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Neutral Citation Number: [2026] EWCA Crim 1098 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT PRESTON (HER HONOUR JUDGE LLOYD) [T20177445] CASE NO 202401651/B3 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LADY JUSTICE WHIPPLE
MRS JUSTICE McGOWAN
MRS JUSTICE EADY
REX
V
ROBERT EDWARD O’BRIEN
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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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NON-COUNSEL APPLICATION
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JUDGMENT
MRS JUSTICE EADY:
Introduction
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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 to 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. We have not waived the prohibition.
The Single Judge having refused the applicant's application for an extension of time of 2,023 days to appeal against his conviction on the papers, the applicant, who acts in person, has renewed his application before the Full Court.
On 20 September 2018, in the Crown Court at Preston (Her Honour Judge Lloyd presiding) the applicant was convicted, after a trial before a jury, of nine counts of indecent assault and six counts of rape (unanimously on counts 2 to 7, 10 and 13 to 17; by a majority 10:2 on count 8, 9 and 12); the applicant was acquitted on two counts of indecent assaults (counts 1 and 11).
On 23 November 2018 the applicant was sentenced to a total of 18 years' imprisonment.
The facts
The complainants in the case ("C1") and ("C2") are estranged sisters. The applicant was their neighbour and a friend of their family when they were children.
The complainants each alleged that, whilst children, they were sexually abused by the applicant. Although sisters, when C1 first made her allegations, on 13 June 2016, she and C2 had not spoken to each other for about 20 years and had lived quite separate and distinct lives. It was only when C2 was approached by the Officer-in-the-Case as a potential witness that she immediately disclosed that she too had been the subject of abuse by the applicant and became a complainant in her own right.
The complainants were independently interviewed. C1 said that the applicant digitally penetrated her on numerous occasions, inserted objects into her vagina, raped her and committed buggery. C2 described how he would touch her vagina and get her to touch his penis on a regular basis and that he made her perform oral sex upon him and raped her on one occasion. Although neither complainant could be entirely sure when the abuse started, C1 thought the offences occurred between June 1980 and December 1987, when she would have been aged between 12 and 19 and the defendant was aged 30 to 37; as for C2 (the older sister), the offences occurred between June 1980 and September 1982, starting when she was 14 or 15. At the time of the offending, both complainants were experiencing problems in their homelife and were vulnerable.
To prove its case the prosecution relied on the following evidence:
The evidence of each of the complainants (both of whom gave evidence at trial):
C1. In her ABE interview of 6 June 2016, C1 recalled the applicant moving into his home and being sent over to his house when there were difficulties in her own home. At the beginning, the applicant was nice to her, complimenting her and telling her how pretty she was, making her feel good. He then started to touch her and brush against her in an “accidental” fashion, touching her breasts and telling her she was “special”, then taking her into his downstairs bathroom where he sexually touched her. C1 stated that the applicant made her perform oral sex upon him: he put his penis into her mouth, told her not to bite down and ejaculated into her mouth; this happened on a number of occasions (counts 5 and 6). The first time the applicant had full sex with her (count 7) was about a year after the incident with the candle (count 1: penetrating her vagina with a candle), of which the applicant was acquitted). He habitually touched her breast, put his fingers in her vagina (counts 2 and 3); on one occasion he penetrated her vagina with a handle of a hairbrush (count 4). He also had sex with her in the loft (count 8), on his stairs (count 9) and on his bed (count 10). On another occasion he penetrated her bottom with his penis in a downstairs bathroom (count 11). C1 recalled the last time she was assaulted when she was about 19 and had been asked to go to the applicant's house to borrow an onion; the applicant invited her in, kissed her and had sex with her behind the front door (count 12).
C2. In her ABE interview on 18 July 2016, C2 described how the applicant began by making suggestive remarks to her whenever she went over to his house. She recalled sitting in the garden; he said he could make her feel good, asking her to be nice to him, putting his hand on her and saying he could make her feel better, and asking to touch her. He touched her breast and made her touch him. He asked what she did with boyfriends and said he was better than them. On a number of occasions he made her touch his penis (counts 14 and 15) and, on at least one occasion, he touched her vagina (count 13). He repeatedly asked her to have sex with him and on one specific occasion, took her into his bedroom and had sex with her (count 17). On another occasion, while in the applicant's dining room, he asked her to give him oral sex, she refused, but he said he would stop if she put his penis into her mouth; she knelt in front of his chair, he put his penis into her mouth, ejaculated and told her to swallow it (count 16).
The prosecution also relied on disclosures that C1 had made before reporting the assaults to the police.
C1 said she told her mother at the time the incidents were taking place; for her part, C1's mother remembered her daughter telling her something in about 2010, recalling that she had told her the applicant had penetrated her with a candle, but she was so upset that she (C1's mother) did not push her for more disclosure.
Having married in 1988, C1 told her first husband about the abuse, including the penetration with the candle and a loft incident, in about 1989.
C1 also told her second husband before they married in 2004 that she had been sexually abused by the applicant.
C1 told her psychologist about the abuse in June 2016, which then led her to the police.
In his interviews in August 2016 and July 2018, his Defence Case Statement, and his evidence at trial, the applicant denied all the allegations; he said that, at the relevant time, he had been working five days a week, not returning home until 5.00-5.30pm on weekdays, and had worked nights between 1979 and 1984; although he accepted knowing both complainants, he denied the allegations they had made, saying these were imagined and/or fabricated.
The issue for the jury was therefore a factual one: on the evidence at the trial, had the prosecution established, to the criminal standard, that the matters alleged had taken place as stated by the complainants?
The appeal and the appellant's submissions; analysis and conclusions
The applicant seeks an extension of 2,023 days (approximately five and a half years) for leave to appeal against conviction, and a representation order (he acts in person on this application; he was represented by solicitors and counsel in the proceedings below). The applicant also asked the Court to direct the Criminal Cases Review Commission (“CCRC”) to impose a requirement on a Chief Officer of the Police to investigate an offence of perjury and, in his application, he has set out at some length the steps he has taken to encourage the police to investigate what he alleges to have been a perjury in his case, his approaches to the CCRC, and an apparent application for judicial review to get a crime number for the report he made. We note that none of these are matters that it is appropriate for this Court to address; we have focused instead on the out-of-time application for leave to appeal.
The applicant has sent voluminous documentation to the Criminal Appeals Office (“CAO”), including provisional grounds of appeal, “abridged” provisional grounds of appeal, individual submissions on different points raised in the grounds of appeal, extracts from C1's medical notes (part of the unused material below), and documents relating to the applicant's attempts to get other agencies to investigate his allegations of perjury. The applicant's grounds of appeal are repetitive and discursive; they are at times difficult to follow, requiring a disproportionate amount of additional work on the part of this Court in order to understand the points being made. By letter from the CAO of 20 June 2024, the applicant was asked to clarify his grounds of appeal and to provide reasons for the delay submitting his application; as it seemed he was also raising complaints about his trial lawyers, the applicant was further invited to waive privilege. In his response of 18 July 2024, the applicant declined to clarify his grounds of appeal (albeit he provided an “abridged” version of the grounds); he did not waive privilege nor did he address the issue of delay.
Notwithstanding the difficulties in addressing the applicant's proposed appeal, we have paid careful regard to the documentation that has been provided. We are, however, satisfied that there is no basis for granting the lengthy extension of time necessary for this appeal and that the application is properly to be described as wholly without merit. Our reasons are set out below.
We first observe that the applicant has failed to provide any sensible explanation for why he has made this application so late. By his letter of 18 July 2024, the applicant refers to the time he has taken to have the perjury he alleges to have occurred recorded as a crime and he has suggested that he has been afforded different treatment in the appeal process as compared to a professional representative. Any applicant (legally represented or not) would, however, have been treated in the same way; the fact that the applicant acts in person does not provide a good reason for the extraordinary delay and the failure to lodge the application for leave to appeal in time is not explained by the attempts to pursue allegations of perjury with other agencies. In the absence of reasons that explain the delay, there is simply no basis for granting the required extension of time; it would, as the Single Judge observed, be contrary to the good administration of justice.
Notwithstanding that straightforward answer to his case, we have gone on to consider the merit of the proposed grounds of appeal, as we recognise that this can be a relevant consideration when determining whether to extend time. The repetitive nature of the applicant's points of challenge have made this a more difficult exercise but we have sought to group like grounds together and to then address other matters raised within the documentation (albeit not expressly identified as grounds of appeal). Having completed this exercise, we are clear that the proposed grounds of challenge, considered individually or as a whole, do not identify anything that would arguably cast doubt on the safety of the convictions in this case.
Grounds 1, 2, 6, 9, 12 and 13: C2's “admitted consent”; unlawful prosecution/not in the public interest; “grooming”/”rape by submission” were not offences at the relevant time (and “grooming” could not have applied to C2 (who would have been over 16)).
The jury were able to consider C2's evidence in full, including what she said about having "let him" (the applicant) have sex with her. No counts were left to the jury under the Sexual Offences Act 2003; all the counts as left to the jury were charged under the Sexual Offences Act 1956; no charges such as “grooming” or “rape by submission” were formulated. There was no unlawful prosecution or prosecution contrary to public interest, and the trial judge's direction on the distinction between “consent” and “submission” (as relevant to charges under the 1956 Act) cannot be faulted; ultimately the jury were entitled to form their own view as to whether C2 had in fact consented.
Grounds 3 and 11: unfair trial: failure to investigate ill-health of the father of C1 and C2; perjury regarding the father's health.
In the Respondent's Notice it is pointed out that defence counsel was able to explore this issue through cross-examination but that, in any event, no requests (including in the applicant’s Defence Statement) were made for medical evidence relating to the complainants’ father. As the applicant acknowledges (ground 11), evidence was given by the mother of C1 and C2 regarding the health of her husband, and we also note that this was a point raised by defence counsel in closing. It was for the jury to determine what to make of this evidence and as to its impact, if any, of the evidence of the complainants.
Grounds 4, 5, 8, 19 and 20: unfair trial: failure to investigate/prosecute other allegations made by C1/prosecution misleading of the Court and unfair trial; failure to admit evidence of C1's “bad character” (what were said to be false allegations made against others); prosecution obstruction of justice through failure to take statement from C1's ex-husband (relevant to C1's credibility).
The Respondent's Notice provides a helpful context, accepting that prosecution counsel at one stage mistakenly informed the judge that C1 had made no prior allegations of sexual assault but pointing out this error was corrected before any evidence was called. As for whether any previous allegations of rape by C1 were investigated, that would not have relevance to the charges against the applicant. There was no evidence that demonstrated that C1 had previously made false allegations and there is no principled basis for making an application to adduce bad character evidence in this regard (which would inevitably have led to “satellite litigation” in order to establish the truth or otherwise of those other allegations), although it would have been open to the defence to take a statement from C1's ex-husband if that had been a point the applicant had then wished to pursue (there is no property in a witness).
Grounds 6, 7, 17, 18, 22, 23 and 25: unfair trial: failings in disclosure, in particular relating to medical evidence relevant to C1; and withholding of C1's medical records from the jury.
As the Respondent's Notice explains, medical notes deemed to satisfy the disclosure test had been disclosed in 2017 (pre-trial); there was, however, an additional note that had not been highlighted as meeting this test, which was disclosed to defence solicitors in 2019 (in the context of a prospective application for leave to appeal). The note in question records C1 reporting that she had been raped three times (although the figure then seems to have been struck through) then "at the ages of 11 to 13 years". C1's account to the police and at trial was that she could not be precise as to dates but alleged the applicant had raped her four times by 1986. The note might thus have been seen as corroboration of that evidence, and could be taken to show that C1 had reported the rapes during the abuse and was experiencing psychiatric trauma as a result. To the extent that this further evidence ought properly to have been disclosed pre-trial, it would not tend to suggest the applicant's convictions were unsafe.
Grounds 7, 10, 14 and 26: inconsistencies in evidence, collusion and perjury.
We have read the court transcript; it is apparent that inconsistencies in evidence were drawn out at trial and it was for the jury to determine what to make of those. The same is true of issues relating to cross-admissibility and collusion, and as reliability and credibility of the complainants.
Grounds 13-24: a lack of evidence to support C1's contention psychosis/suicide attempt.
Dr Martin was called to give evidence on this point, providing corroboration of C1's account.
Grounds 15 and 16: impossibility of allegation of rape in the loft.
It is apparent that C1 was cross-examined about the credibility of her evidence in relation to this allegation and the jury were able to reach their own conclusion as to whether or not this count was made out.
Ground 21: further unsubstantiated rape allegation made in cross-examination, notwithstanding C1 having denied making that allegation.
We have read the transcript of the cross-examination of the applicant and are unable to see this was an allegation advanced at trial (as is pointed out in the Respondent's Notice, this would have been contrary to C1's case).
Additionally, the applicant has argued that there was no corroboration of the complainant's allegation but we note: (i) this was not a requirement for any of the charges he faced; (ii) in any event, this was a matter for the jury to determine. The applicant has also made various allegations of police impropriety, but, as the Single Judge observed, these have no sustainable evidential base. As for the trial judge's rejection of the half-time submission, that was plainly a decision she was entitled to make for the reasons she gave. Subsequently, the judge's legal directions to the jury as to how they were to approach the evidence cannot be faulted and, as we have already commented, appropriately addressed the issue of submission and consent.
Ultimately the issue for the jury at trial was whether or not the two complainants had been sexually assaulted by the applicant as they alleged. The jury clearly accepted the evidence of C1 and C2 and rejected that of the applicant; most of the points raised by the grounds of appeal were matters for the jury to decide. The applicant does not agree with the verdicts under challenge, but an appeal is not an opportunity for a convicted defendant to re-argue the case below. Having considered all the points raised with some care, taken individually and cumulatively, we are satisfied that these do not cast any arguable doubt on the applicant's convictions; the proposed grounds are an attempt to re-argue the case and are without merit. That being so, even if there was an explanation for the lengthy delay in lodging this application for leave - which there is not - no purpose would be served by us granting the necessary extension of time in this instance. We therefore refuse the application.
In considering this matter on the papers, the Single Judge remarked that it was without merit, such that, should the application be renewed, the Full Court should consider directing that some part of the time spent in custody pending the determination of this appeal should not count as being part of the term of any sentence to which the applicant is currently subject. We share the Single Judge's view and have accordingly considered whether it would be appropriate to make such an order in this case. We bear in mind the applicant is a litigant in person, but we also note his failure to respond constructively to correspondence from the CAO seeking to clarify the explanation for the delay and the proposed grounds of appeal. We further note that criticisms of the applicant's former legal team implicit in certain of the grounds of appeal which have not been able to have been investigated because the applicant has chosen not to waive privilege. Yet further, of course, there is the very lengthy delay in the filing of this appeal, for which the applicant has provided no explanation. Although it is not a step we take lightly, we consider that this is a case where a loss of time direction should be made, and we duly so order in the amount of 28 days.
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