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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> BLV, R. v [2025] EWCA Crim 257 (13 March 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/257.html Cite as: [2025] EWCA Crim 257

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HHJ Heather Lloyd
Case No: T20227057

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2025

This judgment was handed down remotely at 11.00am on 13^th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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 the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

MRS JUSTICE STACEY:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the applicant's offending. Accordingly, this judgment is to be anonymised.
2. On 9 August 2023, in the Crown Court at Preston the applicant (then aged 59) was unanimously convicted of 10 child sex offences committed against his nephew, who was born in January 1994, between May 2004 and January 2010. There were four counts of causing a child under 13 to engage in sexual activity (Counts 3 - 6), two counts of causing a child to watch a sexual act (Counts 1 and 2) and four counts of causing a child to engage in sexual activity (Counts 7 – 10).
3. The applicant received a total sentence of 12 years imprisonment made up of concurrent sentences which ranged from 26 weeks to 12 years. For each of counts 3, 4 and 6, which were the most serious of the offences, he received sentences of 12 years. Sentences of 5 years were imposed on counts 5, 6 and 8 and sentences of 26 weeks immediate custody were imposed for the remaining counts of 1, 2, 9 and 10.
4. The applicant raises two grounds of appeal which were lodged 204 days out of time. Ground 1 has been referred to the full court by the single judge for a rolled-up hearing. It argues that in counts 3, 4 and 6 there was no evidence that the complainant was under the age of 13 when the acts took place which was a necessary ingredient of each count. The jury could not have been sure that the offences had been committed leading to unsafe convictions on those counts.
5. Ground 2 argued that the consequence of the jury's unsafe conviction of the applicant on counts 3, 4 and 6 impacted on the soundness of the convictions on the other counts. Since the jury could not have been sure on counts 3, 4 and 6, there could be no reasonably held confidence that the jury had followed the judge's directions of law properly on all the other counts on the indictment and their verdicts on those counts were therefore also unsafe. Mr Vullo KC relied on the case of R v BRB [2022] EWCA Crim 1202 where a lack of evidential basis for conviction on some counts had led to unsafe convictions on the remainder. Permission on ground 2 was refused by the single judge as having no reasonable prospects of success. The applicant renews his application for leave on ground 2.
6. The prosecution case was that over a six year period, starting when the complainant was 10 years old, the applicant had encouraged and caused him to engage in sexual activity in the presence of and sometimes with the applicant's son, who we will refer to as A, who was two years older than his first cousin. Count 1, causing a child to watch a sexual act contrary to s.12 (1) and (2) Sexual Offences Act 2003 ("the Act"), was of intentionally causing the complainant aged 10 to 12 years, to watch pornography for the applicant's sexual gratification and count 2, charged as the same offence, was of causing the complainant to watch pornography when he was a child between the ages of 13 to 15. The offence alleged in count 5, causing a child under 13 to engage in sexual activity (contrary to s.8(1) and (2) of the Act) was of causing the complainant, a child under the age of 13, to masturbate his own penis.
7. Counts 3, 4 and 6 were also allegations of sexual abuse committed when the complainant was under 13 (charged under s.8(1) and (2)) of causing the complainant to perform oral sex on A (count 3), causing A to perform oral sex on the complainant (count 4) and causing the complainant to masturbate A (count 6). There were further counts of causing the complainant to engage in the same sexual activities when he was a little older between the age of 13 to 15 reflected in the particulars in counts 7 - 10 charged under s.10 of the Act. The indictment was thus properly drafted to identify events said to have occurred when the complainant was under 13 separately to those committed between the ages of 13-15. The same forms of abuse were said to have occurred in both time periods. The offences were not charged as specimen offences although the prosecution case was that the offences had occurred on multiple occasions over the six year period.

The evidence and the trial

8. The prosecution relied on the complainant's evidence in his Achieving Best Evidence video recorded police interview ("ABE") in 2021, his oral evidence at trial, his disclosures to his partner which started after A had committed suicide in June 2018 and his disclosure to his parents on the day he informed the police.
9. In his hour and a half ABE interview the complainant described how it started when he was around 10 years old when the applicant would come into A's bedroom in the evening when he was staying over with his cousin and show them pornography on a DVD he brought into the room with him. A would masturbate himself and the applicant encouraged the complainant to do the same. The offending progressed as time went on with the applicant encouraging the boys to "do stuff" to each other while watching the DVDs he was showing them. The complainant was unable to ejaculate at that age and the applicant encouraged A to help him by manually masturbating his cousin and performing oral sex on him and vice versa. As time went on the complainant was able to ejaculate. The offending stopped when the complainant was a little older. He spent less time in his cousin's house and they developed different friendship groups at school, although remained friends and in touch until A's death.
10. In his ABE the complainant was asked by the police about when the oral sex and mutual masturbation began. At one point he says it began when he was in year 7 or 8 at school which would have been when he was aged 11 to 13. At other points he said it occurred when was when he was a bit older, aged "13, 13 or 15". The offending first began in A's bedroom in the evenings and continued in the front room during the daytime when only the applicant and the two boys were in the house and the applicant would play the DVDs on his new large wall mounted TV. At points in the ABE the complainant describes the same things happening in the front room as had happened upstairs and at other parts of the interview he states that the first time the oral sex and mutual masturbation occurred was in the front room. He described that the first time he was able to ejaculate happened some considerable time after his cousin had started masturbating him and performing oral sex on him. In cross-examination at trial the complainant stated that the video watching and offending ended when he was 13 or 14. In his evidence in re-examination at trial he confirmed that everything he had said in the disclosures he had made to his partner and parents was true.
11. The complainant's partner gave evidence at trial. In cross examination she was asked what the complainant had told her had happened. She explained that he had given her lots of details and different occasions when it had happened, sometimes in A's bedroom, sometimes in the front room. He reported that it usually happened when the applicant and his wife had come home from being out drinking and would go to bed. Not long after, the applicant would appear in A's bedroom and told the boys to physically touch each other's private parts. He would tell them to "finish each other off". She recalled that the complainant had told her the first time that he had ejaculated was on one of those occasions when he was quite young, 12 or something, she was not sure exactly of the date.
12. The complainant's father also gave evidence. He had understandably not wanted to push his son into giving more detail than he wished to describe, but explained that the complainant had told him that from a very young age, when he was around 8 years old, the applicant had shown the two boys pornography and that had progressed to telling them to do things to each other. He would go into A's bedroom and wake them both up to "do things together."
13. After A moved out of the small bedroom next to his parents into his older sister's room, the abuse took place in the front room in the day time and no further incidents were given of the complainant staying over and the abuse occurring in A's new room at night.
14. The applicant's defence was of denial. He categorically denied ever showing pornography to the boys or encouraging them to engage in any sexual activity whatsoever. The complainant never stayed over at his house and the alleged incidents never took place. He worked long hours as a gardener and was never home during the day time for the front room incidents to have occurred. He did not know why the complainant may have made up the allegations or told others about them. At trial the complainant's age at the time of counts 3, 4 and 6 was never raised as an issue between the parties. The case was prosecuted and defended on the basis that if the complainant's account was accurate then each of the offences had been made out.
15. In her legal directions the judge explained to the jury that the indictment spelt out each ingredient on each count that the prosecution must prove, and that the jury must be sure, that the incidents occurred on the dates alleged in the indictment. A separate treatment direction was given. She then went on to say that:

"in relation to all counts….there is no doubt that during the dates in the particulars of the offence…the complainant is either under 13 or under 16".

16. As the age of the complainant at the time of counts 3, 4 and 6 was not understood to be an issue by anyone at the time – neither the prosecution, the defence or the judge - the judge did not trouble the jury with the specific detail of what the complainant had said in his evidence about his age when his uncle had directed him to perform the acts set out in those counts. The jury was therefore under the impression that they could be sure of his age at the material time. No route to verdict was provided to the jury.

Steps taken to appeal

17. After his conviction on 9 August and sentence on 12 October 2023 the applicant instructed new lawyers. His wife had an initial meeting with solicitors Twelve Tabulae on 23 January 2024 and they and Mr Vullo were formally instructed on 7 February 2024. A transcript of the summing up was requested from the court on the same day and on the same day that it was received (27 February 2024) a transcript of the complainant's evidence was requested to be provided within 24 hours at additional cost. When it was not received overnight, chasers were sent until it was received on 11 March. Mr Vullo held a conference with his client within 2 days, privilege was waived and the complainant's trial solicitors and counsel were asked for their comments on the proposed grounds of appeal under the McCook procedure. Once trial counsel had provided his response on 24 March 2024, grounds of appeal were lodged at the Court of Appeal on 28 March 2024.
18. In his McCook response defence trial counsel said that on re-reading the complainant's ABE, he now realised that the transcript was ambiguous and the complainant had given various dates for when the touching of each other had occurred ranging from year 7 (which would be when the complainant was 11 to 12) to the age of 13 or 14. He accepted that the point had not been taken at trial as the focus was primarily concerned with the dispute of fact as to whether anything at all sexual had taken place at any age. He confirmed that no issue was taken at the trial that had the allegations in counts 3, 4 and 6 been true they had occurred after the complainant had reached the age of 13 and therefore could not amount to offences under s8 of the Act. He accepted that the issue should have been addressed given the state of the prosecution evidence.

The arguments

19. Mr Vullo submitted that from a careful reading of the complainant's ABE there is no evidence that the oral sex and mutual masturbation occurred before his 13^th birthday. When asked directly by the police officer during the ABE how old he was when it took place he said that he was 13 to 15 years old, which was the clearest part of his evidence.
20. As to Ground 2, Mr Vullo submitted that this case was on all fours with R v BRB a case in which he had also appeared for the appellant. In that case the appellant was convicted of 16 sex offences against his step daughter when she was 8 to 10 years old. The defendant accepted that she may have been sexually abused as alleged but that if it had, he was not the perpetrator. It was her father who had committed the offences. Similar grounds of appeal were raised to those in this case: that four of the convictions were unsupported by the evidence and in light of the jury's convictions on those four counts there could be no confidence that the jury had followed the judge's directions in law properly, or at all, on all the other 12 convictions rendering them unsafe. In her ABE interview in that case the complainant had given evidence which supported all 16 counts. The case was opened by the prosecution on the basis of the ABE. However her ABE was not shown to the jury as her evidence in chief, but rather she gave oral evidence in chief before being cross-examined. In her oral evidence she did not in fact give evidence to support 4 of the counts. It was not spotted either by trial counsel, the judge, or by appeal counsel, who had applied for leave on other grounds. It was only identified by the Registrar following refusal by the single judge when the application for leave was renewed. The Registrar drew the issue to the attention of the parties, leading to further grounds of appeal additional to those originally drafted. It was conceded by the prosecution that there was no evidence either directly or inferentially to support the four impugned counts. The Court of Appeal therefore found the conviction on those counts to be unsafe. The court noted that one was a very specific count alleging particular behaviour.
21. The court's conclusion on the wider argument that the four unsafe convictions tainted all the convictions, was as follows:

"18. Whilst it is recognised that the learned judge correctly directed the jury that there should be separate treatment in relation to each count on the indictment, and whilst he also correctly identified the burden and standard of proof, and whilst he made reference in his directions to a distinction between the evidence and points made by counsel, we are left with only one conclusion, which is that either the jury have in relation to those counts treated the opening as evidence rather than submission, or treated the case as a whole as "all or nothing" (essentially focusing on stepfather versus father as perpetrator) rather than following the judge's direction about proper treatment of each count and the evidence in relation thereto. We say that because if they had followed the learned judge's evidence [sic – directions was presumably meant] there could only have been one verdict in relation to counts 3, 7, 8 or 16. On any view therefore, the jury failed to follow the learned judge's directions of law on multiple counts (that are known about).

19. In those circumstances, it seems to us that, notwithstanding that there was evidence which, if accepted, could appropriately lead to a conviction on other counts, we can have no confidence that the jury undertook the correct exercise to undertake in relation to each individual count on the indictment and, as we say, either treated matters which were said in opening and by way of submission as if they were evidence or treated the case as all or nothing, rather than considering the evidence in relation to each account separately, as they had been directed to do.

20. In those circumstances, we can have no confidence that the jury correctly followed the judge's directions in relation to each count or, indeed, even, put their mind to each individual count separately. In those circumstances we consider that the jury's guilty verdicts in relation to all counts on the indictment are unsafe."

22. It was submitted that exactly the same reasoning applied to the facts of this case and all the convictions were unsafe.
23. The prosecution resist the proposed appeal arguing that there was sufficient evidence before the jury to be sure that incidents in counts 3, 4 and 6 took place when the complainant was under 13. It was apparent from a fair reading of his ABE, the tenor of his evidence as a whole, and that he had confirmed in re-examination that everything that he had told his parents and his partner was true. Even if they were wrong about that, the convictions on those four counts did not impact on the remaining convictions. The facts of this case are far removed from BRB where there was no evidence whatsoever to support four of the convictions leading to considerable doubt as to how the jury can have followed the judge's legal directions.

Analysis and conclusions

24. Full details of the delay in lodging the appeal and the precise chronology have been provided and are set out above. Given the difficulty of instructing lawyers from custody and obtaining the resources and wherewithal to do so, the delay of 4 months from date of conviction to the first meeting with the lawyers is understandable. It is apparent that as soon as new lawyers were instructed they worked quickly and diligently to obtain the information necessary to draft and perfect the grounds of appeal. A transcript of the evidence was requested on the same day that the solicitors were instructed and there was no delay in progressing the appeal. We find that it is in the interests of justice to grant the 204 day extension of time within which to bring this appeal and we grant the application.
25. We are further satisfied that ground 1 raises arguable grounds and grant leave.
26. Although there was some evidence before the jury that the offences had occurred when the complainant was under the age of 13, there were other parts of the evidence that were inconsistent with that conclusion as set out in paragraphs 8 -12 above. In other words the evidence was mixed.
27. Given the ambiguity in the evidence we have asked ourselves if a properly directed jury could have reached guilty verdicts and how a half-time submission would have fared. We are satisfied that the evidence of the complainant's age was not so weak that it could not have resulted in convictions. It seems likely that a half time submission of no case to answer would have failed and the counts would have been left to the jury to decide after the defence evidence, closing speeches and the summing up. There was evidence of his being under age 13 when the oral sex and mutual masturbation began, such as from the complainant's recollection of being in school year 7 when it began. It was accepted that he was under 13 when he stayed over in A's bedroom and his evidence that what had happened in the bedroom continued - "the same again" - when things moved to the front room in the day time. That the complainant was under the age of 13 when these things happened was also consistent with what he told his partner and father and he confirmed, in general terms in re-examination, that everything that he had said to them was true.
28. However it is also correct that there were other parts of the complainant's evidence when he said that the offending in those counts started when he was 13 or over.
29. There was thus some ambiguity in the evidence and the jury would have needed to have been directed carefully to consider the competing evidence about the complainant's age when considering counts 3, 4 and 6 and be reminded of the requirement to be sure of his age when the events alleged took place. They would also have needed to be specifically reminded of what was said about the complainant's age in the judge's summary of the evidence. With clear directions a jury could have reached safe guilty verdicts. Unfortunately because the issue had not been spotted by anyone, the jury did not have the assistance that they needed and instead they were told that the complainant's age at the time of counts 3, 4 and 6 was not an issue as it should have been. We therefore find that the convictions on counts 3, 4 and 6 are unsafe. The convictions on these counts cannot stand and ground 1 of the appeal is allowed.
30. On ground 2 however we find that there was no cross-contamination of the jury's convictions on the other counts so as to render the remaining convictions unsafe. The failure to give adequate directions and remind the jury of the evidence relating to the complainant's age in counts 3, 4 and 6, was specific only to those counts. In light of the internally inconsistent evidence on age, the only aspect of the judge's summing up and legal directions that was unsatisfactory was the approach to one ingredient of the s.8 offence in counts 3, 4 and 6 that concerned the complainant's age at the time and the judge's direction to the jury that there was no doubt that the complainant was under 13 when the alleged incidents took place. In all other respects there can be no criticism as can be seen by the lack of direct challenge to counts 7, 8 and 10 which were the same offences committed when the complainant was a little older. This case is distinguished from BRB as in this case the evidence was mixed and solely about the complainant's age in the 3 counts, whereas in BRB there was no evidence whatsoever of any of the ingredients of the offences on the impugned counts. A properly directed jury could never have convicted on those counts as there was no evidence to support the prosecution case the incidents had happened at all. The complainant in that case did not come up to proof and did not describe the incidents alleged in those counts in her oral examination in chief or at any point in her cross-examination and re-examination. On the facts in this case the error on one ingredient of the offence in counts 3, 4 and 6 was entirely self-contained and does not infect any other aspects of the jury's verdicts. We therefore refuse leave on ground 2.
31. We discussed with counsel what might be the consequences if we were to find for the appellant on either ground. Mr Treble for the prosecution did not suggest that the court should exercise its powers under s.3 Criminal Appeal Act 1968 ("the 1968 Act") to substitute the jury's verdicts for convictions under s.10 of the Act. We agree that it would not be appropriate. This is because by their verdicts in counts 7, 8 and 10 the jury have already convicted the appellant of causing the complainant to perform oral sex on A, causing A to perform oral sex on the complainant and both to masturbate each other when the complainant was between 13 – 15 years old (contrary to s.10 of the Act). The indictment was drafted with allegations of specific events and there were no multiple incident counts as might have been expected.
32. Mr Treble was instructed to seek a re-trial pursuant to s.7 of the 1968 Act which Mr Vullo opposed. The test set out in s.7 is whether it appears to the Court that the interests of justice require the appellant to be retried. In this case, given the passage of time that has now elapsed, the inconsistencies in the evidence about age at the time of the offending the subject of counts 3, 4 and 6, and since the convictions on the other counts are undisturbed by the quashing of the convictions in counts 3, 4 and 6, we conclude that it would not be in the interests of justice for the appellant to be retried on those three counts.
33. In conclusion we grant an extension of time and leave to appeal on ground 1. We allow ground 1 of the appeal and quash the appellant's conviction on counts 3, 4 and 6. His conviction on counts 1, 2, 5, 7, 8, 9 and 10 remain undisturbed and we refuse leave on ground 2.
34. It follows that the sentences in each of grounds 3, 4 and 6 are quashed as the appellant does not fall to be sentenced for these counts. His overall sentence is therefore now reduced from 12 years to a total of 5 years made up of concurrent sentences of 5 years for counts 5, 7 and 8 and concurrent sentences of 26 weeks for counts 1, 2, 9 and 10. Mr Treble did not ask the Court should exercise its powers under s.4 of the 1968 Act to increase the sentences on the remaining counts.
35. Finally, we wish to thank counsel for their clear and helpful submissions.