R v Ben Fitton

The applicant applies for leave to appeal against his conviction and sentence for rape and other offences against a woman we shall refer to as C. The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, no matter relating to C shall be included in any publication during her lifetime if 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.

On 27 September 2024 in the Crown Court at Manchester, following a trial before HHJ Horgan the applicant was convicted of five offences: count 1, controlling or coercive behaviour; count 2, unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861; count 5, oral rape on an occasion in March 2023, and non-fatal strangulation and vaginal rape in May 2023, which were counts 9 and 11 respectively.

The applicant was acquitted of a number of other counts, including rape, attempted rape and stalking. He was sentenced to an extended sentence of 21 years, comprising a custodial term of 18 years and an extended licence period of three years. The applicant originally sought leave to appeal against conviction on the basis of a ground relating to a potential jury irregularity, which is no longer pursued. The issues raised by the original ground caused the Registrar to refer the application to the full court. She referred the application for leave to appeal sentence to be considered at the same time. The full court, (Holroyde LJ and Goss J and McGowan J), heard the case in May 2025. By then the applicant had dispensed with the services of trial counsel and his solicitors and was representing himself. He wished to raise new grounds of appeal. Mindful of the applicant's mental health issues, the court adjourned the application and directed that fresh counsel be appointed. Mr Jarvis KC was instructed and prepared the amended grounds of appeal against conviction in accordance with the court's direction. He has appeared to make oral submissions on behalf of the applicant today and we are extremely grateful to him for stepping in in the way he has and for the focused way in which he has presented his arguments.

It is upon that basis that the matter now comes before us. The applicant requires a short extension of time in relation to his application for leave to appeal conviction and permission to amend his grounds to rely upon those now before us. We grant the necessary extension of time and permission to amend the grounds, and have gone on to consider the merits of application for leave in relation to both conviction and sentence.

Factual summary

A short period into the relationship C gave up her own accommodation and moved in with the applicant. At the end of 2021 she was admitted voluntarily to hospital following an attempted suicide. She was discharged in February 2002 and moved to supported accommodation in a mental health residential facility where she remained for the rest of the relationship.

The prosecution case was that the relationship was characterised by the applicant's extreme jealousy, abusive and manipulative conduct, threats, humiliation and physical and sexual violence. The Crown relied on a course of conduct which included monitoring C, isolating her from family and friends, constantly accusing her of sexual infidelity, threatening to disclose private photographs, threatening to harm her and members of her family and using her relationship with her son as a means of control.

Count 1 concerned controlling or coercive behaviour throughout the relationship, including incidents in which the applicant looked through the claimant's phone, slapped her and obtained access to her Ring Doorbell. The applicant moved her away to North Wales, where C recalled being pushed over, dragged by the collar, kicked and one particular incident where a knife was held against her throat and she was chased. C was prevented from showering and undertaking other personal care matters unless approved by the applicant. The intimidation and threats continued after C was sectioned in hospital and later in supported accommodation. After the applicant was barred from the supported accommodation for his behaviour, he would constantly video call C to monitor her actions. If C attempted to end the relationship, the applicant would threaten to be violent to her or her family, including threatening to stab her young son. The judge, sentencing the applicant, described his conduct as persistent, degrading and intending to maximise C's distress.

Count 2 arose from an incident on 16 October 2022. C left her son's birthday meal after pressure from the applicant. During an argument the applicant pushed her with such force that she sustained a cut to her head and a deep wound to her knee, leaving the kneecap visible. Police were called by onlookers. C initially supported the applicant's account that she had fallen and went to hospital to receive treatment. In her victim personal statement C described that after the injury she could not wash, dress fully, go to the shops or sit on the floor to play with her son and had to rely on others for support. She had to wear a brace for some time and continued to suffer pain at the time of trial.

Count 5 concerned an incident in March 2023. The prosecution case was that the applicant required C to attend his address and perform oral sex the minute she walked through the door. When she refused, he pushed her to the floor multiple times and when she refused again, the applicant threatened to pour boiling water from a kettle over her face. C then complied and performed oral sex while crying which angered the applicant and caused him to lose his erection.

Counts 9 and 11 concerned an event in May 2023, when the applicant and C were staying overnight at a friend 's house. After C returned from the bathroom, the applicant accused her of having sex with someone else in the house. In the kitchen he put his arm round her neck and choked her. C described being unable to swallow, her eyes watering and starting to lose consciousness. She bit the applicant's arm which stopped the choking. He then pushed her forward, pulled down her underwear and vaginally raped her until he ejaculated.

At sentence the judge found that the offending had had a shattering effect on C's self-esteem, appearance and mental health and had separated her from family, including her son. The Pre-sentence Report assessed the applicant as presenting a high likelihood of further domestic abuse and a high risk of serious harm to known adults, particularly future partners. The judge took account of the applicant's bipolar affective disorder, his poor compliance with medication and engagement with professionals, his use of alcohol and drugs and his lack of relevant previous convictions and his poor victim awareness.

The judge concluded that the appropriate sentences for the individual offences were 3 years' imprisonment, concurrent, on count 1, 18 months on count 2, 10 years, 6 months on count 5, 18 months on count 9 and 11 years on count 11. Standing back and assessing the totality of the offending, the judge concluded that the appropriate total sentence was 18 years' imprisonment. Having concluded that the applicant met the statutory test for dangerousness, the judge imposed an extended sentence, comprising a custodial term of 18 years and an extended licence period of 3 years on count 11, with all other sentences ordered to run concurrently.

Summary of the grounds of appeal

Ground 5 concerns count 9. The applicant submits that the judge failed adequately to explain the requirement that the applicant intentionally strangled C and failed to direct the jury on whether any act might have been lawful if done to prevent C from harming herself.

The grounds of appeal against sentence are that the judge adopted too high a starting point on the rape counts, failed properly to apply the principle of totality and erred in finding that the applicant met the statutory test for dangerousness. That ground was further developed by Mr Jarvis today, who argued that even if that test was met the judge should have exercised his discretion so as not to pass an extended sentence, given the length of the custodial sentence that he intended to pass.

The appeal against conviction

The first criticism advanced on behalf of the applicant in the written grounds is that the judge directed the jury that the evidence was relevant to whether the applicant had a tendency to be verbally aggressive and abusive to women when the allegation against him on count 1 was controlling or coercive behaviour rather than verbal abuse. It is contended that evidence that was capable of showing that the applicant had been verbally abusive towards a previous partner could not without more establish a tendency to commit offences of the kind with which he was charged.

Having considered the written and oral directions given by the judge, Mr Jarvis accepted in his oral submissions that the tendency to which the judge was referring could be seen as a tendency to behave in a controlling and coercive way, given the way in which the direction unfolded.

Taking the written directions which were repeated in very similar terms in the oral summing-up, the judge said at paragraph 116 of the written directions:

The next paragraph, paragraph 117, which followed immediately in the judge's oral summing-up, said this:

In our judgment, in referring to the jury needing to decide whether the evidence showed the applicant had a tendency to behave in this way, the judge was referring back to what he had just said, namely that the defence submit that the evidence did not establish the defendant had a tendency to act in a controlling and coercive way.

The judge then completed his direction in the standard way, making it clear that it was for the jury to assess whether the evidence did provide support for the prosecution case and to what extent and cautioning about convicting wholly or mainly because of it. The judge stressed that there was no evidence the applicant had been physically or sexually violent to other women and directed them that they must not use the evidence to conclude that he had a propensity to commit physical assault or sexual offences.

Mr Jarvis argued that even if the tendency to which the judge was referring was indeed a tendency to behave in a controlling and coercive way, that was not sufficient since that was but one element of the offence with which the applicant was charged in count 1. As he pointed out, the route to verdict set out five separate elements of that offence. However, on any basis, whether the applicant behaved in a controlling and coercive way towards C was an important matter in issue in the case within the meaning of section 101(1)(d) of the 2003 Act. Indeed, it could be said to be the central issue on count 1.

The behaviour which the evidence admitted went towards was capable of being considered coercive and/or controlling, and therefore, could demonstrate a propensity to act in that way and therefore was material evidence in relation to that element of the offense. Whether or not it did demonstrate such a propensity was firmly a matter for the jury, as the judge's written and oral directions made clear. The fact that the applicant has admitted that he had been verbally abusive towards C and other former partners on occasions did not detract from the relevance of that evidence. There were many allegations of verbal abuse and threats which were not admitted. In our judgment, the way in which the Judge directed the jury on this issue was appropriately tailored to the facts and to consideration of count 1 only. We find no fault with those directions.

It was also said in the written grounds that the judgment erred in directing the jury that the bad character evidence was capable of assisting the jury in deciding whether the applicant was telling the truth or not about what had happened between him and C. We note that Mr Jarvis did not press that aspect of this ground before us today. However, our view is that there is no merit in that aspect of the ground. Having explained to the jury that one of the reasons the bad character evidence was admitted was because the applicant had made an attack on C's character, the judge directed them that they must bear in mind that just because he had previous convictions did not mean he was telling lies. His direction reflected the standard compendium direction for evidence admitted under section 101(1)(g). It reminded the jury that the fact that he had previous convictions did not necessarily mean the applicant was lying, that they had to decide whether the convictions helped them when considering whether he was telling the truth and that they must not convict him simply because he had been convicted in the past.

In our judgment, there is nothing arguable in this ground.

Ground 2

Concerns the absence of a specific direction on the word "maliciously" in relation to the offence under section 20 of the Offences Against the Person Act 1861 which was charged as count 2. The judge told the jury in this case that the word "maliciously" adds nothing in relation to count 2. The judge identified that the real issue for the jury was whether they were sure that the applicant pushed C to the ground causing her injury as the Crown alleged or whether C tripped and fell as she ran towards him, as the applicant maintained. The judge told the jury that the word "maliciously" added nothing to the case. Mr Jarvis's point on ground 2 distilled into an argument that a push, even a forceful one, does not inevitably carry the realisation that there may be a fall thereby causing an injury. The judge's directions made plain to the jury they had to be sure of C's account before convicting. That was reinforced by the Route to Verdict. The applicant's case was not that he pushed C but did not realise that some physical harm might result. It was that she accidentally fell. In R v Mowatt [1967] EWCA Crim 1, Diplock LJ explained that where the prosecution case, if accepted, shows a direct assault which any ordinary person would be bound to realise was likely to cause some physical harm and that the defence is not that the accused did not realise that consequence but that he did not do the alleged act or relied on some other offence, it is unnecessary to deal specifically with what is meant by the word "maliciously". Mr Jarvis accepted that point of principle and acknowledged that there were many cases in which an offence of this nature would not call for a specific direction on "maliciously", but said in this case such a direction was required.

In our judgment, it is plain that forcibly pushing someone over might, indeed is likely, to cause that person to fall thereby causing some physical harm. That is sufficient to meet the mental element of the section 20 offence. In our judgment, there was no need for the specific direction contended for. The judge had appropriately directed the jury in light of the issues they had to determine, and this ground is therefore not arguable.

Ground 3

The applicant's argument on this ground centres around one particular aspect of the judge's directions. That is set out in paragraph 52 of the written directions, and again, repeated in very similar terms in the oral summing-up. It is argued on behalf of the applicant that paragraph 52 and the direction contained therein could have left the jury with the impression that if they were not sure that a reasonable man would have believed that C was not consenting, then they must be sure the applicant's belief in C's consent was not reasonable.

Mr Jarvis does acknowledge that the judge went on, having give that direction, he say at paragraph 53.

The judge then concluded that section of his directions at paragraph 54, "Please go to Route to Verdict."

Mr Jarvis maintained that despite the unimpeachable nature of the Route to Verdict and the contents of paragraph 53, nevertheless, paragraph 52 was apt to confuse the jury.

We do not accept that argument. In our judgment, the jury were given appropriate directions on consent and very clear questions in the Route to Verdict, which were framed appropriately, having regard to the issues in the case. Paragraph 52 cannot be read in isolation. Looking at it in context, both having regard to the issues in the case and to the directions that the judge gave as a whole, we do not think that any confusion arises at all.

In those circumstances, ground 3 is not arguable.

Ground 4

Counts 5 and 6 reflected allegations of oral and vaginal rape said to have been committed on the same date. The prosecution case was that having orally raped C, the applicant turned her around and vaginally raped her from behind.

Similarly, counts 10 and 11 concerned oral and vaginal rape alleged to have occurred on another day with one immediately following on from the other. The applicant contends that it is illogical for the jury to have convicted the applicant of the oral rape but acquitted him of the vaginal rape on the first occasion and to have convicted only of the vaginal rape on the second occasion. The written submissions argue that no reasonable jury could have formed the view that either C had consented to one form of sexual activity but not the other or that the applicant had reasonably believed that C was consenting to one form but not the other. Mr Jarvis maintained in his oral argument that there was no proper evidential basis for drawing a distinction between these two pairs of counts.

As to counts 5 and 6, the basis on which the jury may have reached the verdicts they did, in fact emerges quite clearly from questions asked by the jury while they were deliberating. As appears from the summing-up, C was cross-examined on the basis that she did not complain of vaginal rape when she first reported the events of that day. On the day before they returned their verdicts the jury sent a note to the judge asking about that evidence. The judge reminded them of the cross-examination. Later that day, the jury sent a further note, seeking clarification of whether a log entry was the first report or whether there had been an earlier report. The judge confirmed that the log in question was the first report. The judge also gave the jury further clarification of C's evidence in cross-examination based upon a note which had been agreed by trial counsel. Shortly after they received that clarification, the jury sent another note. The contents of that note do not appear on the record, but the judge then gave a majority direction thereafter. The jury then returned their verdicts, which included majority verdicts on counts 5 and 11.

It is, therefore in our view, quite apparent that the jury were giving careful consideration to the individual counts and to the relevant evidence. It can properly be inferred that the different verdicts they reached on counts 5 and 6 have nothing to do with treating the issue of consent differently in relation to each. There was a logical evidential basis for drawing a distinction between the two counts, which they tested through the questions that they asked in their notes.

As to counts 10 and 11, which were alleged to have occurred on the same date as count 9 at a friend's house, C was asked to deal in detail about the events of that day in her ABE interview. At one point she said, as is recorded at paragraph 50C of the summing-up as it is recorded:

While the jury did not ask for any specific clarification of the evidence surrounding counts 10 and 11, as they had done in relation to counts 5 and 6, there is absolutely no reason to think that they did not apply the same careful consideration to the individual counts relating to that date.

There was an evidential basis, again unconnected to the issue of consent, for drawing a distinction between the vaginal rape and the oral rape, namely the element of uncertainty in C's account as to whether the oral rape in fact happened.

There is, in our judgment, certainly no basis upon which the applicant could discharge the burden on him to show that no reasonable jury could have reached the verdicts that they did in relation to these two pairs of counts. There is, therefore, no merit in ground 4.

Ground 5

The judge made clear that the real question was whether the Crown had proved so that the jury were sure that the applicant intentionally strangled C in the way that she alleged. The judge accordingly posed a single question in relation to count 9, set out in the Route to Verdict as follows: "Are we sure that D intentionally strangled C?".

The applicant submits that the judge should have directed the jury about what "intention" means in this context. Further, it is submitted that there was a need to direct the jury to consider whether the act of strangulation was or might have been lawful if the applicant was acting to prevent C from causing serious harm to herself.

In our judgment, the judge did as he was required to, namely appropriately narrowing the issues in a way that was consistent with the evidence given at trial. The directions given and the question posed in the Route to Verdict must be seen in that context. We do not think that there was a need for further direction on these facts. Given the way in which the judge directed the jury, he made it clear to them that they could only convict on this count if they accepted that the applicant strangled C in the way in which she had said and if they rejected, therefore, his account.

We see no arguable defect in the judge's direction. The intention required was an intention to strangle, which is an ordinary English word. There was no proper evidential basis for leaving defence of another to the jury because the applicant was not accepting that he had strangled C. He did give an account, we accept that he did give an answer, to cross-examination that if what he described was strangling, then he had done it, but the reality is that the jury were left in no doubt that there were two stark factual accounts for the jury to consider, one which did amount to intentional strangulation and the other which clearly did not. The judge appropriately identified the issue for them, and in those circumstances, we consider that this ground is not arguable.

Conclusion on the application for leave to appeal against conviction

The appeal against sentence

For count 1 the judge placed the offence in culpability category A, identifying that the applicant had maximised C's distress and used multiple methods of control, the behaviour had persisted over a long period of time, and there was attempt to humiliate and degrade. He made some reduction to reflect the applicant's own mental health. He assessed harm as category 1, because C suffered severe psychological harm. He took a starting point of two years, then increased the sentence to three years after taking account of aggravating factors, including steps to prevent reporting, C's particular vulnerability, the domestic context and the impact on C's young son. He also took account of the absence of relevant previous convictions.

For count 2, the judge assessed culpability as B and harm as category 3. He adopted a starting point of 12 months and increased the sentence to 18 months, taking account of the domestic context, the history of abuse and steps to prevent reporting, balanced against the absence of relevant previous convictions and the applicant's mental health difficulty.

For count 5 the judge assessed culpability as A by reason of previous violence, and harm as category 2. Having regard to C's particular vulnerability and the severe psychological harm suffered, he adopted a starting point of 10 years, with a range of 9 to 13 years. He treated the threat to pour boiling water over C and the domestic context as aggravating factors and the absence of relevant previous convictions and the applicant's mental health as mitigating factors, arriving at a sentence of 10 years, 6 months.

For count 9 the judge assessed harm as category 2 and culpability as B, with a starting point of 18 months. He took account of the domestic context and history of violence, and again, of the absence of relevant previous convictions and the applicant's mental health difficulties.

For count 11 the judge again assessed the rape as A2. He identified the domestic context, ejaculation and strangulation as aggravating factors, and the absence of relevant previous convictions and the applicant's mental health difficulties as mitigating factors. The sentence on that count was, he therefore concluded, 11 years before the judge addressed totality.

We consider that the judge correctly categorised all offences. We are unable to accept the argument advanced in the written grounds that the rapes fell into category 3 harm. Indeed, that was not a point pressed by Mr Jarvis today. There were, in fact, multiple category 2 factors present. C was particularly vulnerable, suffered severe psychological harm and the use or threats of violence, including the threat to pour boiling water from a kettle over C in count 5 and the choking before raping her in count 11, went beyond what is inherent in the offence.

In those circumstances, it is at least arguable that the sentences the judge identified on the rape convictions might have been placed further up the relevant bracket than the judge in fact did in providing his breakdown.

We do accept that on the face of it the increase on count 11 to reflect totality and produce the overall custodial term was substantial. However, what was required of the judge was to stand back and look at the seriousness of the offending overall. The judge was sentencing for two years of serious controlling or coercive behaviour and for sexual and physical violence on occasions within that period. As we have said, in relation to the rapes, more than one factor relevant to category 2 harm was present, so that it was open to the judge to adjust the starting point upwards within the applicable range.

In those circumstances, we are not persuaded that it is arguable that the final custodial term arrived at was manifestly excessive. Nor, in our judgment, is there any arguable error in the finding of dangerousness. The judge was entitled to rely on the applicant's attitude towards women, his very significant issjes with paranoia and jealousy, the assessment in the Pre-sentence Report, the applicant's failure to take medication and the circumstances of the offending. Those matters were sufficient to justify the conclusion that he presented a significant risk of serious harm to members of the public, particularly future partners. Having reached that conclusion, the judge was entitled to find in all the circumstances of this case that despite the length of the custodial sentence which he intended to impose on the applicant, that an extended sentence was required.

For those reasons the application for leave to appeal against sentence is also refused.