R v Neil Patrick McEvoy

MR JUSTICE CAVANAGH: The provisions of the Sexual Offences (Amendment) Act 1992 apply to 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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

This is a renewed application for an extension of time of 590 days and for leave to appeal against conviction, the extension and leave having been refused by the single judge.

On 23 August 2022 in the Crown Court at Preston the applicant pleaded guilty to an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. On 24 October 2022, again in the Crown Court at Preston, the applicant pleaded guilty to an offence of causing a person to engage in sexual activity without consent, contrary to section 4 of the Sexual Offences Act 2003, and to an offence of rape, contrary to section 1 of the same Act. The victims in these two offences were different.

On 25 January 2023 the applicant was sentenced as follows. For the offence of rape, an extended sentence of imprisonment of 20 years, comprising a custodial term of 15 years and an extension period of five years; for the offence of assault occasioning actual bodily harm, a concurrent sentence of two years' imprisonment; and for the offence of causing a person to engage in sexual activity without consent, a concurrent sentence of three years' imprisonment. The applicant's appeal against sentence was refused by the full court on 19 May 2023.

The application for an extension of time and for leave to appeal against conviction is limited to the conviction for rape. The applicant has represented himself in this appeal.

The applicant relies on three grounds of appeal. These are that:

The court has seen and considered the applicant's grounds of appeal and the prosecution's Respondent's Notice. The applicant waived privilege and we have also seen the response from trial counsel. In addition, we have seen and considered the applicant's response to trial counsel's comments and a further document that the applicant submitted following receipt of the Respondent's Notice.

It is necessary briefly to summarise the facts of the offence of causing a person to engage in sexual activity without consent, as well as the facts of the offence of rape, although as we have said the application for leave to appeal is concerned only with the rape conviction.

The victim of the offence of causing a person to engage in sexual activity without consent, whom we will call JC, was a vulnerable adult under the care of social services. In 2005 she was found to have an IQ of 53 which meant that she had a poorer intellectual function than at least 99.9 per cent of the general population. Shortly after the incident she was assessed and found probably to have cognitive damage from reported chronic alcoholism and possibly an additional difficulty to process. In addition it was reported that she lacked capacity to consent to sexual activity due to the combined effect of her underlying significant mental impairment and consumption of alcohol.

On 6 November 2020, after he had been released under investigation in relation to the offence of assault occasioning actual bodily harm, the applicant invited JC, who was known to him, to join him and some friends in his flat. The applicant gave JC vodka and coke to drink but spent most of the time talking to his friends. After his friends left the applicant took a shower. Whilst he was doing so, JC used the toilet in the same room. As she was sitting on the toilet, the applicant emerged naked from the shower and told her to "wank this" referring to his exposed penis. When JC refused, the applicant took her hand, placed it on his penis and forced her to masturbate him until he ejaculated on her. As JC left the flat the applicant warned her not to tell anyone, including the police, what had happened.

Although JC was unable to make a victim personal statement, Professor Stuart Brody, a chartered psychologist, has assessed her and concluded that this offence has contributed to her severely deteriorating cognitive condition and that, despite her severe dementia, JC appears to have ongoing emotional pain as a consequence of being sexually assaulted.

We now move on to the facts of the rape. On 19 May 2022, while the applicant was under investigation for both of the earlier offences, he met, befriended, and raped his next victim, whom we will call AR. AR was 75 years of age and previously unknown to the applicant. She met the applicant after a night out in Preston and allowed him to walk her home. At her flat, after having a drink with the applicant, she told him that she was tired and wanted to go to bed. At that point the applicant asked if he could stay the night as he would be unable to return to where he was staying. She agreed but made it clear that there would be no sexual activity.

As they were lying together on the bed fully clothed the applicant put his arm around her. Then, without warning, he held her tightly, pulled down her trousers and raped her vaginally. AR resisted. Initially she bit the applicant's finger and hit him on the arm and shoulder with a hammer which she had picked up from the floor. The applicant ran off and AR called the police.

The complainant 'phoned the police after the applicant left and reported that she had been raped. When officers attended, the applicant presented himself to them outside the building and complained that the woman inside the flat had just accused him of rape. He was arrested. In police custody he was noted to have fresh injuries to his back.

In interview the applicant denied that he had had penetrative sex with the complainant. He stated that he had woken up to find her masturbating him. He had touched her vagina with his hand but she had started to behave strangely, prompting him to declare that he was leaving. AR then made an unfounded allegation of rape against him. She had not struck him with a hammer. The injuries to his back must have occurred whilst working as a labourer.

Had the matter proceeded to trial the Crown intended to rely on (1) the complainant's prerecorded video evidence; (2) the complainant's immediate 999 call and immediate complaint of rape; (3) the applicant's injuries on arrest in the areas the complainant had described striking him with a hammer; (4) the fact that the applicant had identified himself as the man the complaint was made against; and (5) cross-admissibility with the count of causing a person to engage in sexual activity without consent which, as we have said, was against a different complainant.

The first question is whether the applicant should be granted the extension of time necessary if this appeal is to proceed. We agree with the single judge that this extension should not be granted for the reasons that she gave. The applicant was represented by counsel and solicitors at trial and he appealed in time against his sentence. That appeal was unsuccessful. There is no reason why, if there was any merit in the appeal against conviction, the applicant could not have appealed against conviction at the same time. The only reason given by the applicant for the lengthy delay in seeking to appeal is that he said that he had asked his solicitors to have alternative counsel consider an appeal. The solicitors have no record of that. Moreover, even if he had made that request it provides no explanation for the lengthy delay.

Despite refusing to grant the necessary extension of time, we have considered whether the grounds of appeal put forward by the applicant are arguable. They are not. The first ground is that the applicant only pleaded guilty because he had been told by his counsel that if he did so he would receive a sentence of 10 years and would only serve half. Counsel admits that this is what he told the applicant he estimated that the sentence would be. As it turned out, this was a serious underestimate of the sentence that the applicant actually received.

A guilty plea does not mean that a convicted offender cannot appeal against conviction. However the court should be cautious when overturning convictions following guilty pleas. As Lord Hughes made clear in R v Asiedu [2014] EWCA Crim 567, it will ordinarily be difficult to overturn a voluntary confession. A defendant, having made a formal admission in open court that they are guilty of the offence, will not normally be permitted to change their mind. The trial process is not to be treated as a tactical game.

In the present case, the applicant's guilty plea to rape was unequivocal and, on his own account, it was made voluntarily. He had plenty of time to think about whether to proffer it and at the time of entering it he knew the Crown's case against him and that he was facing on any view a substantial prison sentence. Indeed, the trial date was put back by several days to give the applicant an opportunity to consider his position. The applicant's guilty plea to this rape resulted in the prosecution dropping two other counts of rape against him involving the other victim. It was only a very long time after his guilty plea that the applicant first raised the issue of an appeal against conviction.

There are limited circumstances in which an appeal against conviction can succeed notwithstanding a guilty plea. There are several categories of case in which a guilty plea may be set aside as summarised in Tredget [2022] EWCA Crim 108. One category is that of cases where the guilty plea is vitiated. This can occur in several circumstances. The relevant circumstances for present purposes are where the plea has been compelled by improper pressure: see Nightingale [2013] EWCA Crim 405 or by incorrect legal advice that deprived the defendant of a defence which quite probably would have succeeded, such that a clear injustice has been done: see Boal [1992] QB 591.

Another relevant category is a small residual category where it is established that the appellant did not commit the offence and in other words that the admission made by the plea is a false one: see T [2022] EWCA Crim 108.

It is not arguable, however, that the present case falls into any of these categories. Advice about the potential length of sentence if a guilty plea is offered does not amount to improper pressure on the defendant, even if it is over-optimistic. In the present case, even on the basis of the advice that he says he received, the applicant was facing a 10-year sentence. This did not represent a significant incentive to plead guilty if he was genuinely innocent. Also, the response from the applicant's former counsel makes clear that the applicant was told that he should plead guilty only if he genuinely was guilty. He was not put under any pressure to plead guilty if he was innocent. Similarly, over-optimistic advice on a potential sentence is not incorrect legal advice of a type that vitiates a guilty plea. It is only in exceptional cases where incorrect legal advice has deprived the defendant of a defence that would probably have succeeded that a guilty plea will be set aside on this ground: see for example Tredget at 158. Advice on sentence does not fall into this category. In Saik [2004] EWCA Crim 2396, this court made clear that erroneous advice about length of sentence and the likely course of confiscation proceedings did not invalidate a plea of guilty. In any event, the response from the applicant's former counsel makes clear that the advice that he was given stressed that no promises or guarantees could be made about the likely length of sentence. No unconditional assurance was given to the applicant that he would receive a lower sentence and it would be obvious to him that counsel could not make such a promise.

This leaves the small residual category of cases in which it became clear that the applicant did not commit the offence. That is not even arguably this case. There was very strong evidence against the applicant. This included the contemporaneous complaint of rape by the victim, the fact that the applicant's own evidence was that he had been to her flat and had sexual intercourse with her, the fact that he had injuries on his back which were consistent with having been hit with a hammer by the victim and the cross-admissibility of the other sexual offence.

It is also worth noting that the pre-sentence report, prepared after the applicant's guilty plea, records him describing feeling as if he has been thrown under a bus by having pleaded guilty to these offences but, when challenged as to the veracity of his assertions in light of his guilty pleas, he stated: "If it's happened the way they said it's happened that way. I pleaded guilty. I'm not denying any of it."

The second ground of appeal is concerned with the absence of DNA evidence. This is not significant. On the victim's case the applicant did not ejaculate in or on her and so there would be no DNA from semen. Nor is it significant that the applicant's DNA was not found on the hammer. DNA is not always transferred onto an object that comes into contact with skin and anyway the applicant's upper body may have been clothed.

The final ground is that the applicant's barrister represented him badly. The applicant says that he should have had a trial and that if that had happened he would have been acquitted. This is really another way of putting the first two grounds. There is no evidence that would support an arguable case that the applicant's barrister represented him badly. Given the strength of the evidence against the applicant, it was sensible for his barrister to recommend that he consider a plea of guilty to the rape but, as we have said, it is clear that it was the applicant's voluntary choice to do so. It was therefore as a result of the applicant's choice that he did not proceed to trial and he cannot now complain about it.

As there are no arguable grounds for appealing, this is another reason why an extension of time for appealing is refused.