R v Stephen Hardy

This is a case in which the provisions of the Sexual Offences (Amendment) Act 1992 apply. 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.

The applicant is now 47. On Friday 28 July 2023, in the Crown Court at Liverpool, before His Honour Judge Trevor Jones ("the judge") and a jury, the applicant was convicted of sexual assault of a child under 13 (count 1), sexual assault (counts 2 to 3, 10, 11 and 17), causing or inciting a child to engage in sexual activity (counts 4 to 5), assault by penetration (counts 6 to 7), rape (counts 8 to 9, 13 to 16), causing a child to watch a sexual act (count 12), causing a person to engage in sexual activity without consent (counts 18 to 19) and engaging in coercive or controlling behaviour (count 20). The victim of all this offending was the applicant's step-daughter ("ABC") who was born in December 2000.

On 13 September 2023 the applicant was sentenced to an extended sentence, pursuant to section 279 of the Sentencing Act 2020, of 32 years, comprising a custodial period of 26 years and an extended licence period of six years. He renews his application for permission to appeal against both conviction and sentence following refusal by the single judge.

It is necessary to set out in some detail the facts of the applicant's offending. That is because it explains the judge's approach in particular to the sentence that he subsequently imposed. The applicant began a relationship with ABC's mother ("DEF") in about 2005. He was a serving police officer and a detective within the Greater Manchester Police. The applicant and DEF had a child (ABC's half- sister) in 2009. The relationship ended in about 2016 when ABC was about 16. She continued to live with the applicant until 2019.

When ABC was around 11 or 12 the applicant would say that she was not wiping her bottom properly after using the toilet and would insist on coming into the bathroom and wiping her bottom for her (count 1). When she was around 13 or 14 she came home to find the applicant on his bed wearing only his boxer shorts. When ABC went to speak to him the applicant put her hands on his shorts and on to his penis; she said that this happened regularly (counts 2 to 3 with count 3 being a multiple-incident count).

Soon thereafter the applicant asked ABC to masturbate his penis until he ejaculated as a punishment for perceived wrongdoing that he said had occurred, in particular the non-completion of chores that he had allocated to her (counts 4 to 5 with count 5 a multiple-incident count). ABC said that the applicant subsequently decided that this was not a sufficient punishment. He then progressed to performing oral sex on her (counts 6 to 7) and making her perform oral sex on him until he ejaculated either on her chest or her clothes (counts 8 to 9). Both counts 7 and 9 were multiple-incident counts. After the abuse had occurred ABC said that she was told to sleep naked in his bed and he would have his arm or leg around her as she slept and would touch her stomach (counts 10 to 11 with count 11 a multiple-incident count).

ABC said that when she was around 15 years old the applicant showed her pornographic material on his mobile telephone (count 12). Thereafter he said that oral sex was no longer a sufficient punishment for her behaviour. The applicant told her that he did not want to take her virginity because that was ‘special’ so instead made her engage in anal sex with him until he ejaculated. This occurred around once a month and started when she was around 16 years old (counts 13 to 14 with count 14 a multiple-incident count). After ABC lost her virginity to her boyfriend, the applicant said they could now have vaginal sex instead as a punishment (counts 15 to 16 with count 16 a multiple-incident count). During these repeated rapes the applicant did not use protection and would ejaculate inside her. The final punishment that ABC could recall was that the applicant would lie in the bath, encourage her to squat over him and urinate into his mouth (counts 18 to 19 with count 19 a multiple-incident count). On one occasion the applicant made her kneel and he urinated on to her chest (count 17).

An underlying theme of ABC's evidence concerned the applicant's coercive and controlling behaviour towards her (count 20). This involved alienating her from friends and family, including her mother, telling her what clothes to wear, controlling her finances, checking her phone and making her carry out excessive household chores. She said that the abuse continued on a weekly basis and reduced only when she went to university in September 2019.

At trial, there was a good deal of evidence to support the Crown's case. That included of course detailed evidence from ABC, together with a telephone recording of her and the applicant, diary entries and numerous text messages. In addition, there was evidence from DEF which, amongst other things, included an allegation that the applicant had taken an intimate video of her and her new partner and then showed it to DEF's father. DEF subsequently reported this incident and later instance of the applicant’s coercive and controlling behaviour towards her. That report was made to the police in 2017. There was evidence from DEF's father in relation to the video. There was also evidence from the applicant's former partner XYZ in relation to her relationship with the applicant and what she said was his controlling and manipulative behaviour towards her. XYZ also said that on two occasions during sexual intercourse he had, with her consent, urinated on her. There was also evidence from ABC's boyfriend as to her complaint to him about the abuse she had suffered and other evidence from friends and family.

The defence case was one of denial. The applicant denied all the allegations of sexual abuse and rape. He accepted that he allocated chores but denied that they were excessive. He denied he had taken an intimate video of DEF. He said he was concerned that DEF had started taking drugs and showed her father a video showing her smoking cannabis and taking cocaine. He accepted that he tried urination with XYZ but denied that it was a fetish that he had. He denied that he engaged in controlling or coercive behaviour against ABC and said that DEF's similar complaint in 2017 had been completely exaggerated. He agreed that he had looked at and advised changes to messages that ABC was planning to send to DEF, and he said that this was so as to persuade her to change the tone of those messages. He accepted that he checked some of the websites that ABC had accessed but he said that this was always in her presence and denied that he had ever monitored her phone.

There was also evidence from the applicant's brother as to the video which he considered to be a safeguarding issue, from the applicant's mother also about the video, and from his current partner who denied that he acted in a controlling way towards her and said he had never asked her to urinate on him.

The judge provided written legal directions to the jury. After counsel's speeches, the judge then summed up the facts. The jury retired at 11.38 a.m. on Friday, 28 July 2023 and returned unanimous guilty verdicts on all counts at 15.48 p.m. the same day.

There are two grounds for the renewed application for permission to appeal against conviction. Although ostensibly the first is concerned with the judge's bad character ruling, it is, on analysis, concerned with disclosure after that ruling had been made. The second is a complaint that the summing-up was unbalanced in that it devoted more time to the prosecution case than the defence.

Whilst we consider each of those grounds below, it is important to make two matters clear at the outset. First, on our perusal of the trial documents, this was in general terms a case where the evidence against the applicant was strong. We are, therefore, unsurprised that he was unanimously convicted of these offences. Secondly, we consider that although the evidence of ABC was, quite properly, rigorously tested by Ms Smart KC, on behalf of the applicant, the evidence on the critical issues remained largely unshaken and can even be described as compelling.

Well before the trial, on 21 October 2022, the Crown applied to rely on the evidence from DEF and XYZ as bad character evidence against the applicant. The application was limited to the evidence of the applicant's controlling and coercive behaviour towards both women and the evidence of urination in relation to XYZ. The application was resisted by the defence, and a skeleton argument was filed on 5 February 2023 on the grounds that it would involve significant satellite litigation. The point was made that the police had not charged the applicant with any offences against either woman. As to the urination, they said it could not be evidence of bad character because XYZ had consented.

We note that even at that early stage the defence skeleton argument did not complain that, if admitted, the bad character evidence would necessitate further disclosure. On the contrary, it expressly accepted that the Crown had already provided disclosure on those matters. The complaint was that if that evidence was admitted because of "the wealth of material that has already been generated in this case" in order to challenge these additional allegations of coercive and controlling behaviour, the applicant "will be required to draw from this material which will be complex and time-consuming" (see, in particular, paragraph 22 of the defence skeleton argument).

In a ruling given during the trial on 29 June 2023, the judge admitted the bad character evidence. In his ruling he noted that whilst it may involve satellite issues, that was frequently the case when bad character evidence was introduced. Given the fact that ABC's complaint involved both urination and controlling and coercive behaviour, the judge could see no reason to exclude similar evidence from her mother and from the applicant's previous partner. There was no mention of any disclosure issues because they had not formed any part of the defence objection to the bad character evidence.

Ground 1 of the appeal against conviction asserts that the evidence should not have been admitted. The basis of that complaint now is new. It is submitted that the Crown failed to apply and comply with the disclosure test to ensure that material relating to and arising from, in particular, the 2017/2018 criminal investigation concerning DEF's allegation of coercive and controlling behaviour was properly disclosed following the bad character ruling. In other words, the ruling itself is not now challenged, a position expressly confirmed by Ms Smart this morning in her helpful submissions. In our view, that is unsurprising given that the applicant accepted the urination allegation made by XYZ and that the allegation of controlling and coercive behaviour against both women was clearly of relevance to the same count (count 20) concerning ABC.

The new submission that the Crown failed to apply and comply with the disclosure test after the ruling seems to us, on analysis, to fail at every level. First, we have seen a detailed schedule prepared by the Crown detailing the timing of disclosure of material from the 2017/2018 investigation. This identified the applicant's requests for disclosure and the Crown's responses. Some 30 separate categories of documentation were disclosed arising from that investigation. There has been no suggestion that the schedule is inaccurate or incomplete. It demonstrates, therefore, that the allegation of non-compliance is not made out on the facts.

Secondly, we note that various action boards were disclosed relating to the allegations made by DEF as to controlling and coercive behaviour. Those set out in clear terms the lines of inquiry that were carried out by the officers investigating that complaint. That, perhaps, explains why the applicant's opposition to the bad character application was based on the work that his legal team would have to undertake on the material already disclosed and not a complaint that further disclosure would be necessary.

Thirdly, we consider that the main complaint, namely that DEF's mobile telephone may have revealed other undermining material had it been fully investigated, is entirely speculative. We do not consider it is open to the applicant in any event. There was nothing to suggest from the other material, in particular the action board, that DEF's mobile telephone might reveal any other undermining material. Indeed, the action board said in terms that a review of her phone showed no evidence of harassment. Of course, if the applicant considered in some way that there was more undermining material on the phone he could have made a targeted disclosure request seeking such specific material under section 8 of the Criminal Procedure Investigations Act 1996. That did not happen.

Instead, on 14 June 2023 the applicant's solicitors wrote to ask whether the prosecution had access to DEF's phone on the 2017/2018 investigation. When the Crown invited the applicant to set out why this was a reasonable line of inquiry there was no further response. No request was made for a download of DEF's phone. And that is in contrast to the disclosure application that was made a week later on 23 June in relation to ABC's phone. Thus, the point about DEF's phone was simply never raised again, and we consider that it is not open to the applicant to raise it now.

That leaves the fourth point. At no stage following the bad character ruling, which, as we said, appears no longer to be challenged, did the applicant raise with the judge any disclosure issues that were unresolved or that needed to be resolved before the trial was concluded. So, we consider, with respect, that this is an after-the-event argument that was not raised before the judge.

Finally, on the particular topic of DEF's allegation of coercive and controlling behaviour and the investigation into it in 2017/2018, we note that the fact that no charges resulted was plainly a point in favour of the applicant and properly featured in both cross-examination and the speech made to the jury on his behalf. No amount of additional disclosure could have improved that position from his point of view. Moreover, it was acknowledged that many of ABC's own texts and messages were in his favour. Although it was the Crown's case that this was as a result of his controlling and coercive behaviour, that was again a point that could be - and was - argued on his behalf before the jury. Again, further disclosure would have made no difference to that.

Accordingly, for these reasons we reject ground 1 of the renewed application for permission to appeal against conviction. We agree with the single judge when he said that there was no substance in this ground.

The second ground of complaint is that the summing-up was in some way unbalanced because it spent more time dealing with the prosecution case than with the defence case. We note that the single judge considered that an exercise that simply contrasted the amount of time in the summing-up accorded to the prosecution case as compared to the defence case "is in itself useless". We respectfully agree with that. On analysis, once that proposition is understood, this ground of appeal falls away entirely.

We analyse the position in stages. First, no criticism is made of any of the judge's legal directions. Secondly, no criticism is made of any particular points made or omitted by the judge in his summing-up. It is not said, for example, that the judge omitted to mention any important element of the defence case. So all that remains is a complaint based either on an alleged lack of emphasis of the defence case at various stages in the summing-up or the complaint that the prosecution case occupied more time than the defence case.

As to the emphasis complaint, the jury was warned in the usual way that what mattered was the evidence they thought was important, not the evidence or any perceived emphasis in the judge's summing-up. As to the complaint based on time, we have already said that any form of mathematical comparison exercise is meaningless. It is unsurprising that in cases of this sort a judge will focus on the Crown's case and the evidence adduced to support it because the Crown's case will involve considerable matters of detail whilst the defence case, (as here), will often amount to no more than a series of bare denials.

The present case is a good example of that. Here, the Crown not only adduced evidence from ABC but they also adduced evidence from seven other witnesses. Those witnesses were carefully cross-examined so that their evidence extended over a period in excess of 10 days. The defence called just four witnesses, including the applicant, and that evidence was concluded in less than half the time of the prosecution witnesses. Thus, even if some sort of mathematical comparison is appropriate, the reason for any imbalance is immediately explained.

There is however a wider point. We have been through the summing-up and we consider that the single judge was right to say that "It falls a very long way indeed short of giving rise to any viable argument based on lack of balance or fairness." We consider it was properly balanced, comprehensive and scrupulously fair.

One particular complaint that is made is that the judge summed up the applicant's interviews rather than going through them in detail. In our view that criticism is without merit. The judge is quite entitled to ask the jury to re-read the transcripts of interviews so as to remind themselves of the detail and simply to sum up the main elements of that interview. It can be counterproductive for a judge to spend hours in his or her summing-up laboriously reading out a lengthy transcript of what will often be a repetitive and slow police interview. Moreover, on analysis, much of the transcripts of the interviews in this case consisted of bare denials.

Another complaint concerns the summing-up of the text messages. Again, we consider that to be untenable. The summary of ABC's evidence referred to messages relied on by both the Crown and by the applicant, and the summary of the applicant's evidence carefully included a number of his explanations for those messages.

For those reasons, therefore, we consider there is nothing in ground 2 of the appeal against conviction. Thus, the renewed application for permission to appeal against conviction is refused.

As we have said, the overall term in this case was one of 26 years' imprisonment with an extended licence period of six years. That was, therefore, on any view a stern sentence. The question for us, of course, is whether or not it was manifestly excessive. By reference to the Sentencing Guidelines, the judge considered that this was in category A in respect of culpability. He said in relation to harm that it was at the upper end of category 2. The judge took the vaginal rape offences (counts 15 to 16) as the lead offences for sentencing purposes. Reference to the Sentencing Guidelines and the judge's categorisation produced a starting point of 10 years' imprisonment with a recommended range between nine years and 13 years for offences in that category. But as the judge noted, that recommendation is for a single offence. Counts 15 and 16 alone cover a minimum of five vaginal rapes because count 16 was a multiple-incident count alleging no fewer than four rapes in addition to the rape covered by count 15. Further, as the judge noted, counts 8 and 9 (oral rape) also covered at least five rapes. Counts 13 and 14 covered at least five anal rapes, making a total on those counts alone of at least 15 rapes, starting when ABC was just 15.

The judge explained that he took the vaginal rapes as the lead offences because they involved ejaculation without contraception, presenting a clear and repeated risk of pregnancy of his step-daughter. He identified a term of 20 years in total for the minimum of five rapes covered by counts 15 and 16. He then mentioned that the counts of anal and oral rape (counts 8 and 9 and counts 13 and 14) on their own would justify a sentence of 16 years which would be concurrent with the 20 years on counts 15 and 16. However, he said he was aware of totality. Accordingly, the judge took the 20-year term (counts 15 and 16) and added an additional period of six years, making a total of 26 years to reflect all the other 18 counts on which the applicant had been convicted.

The judge noted that the pre-sentence report assessed the applicant as a dangerous offender because he presented a significant risk of causing serious harm by committing further specified offences in respect of intimate partners and young females. The judge, who had of course presided over the trial, agreed with that conclusion. Accordingly, the judge imposed an extended sentence, comprising the custodial element of 26 years, to which we have referred, and an extended licence period of six years.

The renewed application for permission to appeal against sentence raised three points. The six-year uplift for the other offences, the extension period and the relevance or otherwise of the applicant's occupation as a police officer. We will deal with those points in turn. Before doing so, we note that no complaint is made about the judge's categorisation of the offending or the judge's finding of dangerousness.

In her written submissions, Ms Smart's complaint under this head related to the judge's decision to impose an additional period of six years to reflect the applicant's other criminality, that is to say his convictions on the other 18 separate counts, some of which were multiple-incident counts. The written submission complains that the judge did not give reasons as to how he had arrived at that figure and double-counted many of the relevant factors that would have been involved in his assessment of a starting point of 20 years for counts 15 and 16 alone. During the hearing this morning Ms Smart did, however, suggest that either the six years was wrong or the 20-year term for counts 15 and 16 was wrong because, one way or another, there must have been double counting.

We have considered that point carefully. We consider it is based on a potential misunderstanding of the judge's sentencing exercise. When the judge sentenced on counts 15 and 16, the aggravating factors that he mentioned were the ejaculation without contraception, the suppression of ABC's ability to complain and the fact that there were two counts and a minimum of five rapes committed in these circumstances of gross breach of trust.

Those factors alone might be said to justify an increase from a recommended term at the top end of the range of 13 years for one offence of vaginal rape to a term of 20 years for a minimum of five such rapes committed in these particular circumstances. On that basis, therefore, there is no double counting. The six-year uplift beyond the 20 years was designed solely to reflect all the other numerous counts on which the applicant had been convicted. The 20 years was justified by counts 15 and 16 alone. The judge had to uplift that 20 years in respect of all the other numerous counts in respect of which the applicant has been convicted. So this part of the sentencing exercise has nothing to do with any aggravating factors. It was based simply on other offences committed over many years in the applicant's conduct with his step-daughter.

As the judge himself noted, having regard to totality, having passed concurrent sentences in respect of all those counts, he would have arrived at a period far in excess of 26 years. He properly had regard to totality in order to arrive at what may be regarded by some as a relatively modest uplift of six years, from 20 years to 26 years, to reflect all the other offending.

Finally, on this point, we consider that the 26-year custodial term could have been expressed in numerous different ways, each of which would have been justified and entirely legitimate. So, for example, even if the 20 years had been said to relate to all the six counts of rape, which themselves involved no less than 15 separate vaginal, oral and anal rapes, there could have been no possible complaint that such a term on the remaining 14 counts would have justified the six-year uplift. Indeed, we note that the controlling and coercive behaviour count on its own would have required a significant consecutive term of imprisonment regardless of the totality. Therefore, it seems to us that whichever way this sentence is analysed, the sentence, although stern, cannot possibly be regarded as manifestly excessive.

The first ground on the renewed application for permission to appeal against sentence is, therefore, refused.

Here, the complaint is that the judge carried out no assessment of how the six-year extended licence period had been calculated. It is said no reasons were given as to how he arrived at that period. It is said there was an absence of any reference to the applicant's lack of previous convictions or his age when he was released from prison. The main point, as confirmed by Ms Smart in her submissions this morning, was that since a maximum extension period of eight years is permissible under the statute, a six-year extension period, being close to that maximum, was too long.

We reject those criticisms. The judge had to make an assessment based on all the information available to him. The pre-sentence report painted a damning picture of the applicant, and on its own justifieda lengthy extended period. The judge plainly considered that a lengthy extension period was required for the reasons he gave. A judge in that position is not required to set out any sort of detailed calculation of how he or she arrives at the relevant extension period. That is essentially a matter for the judge.

We consider that the point about the applicant's lack of previous convictions is hollow given that his offending against ABC occurred over a period of many years. The point about his age on release appears to be irrelevant on the evidence. There was nothing to suggest that the applicant's dangerousness could somehow be significantly diminished by the time that he was released.

Furthermore, we should say that by reference to the maximum period of eight years, this was a case in which an extension period of six years was more than justified. On one view it is difficult to imagine a worse case of grooming, sexual assault and multiple rapes carried out with deliberation and calculation over a period of many years. We, therefore, reject the sentencing point 2.

The submission is that the judge identified the applicant's employment as a police officer as a specific aggravating factor whilst in other cases involving criminal activity by police officers there was nothing to suggest that they were in any sort of special category for sentencing purposes.

Again, we do not consider that this is a fair reflection of the sentencing exercise undertaken by the judge. The judge referred to the applicant's occupation as a police officer in four separate places during his sentencing remarks. First, he referred to it as one of the reasons why ABC did not complain earlier. Secondly, he referred to ABC's victim personal statement in which she referred to her fear and mistrust of persons in positions of authority, in particular the police. Thirdly, he referred to it in relation to culpability because his occupation meant that the applicant fully understood the traumatic consequences of his actions. Finally, also when dealing with culpability, the judge said that one of the factors that put this in the top category (about which there is no complaint) was "... the gross abuse of trust by virtue of the relationship between the two of you, the clear presence of planning and grooming, including the isolation of ABC by virtue of your controlling and coercive behaviour. In addition, of course, is that element of authority and power by virtue of your position as a police officer ...".

In our view, each of those references to the applicant's occupation was entirely legitimate. They went principally to harm and culpability. In the skeleton argument produced on behalf of the applicant at the sentencing hearing it properly accepted (at paragraph 2) that his occupation was, indeed, relevant to an assessment of both those factors. The aggravating factors to which it was also relevant were the suppression of complaint and the gross abuse of trust which were points that the judge made. But the judge was careful to say that the abuse of trust arose primarily out of the step-father/daughter relationship between the applicant and ABC, whose position as a police officer merely exacerbated that abuse of trust.

Accordingly, we consider that the judge was quite entitled to make each of the references that he did. We also consider, standing back, that none of those observations had any or any significant effect on the length of the sentence. Moreover, we should add that, despite Ms Smart's submission this morning, we are firmly of the view that the fact that the applicant was a serving police officer, and therefore may suffer in consequence in prison, is not a mitigating factor.

For these reasons, therefore, we conclude that the submission that there was no special category reserved for police officers who commit offences when they are not acting in the course of their duties is a setting up of a point which does not arise on the facts of this case. Of course there is no special category, and the judge was not suggesting that there was. But sentencing always depends on the factual context of the individual case. None of the cases relied on by the applicant involve a police officer sexually assaulting and raping his own step-daughter over a period of years. Those cases are, therefore, irrelevant for present purposes.

For the reasons that we have given, the attack on the sentence imposed by the judge is in our view unjustified. None of the three points are arguable. We consider that in the circumstances of this case the judge's sentencing remarks and the periods of 26 years' custody and six years of extension were measured and just. It is true that they lead to a very lengthy sentence. But, in the overall circumstances of this case, that sentence cannot be described as manifestly excessive. In those circumstances the renewed application for permission to appeal against sentence is refused.