R v BD

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, where 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. That prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 1 August 2024 the applicant (then aged 64) was sentenced following a trial for a number of sexual offences against his stepdaughter. Leave to appeal against conviction and sentence was refused by the single judge. He renews both applications for leave.

For present purposes it is necessary only to record that the applicant was convicted of the following offences against the stepdaughter: one offence was a count of voyeurism, namely, secretly video recording his stepdaughter in the shower when she was 11 years old; one offence of taking indecent photographs of a child; two offences of sexual assault; one of causing a child to engage in sexual activity; and two offences of assault by penetration. He was also convicted of rape on one occasion (count 8) and he was convicted of rape which had occurred on three occasions (count 9).

The sentencing judge took the rape offences as the most serious. He imposed a sentence for the rape which reflected all of the offending and made the sentences for the other offences concurrent. The sentence for count 8 (the first count of rape) was 15 years' imprisonment; the same sentence was imposed for count 9, to be served concurrently; and the other sentences which were imposed were also made concurrent.

The applicant's case was that the sexual offending had not happened. His essential complaint to this court is that in relation to certain of the offences (counts 4, 6, 7, 8 and 9) the judge did not direct the jury or direct the jury with sufficient force and clarity to consider, if they were sure that the sexual activity happened, that they had also to be sure that the victim did not consent and that the applicant did not reasonably believe she had consented.

We have the written directions that were given to the jury and which they took with them. In relation to rape (counts 8 and 9) the direction was:

The question for this court is whether it is arguable that that direction resulted in a conviction that is unsafe.

In our judgment, in the circumstances of this case, it is not arguable that the directions given led to a conviction that was unsafe. There is no doubt that the judge directed the jury as to the relevant elements of the offence and to the fact that the prosecution had to prove the various elements. There is no doubt, as Mr Bown accepts, that there was evidence about lack of consent for example, which could be left to the jury. Thereafter, what the judge was seeking to do was to focus the jury's attention on the central issue in the case, which was effectively — was the stepdaughter fabricating or lying about this and it had not happened; or was in fact the jury sure that it had happened and that the stepfather had done these things.

Different judges would have summed up differently and different judges would have summed up more fully. Had that been done here, this application for leave to renew would probably never have been made. However, the question for this court is whether it is arguable that the way that the judge did sum up the offences, and in particular the direction that he gave, gives rise to convictions that are arguably unsafe. In our judgment it is not arguable that these convictions are unsafe because of the way in which the judge sought to assist the jury in dealing with the central issue in the case.

There is a second ground of appeal in relation to conviction. The judge admitted images of young children which were found on the applicant's computer and that was admitted as evidence of a propensity or evidence of an interest in young Thai girls, and that was said to be material to whether or not the defendant had committed the offences against this complainant. The argument put is that while the hard drives contained such material, there is no expert or other evidence to show the applicant used the search engine to look for those terms.

We reject that submission. There is no doubt that the judge was entitled to admit the evidence. It was not necessary to require expert or other evidence to show that the applicant had searched websites for those images. It was for the jury to assess the relevance of that material and whether or not it assisted them in deciding whether or not they were sure that the applicant had committed the offences with which he was charged. We therefore refuse leave to appeal against conviction.

Turning to the sentence, the applicant submits that the sentence was wrong. First — and this was the main focus of Mr Bown's oral submissions — it was said that the judge was wrong to find there was an abuse of trust. It is said that it cannot be assumed that a relationship of stepfather to a child involves a relationship of trust such that abuse of that trust is a factor relevant to culpability under the relevant Sentencing Council guidelines.

One needs to look at the facts of this case. The applicant was the victim's stepfather and had entered the child's life when the child was 4. He was married to the mother and was living in the same house as the child since she was 4. The child called him "Dad”, and the judge said he had the utmost position of trust over her. It is in our judgment, and with all due respect to counsel, simply not possible to suggest that on the facts of this case the stepfather, who had looked after the child since the age of 4, was not in a position of trust; and that did aggravate his culpability when assessing sentence for the sexual offences that he had committed against his young stepdaughter.

The applicant submitted that the length of the sentence was manifestly excessive. The judge had to sentence for a number of offences over a period of time. He took the rape as the most serious offence and imposed the sentence which is appropriate for that and all the other offending and he then made the other sentences concurrent. There is nothing wrong in that approach. The sentence imposed was perfectly proper and just. It is not even arguably manifestly excessive. Therefore, leave to appeal against sentence is refused.