R v Ashley Boyce

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition.

On 18 August 2023 in the Crown Court at Snaresbrook before Her Honour Judge Kamill, the applicant, who was then aged 29, was convicted of one count of rape (count 3), three counts of causing a person to engage in sexual activity without content (counts 5,8 and 9), one count of assault occasioning actual bodily harm (count 11), one count of possessing a firearm when prohibited (count 12), one count of possessing a firearm with intent to cause fear of violence (count 13), one count of threats to kill (count 14), and one count of controlling a child aged 13 to 17, subject to sexual exploitation (count 15). He was acquitted of false imprisonment (count 2) and causing a person to engage in sexual activity without consent (count 10). The jury could not agree a verdict on three counts of rape, which were counts 4, 6 and 7, and those counts were ordered to lie on the file. The aggregate sentence imposed by the Judge was an extended sentence of 23 years comprising a custodial term of 18 years and an extension period of five years. Other ancillary orders were made to which we do not need to refer.

The applicant now renews his applications for extensions of time and for leave to appeal against conviction and sentence. The period of the requested extensions of time are short and are not in any way the fault of the applicant. We therefore extend time as requested and as necessary.

It is not necessary to say anything more about the facts of the case at this stage. We therefore turn to the proposed grounds of appeal against conviction. As set out in the advice, there are five grounds:

Grounds 1 and 2. We have very considerable sympathy with the Judge who was confronted by a difficult situation arising out of disagreements in the jury room. However, we consider that grounds 1 and 2 are arguable. We therefore give leave on those two grounds.

Ground 3. The prosecution were permitted to adduce evidence of the applicant's bad character, including in the following terms:

The applicant accepts that the Judge was clearly entitled to the view that gateway G was engaged, but submits that she fell into error in permitting the facts of the convictions and, in particular, the first of them to go before the jury on the grounds of propensity or under gateway G, and in any event, erred in not excluding his conviction from 2009. Apart from the age of the 2009 conviction, the applicant relies upon his age at the time and that the eventual pleas differed markedly from the reporting and development of the allegations both during investigation and followingcharge, which suggested that there was a basis of plea that is now no longer available. The applicant also relies upon the unsavoury nature of the 2009 offending, which he submits would have been unduly prejudicial and should have been excluded on that ground. As we have said, it involved the applicant performing oral sex on his much younger brother.

The defence asked the Judge to rule on the admission of the applicant's character and she did so. Specifically in relation to the 2009 offence, she ruled it to be clearly relevant as it was:

In due course, the Judge gave a conventional and correct ruling, explaining that the jury had heard about these convictions because the applicant had attacked the prosecution witnesses and, "as a result, you are entitled to know about the character of the person who makes allegations, when you are deciding whether they are true." The Judge went on to give a conventional and correct direction on propensity.

In our judgment, it is plain beyond argument that the applicant's bad character was admissible by gateway G. It was also admissible by gateway D, but in any event, it is well established that once bad character evidence is admitted through any gateway, it can be used for any purpose for which it is relevant. Whether or not the Judge was separately asked to exclude the 2009 convictions, we are satisfied that she was entitled to rule that it was admissible and could be admitted for the reasons she gave. Different considerations might have prevailed if the 2009 conviction had been the applicant's only one, but it was not, and it was rightly admitted as (a) relevant and (b) the first in a sequence of convictions, all of which were rightly put before the jury.

Ground 3 is not arguable. Leave to appeal on ground 3 is therefore refused.

Ground 4: count 15. We accept that there was a degree of imprecision in the approach to count 15 during the course of the trial. In the course of submissions today the court, with the assistance of Mr Cross, went through the stages by which the approach to count 15 was outlined to the jury, and they were given directions on the law to apply. The end result was that after the jury had retired and after guilty verdicts on counts 5, 8 and 9 had been returned but before verdicts on counts 10 and 15 had been returned, the jury asked whether a not guilty verdict on count 10 alone would mean count 15 came into play. The Judge answered in the affirmative in the following passage:

In our judgment, although there were undoubtedly passages which taken on their own might indicate confusion, it is plain that the meaning of the route to verdict and the oral direction ultimately given by the Judge was that, in the Judge's phrase, "it did not have to be 4 out of 4 acquittals on counts 5, 8, 9 and 10 before count 15 came into play." Count 15 was to be considered if there was an acquittal on any one or more of those four counts. It is plain that that is what ultimately happened. There was ample evidence to support the jury's conclusion on count 15, and we can detect no arguable unfairness or reasons to suspect that the verdict on count 15 is unsafe. Though not determinative, we are encouraged in our view by the fact that Mr Payne raised no objection either to the original route to verdict or the oral summing-up or the clarification that was subsequently given to the jury.

Mr Cross submits that count 15 was intended to be an alternative that came into play only if the applicant was acquitted of all of counts 5, 8, 9 and 10. Whatever the intention, there is no technical objection to the approach that was adopted, namely that the separate and distinct offence alleged under count 15 came into play if the applicant was acquitted on any one or more of counts 5, 8, 9 and 10. The upshot is that, ultimately, despite conviction on counts 5, 8 and 9, a legally permissible option of conviction on count 15 as alternative to count 10 only was left to the jury and was specifically clarified and confirmed as a proper verdict for the jury to consider when the point was raised. On that basis there is no reason to consider the jury's verdict on count 15 is either irregular or unsafe.

For these reasons ground 4 is unarguable and leave is refused. We note in passing that ground 4 is something of a storm of in a teacup, since the Judge ultimately imposed no separate penalty on count 15.

Ground 5. At one point the applicant's co-defendant Ms Bailey threatened to sack her counsel on the grounds that she was not following her instructions and not acting in accordance with the evidence. The Judge spoke directly to Ms Bailey and made clear the difficulties that might flow if she went ahead and sacked her counsel. In doing so she suggested that Ms Bailey should speak to her instructing solicitor and said that, "It would be a great shame if Miss Bailey was not represented", and that it could not be guaranteed that a substitute counsel would be able to take over. She observed that defending oneself is not easy, but she considered that Ms Bailey would be able to do that. The end result was that Ms Bailey recanted and counsel continued to represent her until the end of the trial.

We have reviewed the transcript of the Judge's remarks. We are unable to find any evidence of undue pressure being brought to bear on Ms Bailey. To the contrary, the Judge's treatment of the episode seems to us to have been impeccable. Furthermore, we are quite unable to discern any unfair disadvantage to the applicant flowing from Miss Bailey's expression of concern about her counsel or her ultimate decision to continue to be represented by her. There is no merit in this ground of appeal. Permission to appeal on ground 5 is therefore refused.

We reach this conclusion without reference to the information at paragraph 5(v) of the Respondent's Notice, which strongly suggests that Miss Bailey's complaints about her counsel were entirely synthetic and that the whole episode was performed by Ms Bailey at the applicant's request. That may or may not be true. It does not affect our decision.

For these reasons, the renewed application for leave to appeal against conviction is allowed on grounds 1 and 2, concerning the possible jury irregularity, but refused on all other grounds. We grant leave limited to grounds 1 and 2, and a representation order for junior counsel for the appeal. We will hear counsel about any other directions in due course.

The Judge sentenced the applicant as follows: on count 3 of the indictment, which was an offence of rape, on his conviction the Judge imposed an extended sentence of 23 years, comprising a custodial term of 18 years and an extension period of 5 years. On counts 5, 8 and 9, which were offences of causing a person to engage in sexual activity without consent, the Judge imposed sentences of 10 years' imprisonment on counts 5 and 9, and 9 years' imprisonment on count 9, all concurrent. On count 11, which was the offence of assault occasioning actual bodily harm, the Judge imposed a sentence of 4 years, 6 months, concurrent. On count 12, which was an offence of possessing a firearm when prohibited, the Judge imposed a sentence of 1 year, concurrent. On count 13, which was an offence of possessing a firearm with intent to cause fear of violence, the Judge imposed a sentence of 5 years' imprisonment, concurrent. On count 14, making a threat to kill, the Judge imposed a sentence of 3 years' imprisonment, concurrent, and on count 15, the offence of controlling a child prostitute, the Judge imposed no separate penalty.

It is at this stage necessary to outline briefly the facts of the offences of which the applicant was convicted. They all occurred in a relatively short period in October 2022. C1 was a vulnerable girl, aged 17 years at the time of the offending. She met Ms Bailey's son in Romford and ended up at her house, where Ms Bailey was living with the applicant. Count 3 was an offence of rape. As summarised by the Judge in her sentencing remarks:

“There was an expedition during the course of the evening to a shop. [The applicant] gave [C1] Fanta which had been spiked with MDMA and some cannabis or some sort of drug before [he] then took her to ˗˗ from the bedroom up to an empty corridor, put her coat on floor and let her sit. She sat there, and then you [that is the applicant] seeing a girl who was out of control of her own body as a result of the MDMA and cannabis, you raped her, placing your penis in her mouth, and then told her to go back to bed." On about 11 October 2022, C1 was taken to a BMW at 10 o'clock at night. The applicant sat in the back and told C1 to "Give Sunny head'. The man called Sunny used his hand at the back of C1's head to force her mouth on to his exposed penis. C1 bit the penis and the applicant shouted at her. The applicant knew she was not consenting but took £20 from Sunny anyway. The applicant denied involvement in these events and said that if C1 engaged in any sexual activity, she did so voluntarily of her own free will. That was count 5. Counts 8 and 9 occurred on the same date and involved C1 being raped orally and vaginally. C1 was taken by Ms Bailey and the applicant to a hotel. After speaking with a man, the applicant beckoned C1 over and told her "to do as he asks". In a room the man pulled C1's head on to his penis. That was count 8. The male then told C1 to lay down and he pushed her onto the bed where she lay with her legs crossed to prevent him taking down her trousers. Her hands were pushing unsuccessfully against his chest. He inserted his penis into her vagina and ejaculated inside her. That was count 9. As the Judge found in her sentencing remarks, meanwhile C1 was being made to sell drugs and was under the applicant's control. At some point C1 spoke to Ms Bailey who was carrying the applicant's child at the time and told her that the applicant had raped her. Ms Bailey confronted the applicant, which led to the offence of assault causing actual bodily harm, count 11.”

As found by the Judge:

As found by the Judge, counts 12, 13 and 14 occurred soon after.

As we have said, the Judge imposed no separate penalty on count 15. The Judge determined the sentences for all those offences other than count 3 first, having said that she would treat count 3 as the lead offence, with all other offences to run concurrently. She was fully entitled to adopt that course, which meant that the sentence on count 3 would have to reflect the overall criminality of the applicant's conduct.

In relation to count 3, the Judge held that the offence of rape was "pure power and control", and that was the purpose of the offence [...] because thereafter she was under your thumb, terrified of you [...] and you simply used her." The Judge regarded the offence of rape as aggravated by the applicant's previous convictions and his subsequent treatment of C1.

The Judge sentenced the applicant with the benefit of a Pre-sentence Report, which assessed the risk of serious harm posed by the applicant towards both victims, partners, the general public and children to be high. The Judge made a finding of dangerousness, and having earlier said that the starting point for count 3 was 10 years, imposed the extended sentence with a custodial element of 18 years and an extended licence period of 5 years.

The grounds may be summarised as:

There was ample evidence to support the finding of dangerousness. The combined effect of his previous convictions, the facts of the present offending and the terms of the PSR were such that it would have been very surprising if this experienced Judge had not made a finding of dangerousness. The first ground of appeal has no merit.

Similarly, we are not persuaded that a custodial element of 18 years was arguably manifestly excessive or wrong in principle. As we have said, the sentence on count 3 had to reflect the overall criminality of the applicant's behaviour. That included:

For these reasons the renewed application for leave to appeal against sentence is refused.