could be accommodated. The applicant was prohibited from entering the house while the children were there.

The complainant and her siblings stayed with their grandmother until July 2008 and, during this time, the applicant would regularly visit. The complainant's grandmother lived in a three-storey house; the complainant had her own bedroom on the second floor next to her brothers' bedroom and the bathroom was on the third floor. During her stay, the complainant attended a local school to which she travelled by bus.

In July 2008, the complainant and her siblings were placed into the emergency foster care. The children bonded with their foster mother and remained in her care for many years. In November 2020, the complainant disclosed to her foster mother that the applicant had sexually abused her in 2008 following which the matter was reported to the police.

The complainant told the police that on one occasion, she was naked in the bath when the applicant entered the bathroom. He persuaded her to allow him to touch her vagina and he then digitally penetrated her vagina. She said that he told her not to tell anyone about what had happened (Count 1). She said that a few days later, the applicant got into bed with her. He placed her on top of him, kissed her and rubbed his penis against her. She said that he only stopped because he thought that someone may enter the room but he told her that he had ejaculated (Count 2). She said that the final incident occurred when the applicant came to meet her after school one day, and then, on the bus journey home, the applicant put his hands up her skirt and digitally penetrated her vagina (Count 3).

In his police interview in March 2021, the applicant provided a prepared statement in which he denied the offences in their entirety and stated that he had never had unsupervised contact with the complainant.

The prosecution case was that the applicant visited the complainant's grandmother's address on a daily basis. He groomed the complainant (then aged 11) by buying her sweets and toys, complimenting her and being overly tactile and friendly with her before sexually assaulting her on three separate occasions. To prove the case, the prosecution relied on the complainant's evidence in which she described how the applicant had sexually assaulted her on three separate occasions, the complainant's brother's evidence in which he said that the applicant would enter his grandmother's house most days whilst they were staying there and the foster mother's evidence in which she described the complainant as being withdrawn, quiet and nervous around males. In her evidence the foster mother stated that shortly after arriving into her care, she and the complainant bumped into the applicant on a few occasions whilst out shopping. On each occasion the complainant "freaked out" and hid from the applicant. She said that following the last occasion that they saw the applicant, the complainant became very upset and described how the applicant had sexually abused her.

The prosecution evidence also included the evidence of DC Herron. She stated that she had accessed police records from 2008 which disclosed that on 20 June 2008, police officers visited the complainant's grandmother's house in the early hours of the morning and found the applicant hiding in a bedroom.

The Defence case was one of denial; the applicant did not enter the house when the complainant was staying there, he did not groom the complainant and he never sexually assaulted the complainant. The applicant gave evidence.

The issue for the jury was whether the complainant was telling the truth.

Following the refusal by the Single Judge, the applicant now renews his application for an extension of time and leave to appeal against conviction on the following grounds (which are of his own drafting), and which he submits render his convictions unsafe:

Like the Single Judge before us we are satisfied that there is nothing in the applicant's proposed grounds of appeal against conviction, and his convictions are not arguably unsafe.

The applicant was represented at trial by senior, experienced and able counsel. The complainant gave evidence via her police interview and pre-recorded cross-examination during which the applicant's counsel had the opportunity to ask her questions. The complainant's foster mother also gave evidence. It was an agreed fact that police had visited the house of the applicant's mother and she had told the police that the applicant was not there, before the applicant was found in the house by police. The applicant was cross-examined about this and accepted that the police had found him there. The significance of this was the adverse impact on his credibility given that the applicant had said in his defence statement that he did not go into the house. The precise location in which he was discovered, and the precise number of times on which the police visited the house, is not of material significance given the other evidence before the jury and the damage to the applicant's credibility as a result of the evidence as to his presence.

There is nothing in the proposed grounds, or the evidence that is sought to be adduced, which renders his convictions arguably unsafe, and in such circumstances the extension of time, and associated application for leave to appeal against conviction are dismissed.