R v Marc Alun Williams

The applicant renews his application for leave to appeal against his conviction on 30 January 2024 in the Crown Court at Reading on two counts of attempted sexual communication with a child, contrary to section 1(1) of the Criminal Attempts Act 1981 and section 15A of the Sexual Offences Act 2003.

The Crown's case was that the applicant used gmail and Snapchat accounts in the name of Zac Thomas and an online chatroom, Chat Avenue, to communicate with what he believed were two girls, “Kaitlyn”, who said that she was 13, (count 1) and “Mia”, who said that she was 14, (count 2) for the purpose of sexual gratification. The girls' profiles were operated by undercover police officers.

The sexual nature of the communications was not in dispute, but the applicant denied that he was responsible for the communications. He gave evidence that the messages must have been instigated by an unknown third party who either hacked his device remotely or physically gained access to his Samsung mobile phone.

Among the agreed facts at trial were the following:

“5.

The SnapChat ID “zacthomasx” was active on the 10^th August 2020 on the IP address 94.173.43.3. On the 8^th August 2020 the IP address 94.173.43.3 shows the subscriber details as Marc Williams.

6.

Amongst the 30 terms found on the list “Removed Predicted Text” were the terms “Zacthomasx”, “zacthomasx”, “zac_thomas96” and “zacthomasc”.”

Following his conviction, the applicant was advised by his counsel that there were no arguable grounds of appeal. In particular, his counsel said as follows:

“It is of note that the defence instructed two forensic experts to examine the evidence for a number of reason (sic) but primarily to establish if there was any evidence to support the defence assertion that the defendant's devices were hacked remotely. Neither reports were served nor relied upon as they did not support the defence.”

The proposed grounds of appeal primarily concern alleged failures in the police investigation. In particular, it is alleged that the police failed to investigate certain IP addresses and telephone numbers, the details of these addresses and telephone numbers were not provided until the trial, the Crown's expert was not instructed to conduct any analysis as to whether the applicant's mobile telephone contained malware, the Crown's expert did not examine the applicant's router, the police did not attempt to arrange a meeting with the author of the messages attributed to the applicant, the applicant's alibi was not investigated and, in all the circumstances, the prosecution was an abuse of the process of the court. Another contention is that the Crown did not present certain evidence to the jury.

In refusing leave to appeal, the single judge said as follows:

“The proposed argument is that the prosecution did not make all reasonable lines of enquiry, and in particular did not examine the phone for hacking or use or interference by others.

What lines of enquiries are reasonable is a matter of judgment in each case. It will often be the case that more could be done than was done. In this particular case it is not arguable that the prosecution should have done more.

The point that some of the information that was available from the prosecution was not provided until late in the trial is noted, but it was still able to be part of the trial. Further, although it is for the prosecution to prove their case, the defence had and took the opportunity to look into the question of hacking themselves. They were unhappy with what their expert did and did not do, but it was open to them to require more to be done.

But ultimately and in any event a jury's assessment on whether there was hacking or whether instead the defendant was responsible for the messages can be made by their assessment of the circumstances including defendant's evidence which they listened to in full. They were entitled to conclude that his evidence was not true.”

The applicant has made further submissions since the refusal of leave by the single judge. He contends for a variety of reasons that the evidence at trial did not prove the case against him. He has also applied for permission to rely on the two expert reports which were obtained on his behalf and on statements from members of his family, namely his sister and his brother-in-law. The applicant also complains that one of the jurors was a member of the Thames Valley Police, although it is not suggested that any objection to the juror was made at the trial.

On an application of this nature the applicant has no right to be heard, but we have heard submissions from the applicant and we are grateful to him for the measured and sensible way in which he has addressed us and also for setting out his submissions in writing, which we have found very helpful.

We do not propose to repeat everything which he has said or to deal with every point which he has made, but we confirm that we have considered them all and considered them all very carefully. They include, for example, submissions as to various alleged incongruities, impossibilities or gaps in the technical evidence relied on by the Crown at trial. The applicant also challenged the expertise of the Crown's expert witness. However, despite these submissions, we agree with the single judge that the proposed appeal has no prospect of success. In so far as the applicant contends that the evidence at trial did not prove the case against him, that evidence was considered by the jury and the applicant had the opportunity to challenge it, to identify any alleged issues or gaps and to place them before the jury for their consideration. We have no doubt that the jury were entitled to reach the verdicts which they did on the basis of the evidence before them.

In so far as the applicant complains about alleged failures in the police investigation, we note that he was able to, and did, draw these alleged failures to the attention of the jury. In so far as he contends that his prosecution was an abuse of process, we note that it is not suggested that an application was made to the court for the prosecution to be stayed on this basis.

As to the application for leave to rely on fresh evidence, we note that this is not fresh evidence. The experts' reports are evidence which the applicant chose, on advice, not to rely on at trial. The statements from his sister and brother-in-law are in effect character references of the same kind as the many character references which were relied on at trial. The applicant complains that the expert witnesses instructed on his behalf relied on the download from his telephone obtained by the police and did not conduct an independent download, which is by no means an unusual state of affairs, but he has not presented any evidence that an independent download would have led them to express any different opinions. The fact that one of the jurors was a member of the Thames Valley Police is not, without more, a reason for concluding that the applicant's conviction was unsafe.

For all of these reasons, we refuse the renewed application for leave to appeal.