R v Samuel Hodgetts

This is an application for leave to appeal against conviction which has been referred to the full court by the Registrar. The Registrar also directed that if leave to appeal were to be granted the appeal itself would be disposed of and dealt with at the same hearing.

The provisions of the Sexual Offences Amendment Act 1992 apply to the offences alleged in this case. 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 it is waived or lifted by further order of this Court in accordance with Section 3 of this Act. That has not happened and there is no reason to suppose that it ever will.

The convictions to which this application relates occurred in the Military Court Centre at Catterick on 25^th July 2025 before Assistant Judge Advocate General Legard. The Applicant was convicted of one charge of assault by penetration which was Charge 2, and three charges of sexual assault which were Charges 4(a), 5(a) and 8.

Charges 4(a), 5(a) and 8 all appeared on the Charge-Sheet by way of amendment during the trial because of evidence given by the complainant which suggested that she was uncertain about certain elements of the original charges which had appeared on the Charge-Sheet.

The Applicant was acquitted by the Board of Charges 3 to 5 which had alleged assault by penetration. The penetration involved being the matter about which the Complainant had expressed uncertainty. That is why two of the Charges were replaced by Charges 4(a) and Charge 5(a) being sexual assault without the additional element of penetration. All of those Charges which we have just referred to related to an incident which occurred on 20^th October 2023, which, for reasons which will become clear, has usually been referred to in the course of these proceedings as the second incident.

He was also acquitted in the same trial, of Charges 6 and 7, which were charges of sexual assault. Those related to another incident, usually referred to as the first incident, which it appears certain, actually occurred on 6^th October 2023. There had originally been a suggested date in the Charges for that first incident of 13^th October 2023. It emerged in the course of evidence during the trial that the Applicant had a photograph on his phone showing him somewhere else on 13^th October 2023, and not in contact with the Complainant. However, he also had a photograph on the phone of her in a onesie which was taken, according to its metadata, on 6^th October. It therefore appeared likely, and the trial assumed that it was the case, that the incident which either did or did not involve sexual assault, the first incident, had in fact taken place on the date when that second photograph was taken, namely 6^th October. The fact that that only emerged during the trial is one of the facts which we are invited to take into account in evaluating the ground of appeal to which we shall shortly turn.

Both of these incidents involved the same two people, the Complainant and the Applicant. Both were serving private soldiers, serving on the same military establishment. The Applicant was subsequently sentenced, for the offences of which he had been convicted, to a total term of 66 months’ imprisonment and was dismissed from His Majesty’s Armed Forces.

It is necessary to say a little bit about the facts. It is not necessary to go into exhaustive detail about the precise nature of all of the allegations. It will be convenient to deal with the second incident first. The second incident occurred during the night of 19^th to 20^th October 2023. The Applicant and Complainant and other people that they knew had been on a night out which had involved significant consumption of alcohol. In the early hours of the morning, the Applicant, Complainant and two others returned to the single living accommodation of another soldier. They all fell asleep on his double bed.

During the night the Complainant awoke on a number of occasions before falling back to sleep, no doubt influenced by alcohol. On the first occasion she awoke and said that the Applicant was rubbing around her genital area. That resulted in the conviction for Charge 8, Sexual Assault. She had originally alleged that he had penetrated her vagina with his finger. However, her lack of certainty about whether penetration had actually occurred resulted in that charge being discontinued and Charge 8 added, and that was the charge which resulted in that conviction.

Later on, during the same night she awoke again and found that her head was banging against the headboard and the Applicant had placed three or four fingers inside her vagina and anus. She said that he had lifted her leg onto his shoulder so that he could do this. In the end, it would appear because of findings by forensic experts of DNA, attributable to the Applicant, on samples taken from the Complainant, the Board convicted of Charge 2 which was the penetration of the vagina by the Applicant’s fingers but acquitted of Charge 3 which alleged the same activity in relation to her anus.

On the third occasion when she woke up, by now, between 8 and 10 o’clock in the morning, she said that the Applicant was touching her vagina and anus, that being Charges 4(a) and 5(a). Once again, she had originally said that she thought that he had penetrated those two orifices with his fingers, but during the evidence it emerged that she was uncertain about that, resulting in the substitution of Charges 4(a) and 5(a) of sexual assault.

After that third event, she returned to her room. She immediately complained to other people at the establishment of what had happened. She went to the toilet and saw that she was bleeding and she called her mother. She also sent messages to the Applicant, because she said she wanted him to confess before she reported him to the authorities. She did not wash because she had decided that she was going to make a complaint about his behaviour, and she understood the significance of that.

On 21^st October 2023, there was a forensic medical examination, during which swabs were taken. On analysis a profile attributable to the Applicant was found within swabs taken from the Complainant’s vulva and perineal swabs, low vaginal swabs, perianal swabs and, most significantly, high vaginal swabs. The expert concluded, when reporting for the service police, that the findings provided very strong support for the proposition that the Applicant had digitally penetrated the Complainant’s vagina, rather than the proposition that he did not but held hands in bed when they were fully clothed.

The trace amounts of male DNA found on the anal canal swabs and absence of DNA on the rectal swabs was said, by the expert, to be inconclusive as to whether there had been digital penetration of the Complainant’s anus by the Applicant. The expert was, in due course, invited to consider further the possibility of the finding of DNA on the high vaginal swab being attributable to indirect transfer in some way, as a result of the Applicant’s DNA being transferred to the Complainant, because of holding hands or in some other way. The expert’s conclusion was reviewed by an expert instructed on behalf of the Applicant, but, in the event, there was no disagreement between experts on this issue. The substance of their agreement was reduced to an admission which was placed before the Board.

In summary, this concluded that if there had been indirect transfer, whether as a result of holding hands or otherwise, there would have been an extremely low expectation of detecting the Applicant’s DNA on swabs taken 16 or 18 hours after the contact. Some of the DNA from her hands, which had got there from contact with his hands, would have been lost from her touching other surfaces. In the opinion of the experts, indirect transfer was less likely than direct transfer resulting from the alleged digital penetration of the vagina, having actually taken place.

It will be noted from our review of the convictions and the allegations to which they relate that that was the only act of digital penetration which the Board found proved, the act which was confirmed or strongly supported at least by that agreed expert evidence.

The Applicant was first interviewed by the service police on 21^st October 2023 which was the same day, as will be recalled, when the swabs were taken from the Complainant. The results of their examination were of course not available at the time of the interview. In the course of interview, he denied any sexual offending and denied penetrating the Complainant with his fingers. By this stage, that first police interview, the Complainant herself had not been interviewed by the formal evidence taking process usually referred to as “ABE”, Achieving Best Evidence. That occurred two days later on 23^rd October 2023.

When she was interviewed and the video and audio recording made of that interview, she gave her evidence about the second incident which we have already set out in summary. She also said that something else had happened on 13^th October 2023. We have already dealt with her dating of that first incident. That first incident had not previously, it would appear, been mentioned and certainly did not feature in the police interview which had been carried out with the Applicant on 21^st October 2023, two days before the ABE recording was made.

There was, though, a further police interview on 25^th June 2024, by which time the ABE was available and so also were the DNA results which we have referred to above. In that second interview, the Applicant maintained his denial of any significant sexual contact with the Complainant. During that second interview he could, of course, have been asked about the first incident. He was not because the senior investigating officer had not listened to the ABE recording and was proceeding only on the basis of a summary. It would appear that he did not listen to it all because it was “too long”. The result of that was that the interviewing police officers were unaware that there was any allegation about any sexual misconduct having taken place before the second incident. No further investigation in relation to it was carried out in 2024. Some further investigation did take place in 2025, to which we shall refer shortly.

The facts of the first incident, dated as we have said to the 6^th October, can be shortly summarised. In it the Complainant said that once again she had been out drinking, with the Applicant and, on this occasion, a Private B. They had returned to the Applicant’s living accommodation at the end of their evening’s drinking. She said that while she was temporarily alone with the Applicant, he had laid down next to her on his bed while Private B was using the toilet.

There had then been a brief incident during which he had wrapped his arm around her and said that he wanted to check whether the onesie she was wearing had a pocket. She said that he had put his hand between her legs, touching her vaginal area over her clothing. She had slapped his hand away and told him to stop it. He did pull his hand away but as he did so he cupped her breast over clothing, so she said. She said that she had told him to behave and hidden in the bathroom for a few minutes after the return of Private B.

She made a complaint to her boyfriend about what had happened and to her mother and to other friends, but she did not make any formal complaint at that time. She thought that it had happened because the Applicant was drunk and she had made it clear enough to him, as a result of his behaviour, that it was not to happen again. She tried to avoid him, she said, as much as she could after that, but they were still working together and living in the same block and contact was inevitable. We have already recounted how that developed on 19^th and 20^th October during the second incident.

In the trial, the Applicant gave evidence. He denied any sexual touching or penetration on either occasion. He said that there had been two incidents, as alleged, where he had been out drinking with the Complainant and others. That those incidents had both resulted in them adjourning to rooms on the military establishment where contact did take place, but it was not physical or sexual contact. He accepted, as he had to, that his DNA was found on the swabs, but he suggested that that may have been due to some form of indirect transfer. That suggestion was not, as we have said already, supported or explained in any way by any expert witness. The Board, therefore, had no evidence to enable them to say how it might have been that the Applicant’s DNA was found on the Complainant’s high vaginal swab if he had not penetrated her with his fingers. Nevertheless, that was the best he could do by way of an explanation for the findings of the experts.

The Board had an abundance of character references which attested to the Applicant’s good character and good behaviour.

There is one other aspect of these proceedings to which we should refer before turning to the ground of appeal and our decision on it. During the course of the proceedings an application was made on behalf of the Applicant, pursuant to Section 101(a) and (b) of the Criminal Justice Act 2003 to adduce evidence about occasions when it was said the Complainant had made false allegations of sexual misconduct against other male servicemen. In short summary, the first of these two occasions was said to have occurred in May 2023, when she alleged that a male corporal had exposed his genitals to her after taking her back to his room following a night out. That complaint was referred for consideration of prosecution to the Service Prosecuting Authority but no charge was directed.

Secondly, in 2021, the Complainant and two other females alleged that another male person, in this case a recruit, had sexually assaulted them by touching their breasts and bottoms. The Complainant had provided a statement, but she subsequently confirmed alongside another of the complainants that she did not wish to pursue the complaint. Again, in relation to that matter the Service Prosecuting Authority did not direct any charge. The application was on the basis that there was a proper evidential basis on which the Board, if hearing this evidence, could conclude that the Complainant had deliberately concocted allegations against the male corporal and the male recruit respectively. If they did so, conclude then that would be relevant to her credibility.

That was contested and the Assistant Judge Advocate General ruled that no such evidence or cross-examination should be permitted because there was no sufficient evidential basis on which the Board could conclude that either or both of those two allegations had in fact been fabricated or deliberately falsified.

“There was [said the Assistant Judge General] no evidential foundation whatsoever from which a fair inference could be drawn that the Complainant had a tendency to tell lies about being the victim of misconduct at the hands of male servicemen.”

The Ground of Appeal is set out in the documents prepared by Mr Martin, counsel for the Applicant, who has appeared and made oral submissions before us and who also represented the Applicant at the Court Martial. It focuses entirely on the misconduct, as it is described, of the service police in failing to investigate the first incident. It is said that this failure resulted in the Applicant’s convictions in relation to the second incident unsafe.

These points are made: first that there was no interview of the Applicant at any time in relation to the first incident. Had that happened the matter could have been put to him, and he would no doubt have produced his photographs long before trial and the difficulty over the originally alleged date would have emerged at that time.

Secondly, it is said that the advice which the Applicant had received as to how the trial should be conducted, would have been different if those giving that advice had known that the allegations in relation to the first incident were “completely false”. Had they known that, this would have been a third incident on which reliance could have been placed of a “completely false” allegation having been made by the Complainant, this time in relation to the Applicant himself. It might also, it is submitted, have led to a more forthright attack on the Complainant in support of the suggestion that in some way she might have been instrumental in ensuring that the DNA of the Applicant was there to be found when the swabs were taken on 22^nd October 2023.

It is said that the service police, and the officer in charge of the case in particular, were guilty of misconduct in failing to watch the ABE before designing their investigative strategy for this case and taking necessary steps which would have been taken if they had done that. The most significant additional step, which was not taken which it is said should have been, was the timely interview of Private B. Private B, it will be recalled was present in the living accommodation where the first incident took place. It is however the case that according to the Complainant he was not present in that accommodation precisely at the time when it is alleged to have taken place having gone instead to the toilet at that time.

He was not spoken to until 19^th March 2025, some 17 months after the alleged incident. By that stage he could remember nothing about the night during which it is said the first incident had taken place. The point is made that he was asked about 13^th October rather than the correct date, 6^th October. The suggestion being made that perhaps, if the right date had been put to him, he might have been able to say something about what had happened then. Finally, the point is made that there was never any investigation of anybody’s mobile phone in relation to what might or might not have happened on either 6^th or 13^th October. That potential investigative avenue was therefore not taken.

In written and oral submissions in response, Colonel Cotton, on behalf of the Service Prosecuting Authority makes the point that the Charges in respect of which these complaints are made, were Charges 6 and 7 of which the Applicant was acquitted. Any prejudice that he may have suffered as a result of an inadequate investigation of those Charges has therefore caused him no actual prejudice because there has been no conviction as a result of that allegedly defective investigation. Colonel Cotton also submits that any conclusion about what Private B might have said at any earlier stage in the investigation is entirely speculative.

Insofar as there is an attack on the Assistant Judge Advocate General’s decision in relation to the bad character application Colonel Cotton submits that the Assistant Judge Advocate General was correct and there is, in any event, no frontal attack on that decision.

First we should record that there is no direct attack on the Assistant Judge Advocate General’s decision to exclude the non-defendant bad character evidence in relation to earlier false complaints allegedly made by the Complainant.

We consider first that the Assistant Advocate General was plainly right in the decision that he took on that application and that Mr Martin, on behalf of the Applicant, is also clearly right not to put forward a direct attack on that decision as part of his grounds of appeal.

The Assistant Judge Advocate General did not have available to him, at the time when he took that decision, the judgment of the Court of Appeal Criminal Division in R v Hurley 2025 EWCA Crim 642. That decision was in fact handed down at around about the same time as this trial was proceeding in this jurisdiction. In it, the Court of Appeal Criminal Division examined the earlier authorities about the circumstances in which evidence of previous false complaints of sexual offending against a complainant can be admitted.

There is examination of the concept of a “proper evidential foundation” for the proposition that those earlier complaints were false. In particular, at paragraphs 49 and 90 the Court of Appeal examine the extent to which, first of all, it can be assumed that an allegation is false because it was not pursued. The Court of Appeal emphasised that while each decision is fact specific, as a general rule, it certainly cannot be assumed from the mere fact that a complainant chose not to pursue a complaint through to the conclusion of a criminal trial, that what she had said in the first instance was fabricated.

Secondly, in dealing with the fact that a particular person may have made a number of different complaints against different people on different occasions, the Court of Appeal again made the point that each decision is fact specific. It also made the point, as a general observation, that depending on the particular circumstances in which a particular person finds him or herself living, they may or may not be exposed to the risk of frequent sexual offending to a greater extent than may be common in the general population. Hurley concerned a young a vulnerable girl who was living effectively on the streets in circumstances where she was very vulnerable to sexual predation. In those circumstances the fact that she may have made a number of allegations of rape against a number of different people did not in any sense provide a proper evidential basis for concluding that any or all of those allegations were false.

Had he had that decision available to him, we are sure that the Assistant Judge Advocate General would have been even clearer in the very clear conclusions to which he came on the merits of the application which he had to deal with.

Secondly, we deal with the suggestion that the conduct of the investigation by the police amounted to “misconduct”, as it is characterised by Mr Martin. In one sense, for our purposes, it does not really matter. The fact is that there was no investigation in relation to the first incident, except to the extent that we have already recorded. The consequences of that were for assessment by the Board. The disciplinary consequences of it, for the officer or officers concerned, will be a matter for other processes and we have been made aware that a number of complaints have been made to at least two regulatory bodies which are in the process of being investigated and dealt with.

This Court, the Court Martial Appeal Court, is not a disciplinary or regulatory body and is concerned with the safety of the convictions which were returned. So far as that is concerned, as we have said, the failure to investigate the first incident was a matter which was fully investigated before the Board. It was the subject of a direction in due course by the Assistant Judge Advocate General who directed the Board in terms that if they considered that the Applicant may have been prejudiced as a result of the want of a proper investigation into those allegations against him, then they should take that into account in deciding whether they were proved. It may very well be that in deciding to acquit the Applicant, of the allegations in relation to the first incident they took that warning very much to heart. This does not mean that they found that the evidence of the Complainant about the first incident was “completely false”, such that it might add to the evidence of false complaints made by her.

It is also the case that in respect of the allegations arising out of the second incident where there were acquittals the Board scrutinized the Complainant’s evidence with a degree of caution. They convicted the Applicant in respect of an allegation which was supported by DNA evidence of which there was no other remotely credible explanation other than that the Applicant had offended in the way represented by the conviction which the Board returned. This was important to the Complainant’s credibility on the other allegations she made which resulted in amended charges being considered.

In all of those circumstances we are unable to conclude that there is any arguable point available to this Applicant which might result in his conviction behind held to be unsafe by this Court. The result of all that is that we refuse his application for leave to appeal in order to argue the ground which has been put before us. That Application is dismissed.