R v Mark Smith & Ors [2024] EWCA Crim 390

[2024] EWCA Crim 390Case No 202201919 B3, 202201970 B3, 202201975 B3, 202302140 B3, 202300687 B3, 202300707 B3, 202300718 B3, 20230720 B3, 202300724 B3, 202301334 B3, 202301467 B3, 202201927 B3, 202302038 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON
His Honour Judge Ward
T20207196, T20207203
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/04/2024
Before
LADY JUSTICE MACUR DBELORD JUSTICE STUART SMITHMRS JUSTICE MAY
Between
RexRespondentMark SmithAppellantsAnn Marie ClareAppellantKirsty WebbAppellantJames EvansAppellantNatasha WebbAppellantTracey BakerAppellantLuke BakerAppellantDavid BakerAppellantPhillip WellingtonAppellantNatalie WellingtonAppellantViolet GriffithsAppellant
Mr N Rasiah KC and Ms H Duong (instructed by the CPS) for RespondentMs K Lumsdon KC (instructed by Watson Woodhouse) for Appellants EvansMs R Wade KC for Appellant KirstyWebbMr J Jarmola for Appellant SmithMr A Eissa KC for Appellant Tracey BakerMs L Bates (instructed by Forbes Solicitors) for Appellant Luke BakerMr N Lumley KC (instructed by Watson Woodhouse) for Appellant David BakerMs A Husbands for Appellant Phillip WellingtonMs Orchard for Appellant Natasha WebbMs Khan for Appellant Natalie WellingtonHearing Hearing date: 14 March 2024
Approved JudgmentThis judgment was handed down remotely at 10.30am on 19 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, no matter relating to any of the complainants in this case shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as a complainant in that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.NOTE – THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981.  IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.

Macur LJ :

[1]This judgment concerns the appeals against conviction by Natalie Wellington (“NW”) and Philip Wellington (“PW”) and appeals against sentence by Natasha Webb (“NaW”) and Luke Baker (“LB”) all brought with the leave of the single judge. It also relates to the renewed applications for leave to appeal against conviction by Tracey Baker (“TB”) and David Baker (“DB”), LB, Kirsty Webb (“KW”), James Evans (“JE”), Mark Smith (“MS”) and Ann Marie Clare (“AMC”) and for leave to appeal against sentence by Violet Griffiths (“VG”).[2]The appellants and/or applicants were convicted following a series of three trials concerning intergenerational and interfamilial sexual abuse of seven children. The overarching indictment was extensive, charging 22 individuals with a total of 62 counts. We do not refer to the other defendants, or counts of the indictment, unless relevant to the appeals or applications we consider. Suffice to say at this point that the nature and breadth of the allegations were of the most serious and repetitive penetrative abuse of very young children by numerous adults; some of those children being on occasions directed to perform sexual activity with other victims for the entertainment of adults. Further details, as necessary to the particular appeal or application, is referred to hereafter.[3]The hearing before us was listed on 14 and 15 March 2024. We gave directions to ensure that all submissions would be completed within that time. We are grateful to all counsel for agreeing a timetable and nominating a single counsel to ‘lead’ on draft grounds common to more than one applicant. Furthermore, by reference to comprehensive and clearly articulated skeleton arguments and with focused oral submissions, the hearing was concluded by sitting until 4.45 pm on the first day. All counsel for the applicants, and those appearing on behalf of the prosecution were content that, subject to leave being granted, the submissions made in the renewed applications for appeal, would stand as made in the appeal.[4]We reserved our decisions with judgment to follow. However, having regard to the decisions we reached which impacted upon the liberty of certain of the appellants and applicants, we announced the decisions in all the applications prior to promulgating our written judgment.[5]That is, we dismissed the appeal against conviction brought by NW and PW; we dismissed the appeal against sentence brought by NaW. We allowed the appeal against sentence of LB, quashed the sentence of 28 months, and substituted an immediate sentence of 18 months imprisonment which would result in his release. We granted leave to appeal and indicated that we were minded to allow the appeals against conviction brought by TB and DB. We made representation orders for leading counsel in each case and granted conditional bail to each pending a decision by the prosecution as to whether it will seek retrial, and if so in respect of which counts; such decision to be made and notified within three days of this judgment being handed down. If the prosecution seeks to retry DB and/or TB, their counsel to respond to the written representations made on behalf of the prosecution within three days thereafter. Further directions to be given thereafter as relevant. We dismissed all other renewed applications, whether for leave to appeal conviction or sentence. The appeals brought with leave.[6]The appellants NW and PW were convicted in trial 2. Both were convicted of “Conspiracy to cause or incite children under 13 to engage in penetrative sexual activity”, contrary to section 8 of the Sexual Offences Act (“SOA”) 2001 and section 1 of the Criminal Law Act (“CLA”) 1977.[7]NW was also convicted of “Sexual assault of a child under 13”, contrary to section 7 SOA 2003; “Assault by penetration of a child under 13”, contrary to section 6 SOA 2003; and “Causing a child under 13 to engage in penetrative sexual activity”, contrary to section 8 SOA 2003. She was sentenced to a special custodial sentence of 17 years pursuant to s278 Sentencing Act 2020, comprising a custodial term of 16 years and a licence extension of 1 year, less time spent on qualifying curfew. Other orthodox ancillary orders were made. She was represented below and before us by Ms Khan under a representation order.[8]PW was also convicted of different offences of sexual assault of a child under 13 and assault by penetration of a child under 13. He was sentenced to a special custodial sentence of 9 years pursuant to s278 Sentencing Act 2020, comprising, a custodial term of 8 years and a licence extension of 1 year less time spent on qualifying curfew. Other orthodox ancillary orders were made. He was represented below and before us by Ms Husbands under a representation order.[9]NaW pleaded guilty in trial 1 to “Conspiracy to facilitate or arrange the commission of a child sex offence”, contrary to section 9 of SOA 2003 and section 1 CLA 1977, four offences of “Cruelty to a child under 16”, contrary to section 1(1) Children & Young Persons Act (“CYPA”) 1933, five offences of causing a child under 13 to engage in penetrative sexual activity, and two offences of sexual assault of a child under 13. She gave evidence for the prosecution in all three trials. She was sentenced to a total of nine years’ imprisonment. Other orthodox ancillary orders were made. She was represented below and before us by Ms Orchard under a representation order.[10]LB was tried in trial 2. He was convicted of “Rape of a child under 13” contrary to section 5 SOA 2003 and causing a child under 13 to engage in penetrative sexual activity. He was sentenced to 28 months on each count concurrent. Other orthodox ancillary orders were made. He was represented below and before us by Ms Bates under a representation order.

The renewed applications

[11]TB and DB were tried in trial 2. They were convicted of conspiracy to facilitate or arrange the commission of a child sex offence, and conspiracy to cause or incite children under 13 to engage in penetrative sexual activity and, jointly, assault by penetration of a child under 13.[12]TB was convicted of an additional two counts of assault by penetration of a child under 13. She was sentenced to a special custodial sentence of 16 years, comprising a custodial term of 15 years and a 1-year licence extension less time spent on qualifying curfew. Other orthodox ancillary orders were made. She was represented below by Mr Eissa KC, who appeared before us pro bono.[13]DB was also convicted of two additional rapes of a child under 13, sexual assault of a child under 13, and causing children under 13 to engage in penetrative sexual activity. He was sentenced to a special custodial sentence of 21 years pursuant to s278 Sentencing Act 2020, comprising a custodial term of 20 years and a licence extension of 1 year, less time spent on qualifying curfew. Other orthodox ancillary orders were made. He was represented below by Mr Lumley KC, who appeared before us pro bono.[14]KW was tried in trial 1. She was convicted of conspiracy to facilitate or arrange the commission of a child sex offence, conspiracy to cause or incite children under 13 to engage in penetrative sexual activity, “Conspiracy to cause children under 16 to watch a sexual act”, contrary to section 12 SOA 2003 and section 1 CLA 1977, and two offences of causing a child under 13 to engage in penetrative sexual activity. She was sentenced to 10 years’ imprisonment, less time spent on qualifying curfew. Other orthodox ancillary orders were made. She was represented below by Ms Wade KC who appeared before us pro bono.[15]JE was tried in trial 1. He was convicted of the same three conspiracies as KW, four offences of cruelty to a child under 16, two offences of assault by penetration of a child under 13, four offences of rape of a child under 13, three offences of causing a child under 13 to engage in penetrative sexual activity, and four offences of sexual assault of a child under 13. He was sentenced to life imprisonment pursuant to sections 321and 323 of the Sentencing Act 2020 with a minimum term of 18 years less time spent of remand and qualifying curfew. Other orthodox ancillary orders were made. He was represented below by Ms Lumsdon KC who appeared before us pro bono.[16]MS was tried in trial 1. He was convicted of conspiracy to facilitate or arrange the commission of a child sex offence, conspiracy to cause or incite children under 13 to engage in penetrative sexual activity, rape of a child under 13 and causing a child under 13 to engage in penetrative sexual activity. He was sentenced to an extended sentence of 25 years comprising a custodial term of 19 years and an extension period of 6 years, less time spent on qualifying curfew. Other orthodox ancillary orders were made. He was represented below by Mr Jarmola who appeared before us pro bono.[17]AMC was tried in trial 1. She was convicted of conspiracy to cause or incite children under 13 to engage in penetrative sexual activity, sexual assault of a child under 13 and two offences of causing a child under 13 to engage in sexual activity. She was sentenced to an extended sentence of 11 years comprising a custodial term of 8 years and an extension period of 3 years, less time spent of qualifying curfew. Other orthodox ancillary orders were made. She was not represented. We considered her renewed application on the papers and written arguments which had been placed before the single judge.[18]VG was tried in trial 3. She was convicted of conspiracy to cause or incite children under 13 to engage in penetrative sexual activity and causing a child under 13 to engage in penetrative sexual activity. She was sentenced to 15 years’ imprisonment.[19]The conspiracies referred to in paragraphs [6], [9], [11], [14], [15], [16], [17] and [18] were conspiracies involving the named appellants or applicants as indicated. The conspiracy to arrange or facilitate the commission of a child sex offence related to the named appellants’ and/or applicants’ implicit and mutually consensual agreement to create and perpetuate an environment in which there were no sexual boundaries and where they created opportunities for themselves and their friends to sexually abuse the children. The conspiracy to cause or incite children under 13 to engage in penetrative sexual activity covered any conduct which amounted to an invitation or a request or an implied permission for sexual penetration of or by any of the children with any adult or with each other. These conspiracies were said to be demonstrated by the substantive penetrative assaults and activity alleged against the named appellants and/or applicants, the sexual assaults and rapes that took place at family parties, as well as the victims’ sexual activity with each other which was incited by the adults. The conspiracy to cause children to watch sexual acts concerned the complainants being exposed to and caused to watch the sexual activity freely and openly engaged in by adults with each other in their own homes where the children were present, or at their parties.[20]Otherwise, as will be apparent, we only identify the applicable statutory provisions on the first occasion on which they arise when describing the offences of which the individual appellants and/or applicants were convicted.[21]Mr Rasiah KC and Ms Duong appeared for the prosecution.

The Victims

[22]The victims were all under 13 at the time of the indicted offences and are: i) MC1 was aged 3 -11; MC2 aged 4-12; MC3 aged 1-8 and FC4 born in October 2012 during the ongoing abuse. They are siblings and the children of NaW and JE, the nephews and nieces of TB, DB, KW, NW, PW, and AMC and cousins of LB. ii) FC5 aged 1-7. She was the daughter of TB and DB, the sister of LB and niece of NaW, JE, NW, and PW. iii) MC6 aged 2-10 and FC7 born in November 2013 during the indicted period of abuse. They are siblings and the children of KW and MS, the nephew and niece of NaW, and the great nephew and great niece of VG.

The facts in brief

[23]MC1-3 and FC4 were removed from the care of NaW and JE following long standing concerns of neglect. When MC1-3 were living with foster carers they began to disclose sexual abuse of themselves and other victims, leading to a police investigation and the eventual removal of FC5 and MC6 and FC7 into care.[24]MC1-3 and FC5 were subject to video recorded interviews. They described the abuse that they and FC4 and FC7 had experienced. MC6 was interviewed but did not make any allegations. It appeared that the children were exposed to sexualised behaviour from birth, and were groomed, tutored, and “trafficked” by their primary carers. Sexual acts were performed in front of them, and then practised upon them, and older children, who had similar experience, had become abusers when they became adults. The defendants had, variously, showed the victims pornography and had indecently exposed themselves; the children had watched sexual activity and been subject of oral, anal, and vaginal penetration with fingers, objects, and genitals. The male victims had penetrated some adult defendants and other victims and had performed acts of oral penetration.[25]The sexual activity was said to have occurred within each immediate family unit in their own homes, and when members of the extended family unit visited or when the children stayed at the homes of aunts and uncles, and at gatherings and parties held by the extended family and their friends which the prosecution characterised as “swingers’ parties”.[26]As a result of the allegations, the medical records of all seven victims were obtained and they were medically examined. The general medical records disclosed multiple attendances by some of them for anal and/or genital complaints. They were medically examined for the purposes of this investigation. There were medical findings in relation to all the children supportive of the allegations of sexual abuse. In the case of : MC1, evidence of anal scarring; MC2 evidence of anal scarring; MC3 evidence of perianal venous congestion; FC4 evidence of labial fusion and transection to the hymen indicating a significant healed previous injury, an anal skin tag and scar, spontaneous dynamic anal dilation and perianal venous congestion; FC5 evidence of significant labial fusion and scarring and a small superficial laceration of the perianal skin; MC6 demonstrated a dramatic and unusual level of situation-specific emotional distress during the examination and unusually he achieved a spontaneous erection in response to the request to undress. There was evidence of spontaneous anal dilation. FC7 evidence of a minor degree of posterior labial fusion and a brief, non-sustained, anal dilation.[27]In addition, there were reports from a consultant forensic psychologist on MC1-3 which indicated them to be traumatised and subject to various cognitive and emotional psychological difficulties.[28]The defendants, save NaW, either denied that the victims had been abused, or that if they had been abused, denied that they were responsible for the abuse. In summary, there were serious questions over their reliability and credibility of the allegations, a divergence of expert opinion in relation to the medical evidence and a concern that the jury had only part of the picture as there were many defendants who were yet to be tried.[29]Unsurprisingly, the prosecution submitted that it was important for the jury to hear all the allegations made by all the victims against all defendants, regardless of which trial was being heard. As will be clear from paragraphs [59], [69], [70], [73] and [80] below, several applicants now take issue with that point regardless that no application was made in any pre-trial hearings to edit ABE interviews or the section 28 video recorded evidence of MC1-3, and FC5. Appeals against conviction with leave. Phillip Wellington and Natalie Wellington[30]PW and NW appeal with the leave of the single judge. PW and NW were tried in trial 2 with seven other defendants and were convicted as indicated above in [6] – [8]. The complainant in the substantive counts was MC2. He was not fit to be cross examined. His evidence was therefore admitted as hearsay. No issue is taken with the directions given in summing up in this regard. PW and NW’s sole ground of appeal relates to the admission into trial 2 of the bad character evidence of Norman Williams, deceased since 2012. There is no renewed application for leave to appeal against conviction in relation to other draft grounds placed before, and for which leave was refused by, the single judge.[31]In summary, Norman Williams was a convicted sex offender who had abused his step-daughter. He was convicted of indecent assault in 1992 and rape and indecent assault in 1996. Following his last prison sentence, he had lodged with JE and NW and three of the complainants in breach of his conditions of parole/ licence. His name had ‘featured’ significantly in trial 1, having been identified by many of the defendants as the likely perpetrator for any sexual abuse that was established to have occurred. He had been implicated by MC1. His ‘bad character’ was admitted into trial 1 with the agreement of the defendants pursuant to section 100(1)(c) of the Criminal Justice Act 2003 (“CJA”).[32]PW and NW knew Norman Williams. A photograph taken at a wedding in which Norman Williams appeared had been uploaded to PW’s mobile phone by NW. Realistically, the only relevance of this evidence was the fact that PW and NW were prepared to associate with Norman Williams, despite knowing of his previous offending. PW, when asked about Norman Williams in interview confirmed that he did know him. Ms Husbands and Ms Khan, on behalf of PW and NW respectively, advance the argument that the prosecution thereby sought to convict on the ‘basis of guilt by association.’[33]Ms Husbands and Ms Khan submit that there was no ‘gateway’ to admit this evidence other than pursuant to section 100(1)(c). Contrary to the initial stance taken by the prosecution, this was not “evidence that has to do with the alleged facts of the offence with which the defendants were charged”; see section 98 CJA. The convictions significantly predated the time span of the consolidated indictment and did not concern any of the victims in this case. The ‘landscape’ in trial 2 was completely different to that in trial 1. The prosecution benefitted from the admission into trial 2 of the convictions secured in trial 1. PW and NW did not ‘agree’ the admission of Norman Williams’ bad character.

Discussion

[34]We consider it is entirely likely that Norman Williams would have been named in the indictment as a perpetrator or fellow conspirator but for his death. The ‘conspiracy counts’ are indicted as an agreement between named defendants and “others”, who the prosecution say would incite Norman Williams. However, this is not the point.[35]We have some sympathy with the view that the prosecution application to admit the ‘bad character’ of a non-defendant was unnecessary by the time of trial 2. However, in view of the thrust of the submissions ably advanced by Ms Husbands and Ms Khan, we questioned them as to their apparent acceptance that there should be any reference to Norman Williams in trial 2 at all. They candidly concede that they did not take issue on this point. In these circumstances, it seems manifestly obvious to us that the jury needed to understand why he featured in the evidence at all.[36]We agree with the trial judge that “anyone who knew Norman Williams reasonably well …would have known that he was convicted of a sexual offence against a child and that he went to prison. …and the fact that he was part of some defendants' social circle -- not all, by any means, …is why those convictions appear to me to be relevant. Responding to a submission that the fact a defendant knew that somebody in the past had been convicted of an offence against a child did not mean that they shared a sexual interest in children, the judge went on “if they associate with that person…where there are children around, don't take precautions to isolate that person from the presence of other children, which have all been issues in this wider case, those are the reasons for it.”[37]Therefore, the obvious gateway to admissibility of Norman Williams’ previous convictions in trial 2 was because it was “important explanatory evidence” for otherwise the jury would find it impossible or difficult to properly understand other evidence in the case and its value for understanding the case as a whole is substantial; see section 100(1)(a) and (2).[38]We noted that the trial judge indicated in discussion with Ms Husbands that he would direct the jury in summing up on the relevance of Norman Williams’ previous convictions. We found no such legal direction, and neither Ms Husbands, Ms Khan nor Mr Rasiah, were able to identify where, if it appeared at all, it was to be found. Whilst we recognise the reality of a fast-moving case with many different parts, it is regrettable that, in light of the objection taken to admissibility, neither prosecution nor defence counsel thought to bring the absence of such a direction to the attention of the trial judge.[39]However, we note that the trial judge fairly reminded the jury of PW’s insistence that he had warned other defendants of Norman Williams previous convictions. The fact of the nondescript ‘wedding’ photograph takes the matter no further. The judge’s direction regarding the evidential value of the convictions of defendants in trial 1, that is, that the convictions were evidence of those defendants’ guilt, was unexceptional and is not challenged. There is an obvious read across to the evidence of Norman Williams past offending. Taken in the context of the standard direction to consider the defendants separately we conclude that the absence of a specific direction regarding Norman Williams previous convictions does not undermine the safety of the convictions.[40]We dismiss these appeals. Renewed applications for permission to appeal against convictions. David Baker, Tracey Baker[41]The responsible local authority placed FC4 with DB and TB following her removal into care. The first allegations made against them by MC1 and MC2 related to a 3rd birthday party held for FC4 at the Bakers’ home address. Specifically, in an ABE interview on 4 April 2017, MC1 said that he was “at [FC4]’s birthday party at TB and DB’s house, … Dave put his penis my bottom whilst Tracey was watching. I was bending forward, and Dave was standing behind me holding my back [Count 7]. He stopped and then Tracey took over, and she had a fake penis, it was pink. She put it in her vagina. She got it from a cupboard in the kitchen where the cereal goes. She was standing when she put it in her vagina. She got the fake penis and put it in my bottom [Count 4] … Then when she took it out of my bottom, she took it outside and threw it in the fields.”[42]In an ABE interview conducted the same day with MC2, he said that at the same party “Dave touched my private parts. He got me to pull my trousers down and pants then he got his hand, and he was pulling my skin back and forwards. [Count 8] Then he got Tracey to come in and she did the same what he did. Then she turned me around and she was got her and she's touching my bum, both cheeks and then she put her pinkie in it... [Count 5]”.[43]Mr Lumley KC and Mr Eissa KC made a submission of no case to answer, principally on the basis that these were the only allegations when date, time and place were specifically alleged, with such details being corroborated by reference to a disclosure said to be made to foster parents with whom MC1 and MC2 were living at the time. They argue that there could be no doubt that MC1 and MC2 could only have been referring to FC4’s third birthday party. MC1 and MC2 said that there was a lock on the kitchen side of the kitchen door and MC1 claimed to have seen abuse through a keyhole in the kitchen door, which keyhole, it was established, did not exist.[44]DB was evidently not present at the birthday party. He had been shown to have been working in Ireland. MC1 nevertheless maintained that he was present. There was no evidence of any other gathering at the Baker home or anywhere else, where all three children were present and could have been abused in the manner described and which formed the basis of counts 4, 5, 7 and 8. This impacted upon the reliability to be placed upon their evidence in relation to other substantive counts. Absent the substantive offending ~ and, arguably, in any event ~ there was no evidence of an agreement with others to commit offences.[45]However, the judge dismissed the application, finding that a reasonable jury could on the evidence reject “all realistic possibilities consistent with innocence”: see R v G & F [2012] EWCA Crim 1756 @ [36]. That is, the judge reasoned that MC1 and MC2 had significant learning difficulties and PTSD. The jury had been directed that assessment of the evidence of a child and/or someone with learning difficulties was complex and “rarely in terms which could be described as “black or white”, and sometimes evidence from a witness can be hard to understand.”[46]The jury in trial 1 had been addressed by defence counsel about the claims of MC1 and MC2 regarding the party as demonstration of their unreliability. However, the judge said that, although that “jury was not in charge of [TB] or [DB], the point still had resonance in that trial. The jury [in trial 1] rejected the point in so far as [MC1]’s reliability as a witness in respect of Defendants in that trial was concerned. They were entitled to do so.… In this trial, the question as to whether their evidence is reliable as against these Defendants is more focused, but I cannot ignore the verdicts in the first trial when I consider whether it is inherently unreliable. Concentrating on [MC1], and [MC2], and whether [DB] was at [FC4]’s third birthday party, there appear to me to be these options: either he may have been making up a story about things which could not and did not happen that day, and did not happen on any day – or he was speaking of things which did happen, but he was not correct about the day on which they happened. In this case, could a jury properly directed conclude that the second option is correct? It is not fanciful to suggest that a child has got the day and event wrong…It is of note that [MC2] also spoke in ABE about sexual crimes he said had been committed by [DB] at [FC4]’s third birthday party. Mr Eissa KC for [TB] submits that if, as has been postulated by the Prosecution, the evidence from one witness about the sexual offences may be considered reliable, but the witness has made a mistake about the event during which the offences were committed, it cannot be a coincidence that a second witness has made exactly the same mistake. I agree with that submission. Coincidence is so unlikely as to be unrealistic. Collusion is one possibility. Another possibility is that one boy has heard the other speak of the allegations, of which he himself had a memory, but he adopted what he had heard about this having been at [FC4]’s third birthday party because he had no memory of when it had been.”[47]TB and DB renew their application for leave to appeal against their convictions on the ground that the judge should have acceded to the submission. MC1 and MC2’s evidence was wholly unreliable. Consequently, TB and DB’s convictions are wholly unsafe.

Discussion

[48]We note that counts 4,5, 7, and 8 were described as single incident counts. We have no difficulty in understanding the judge’s reasoning to the effect that these were traumatised children who may have got the date wrong, but find it is impossible in the context of a criminal trial to disregard the high degree of specificity of their evidence which anchors the offences charged in counts 4,5, 7 and 8 to FC4’s birthday party at the Baker house and during the time when MC1 and MC2 were in foster care. We would have no such concern if the only demonstrably inaccurate detail related to the absence of a keyhole, which may well be confused with other openings in the door.[49]We are singularly unimpressed with the prosecution submission that “the ultimate issue is whether the jury can be sure that the alleged acts occurred within the Indictment timeframe”, (ridiculously wide as that was in light of the ages of the relevant children concerned in these specific offences), without beginning to indicate when, on the evidence, that could be. That is, there was no evidence of the constellation of events when there was another place and another time other than FC4’s third birthday party when MC1 and MC2 were delivered to and collected from the Baker house by their foster parents (LW and SG), or any other time when they attended a birthday party there. Mr Lumley in his submissions to us, challenged the prosecution to identify the evidence of any other possible occasion when this could have occurred, but Mr Rasiah KC has not attempted to do so, nor did leading prosecution counsel, Ms Hunter KC, during the trial.[50]We find that the date and the occasion specified were important material factual averments in relation to the specific offences charged because of the allegations made. The prosecution opened the case to the jury in reliance upon them, albeit with passing reference to an alibi. Regardless of the judge’s direction that they should not do so, the jury were invited to speculate that there was such another occasion. The verdicts in trial 1, as far as they marked the jury’s view of the reliability of the evidence of MC1 and MC2 in respect of the allegations they made against defendants in that trial could not possibly fill this vacuum in trial 2.[51]We simply cannot endorse the judge’s stance in this regard. We do not consider that a reasonable jury properly directed “could on the evidence, reject all realistic possibilities consistent with innocence” in respect of these specific allegations. The judge identified one such possibility in his ruling, as indicated above. That is, in the context of the amply and independently verified evidence that DB was not present at the birthday party, MC1 or MC2 “may have been making up a story about things which could not and did not happen that day and did not happen on any day”.[52]We regret that, amidst his conspicuously fair and skilful management of these three gruesome and gruelling trials, it appears to us that the judge strained to find a route by which to explain “these obvious weaknesses” of the evidence about FC4’s third birthday party. In our view, MC1 and MC2’s detailed evidence in respect of these offences was undoubtedly rendered inherently and irredeemably unreliable. It is not satisfactorily explained away in the context of a criminal trial by reference to the agreed fact that:
“In general, children with low cognitive functioning and/or high anxiety will struggle to give an accurate timescale for events, especially when abuse has occurred frequently and with many abusers. It is to be expected that such children will not be able to fully clarify what happened where and when; these details cannot always be identified by young individuals with very complex mental disorders and intellectual impairment. … It is accepted that the ability to maintain a consistent account is the key question in weighing evidence from individuals with low cognitive functioning.”
[53]Nor can we agree with the judge’s reasoning that, because “the jury has seen the recorded evidence of these boys – at length, and this puts them in a good position to assess the reliability of the evidence safely.” The consistent account which MC1, and by extension MC2, maintained in the face of challenge was that DB was present at the party and that the specified offences were committed by DB and TB in each other’s presence, and/or jointly together. On this evidence “the prosecution evidence taken at its highest, is such that a jury properly directed could not properly convict on it”: (R v Galbraith (1981) 73 Cr App R 124).[54]We have little compunction in overturning the judge’s ruling in relation to counts 4, 5, 7 and 8; he should have withdrawn these counts from the jury. After anxious consideration, we conclude that we cannot safely ignore the ‘knock on’ effect of our conclusion on the safety of the other convictions against DB and TB. The judge gave a propensity direction in relation to all defendants, the terms of which are not challenged. We cannot be sure that the jury’s verdicts in relation to counts 6, 9 and 10 were not ‘shored up’ by virtue of the verdicts in respect of counts 4, 5, 7 and 8. Certainly, there was no evidence other than from MC1 and MC2 that they had occurred as they alleged. Upon the judge’s directions, the jury were to consider the substantive counts as informing the elements of the conspiracy counts. Therefore, neither can these verdicts against DB and TB be regarded as safe.[55]Consequently, we grant leave, and we allow the appeals of DB and TB against convictions.

Luke Baker

[56]LB renews his application for leave to appeal conviction on the single ground that the judge should have acceded to a submission of no case to answer made on his behalf based upon the demonstrable unreliability of MC1’s evidence as indicated above. Ms Bates, on his behalf, relies and adopts the submissions made and, by extension no doubt, upon the outcome of TB and DB’s renewed application for leave to appeal against conviction.[57]We dismiss this application. We confine our findings of inherent unreliability of evidence to the counts on the indictment that refer specifically to the ‘birthday party allegations.’ The allegations against LB did not arise in the context of the birthday party.[58]As indicated above, the convictions on counts 6,8 and 10 are quashed by reason of the reliance that the jury may have placed on those convictions as indicating a propensity to commit the other substantive offences indicted.

Kirsty Webb

[59]KW renews her application for leave to appeal against conviction on three grounds. The first, that the judge should have allowed a submission of no case to answer at the close of the prosecution case in respect of the conspiracy counts. The second, that leading counsel for the prosecution referred to ‘inadmissible’ evidence during her closing speech. The third, that the judge erred in failing to require the editing of the ‘section 28’ pre-recorded cross examination of the complainants on behalf of defendants involved in the second and third trials.

Ground 1

[60]Ms Wade KC takes no issue with the formulation of the judge’s legal directions in respect of the conspiracy counts; however, she argues that there was(i) a lack of evidence of a single conspiracy and(ii) insufficient evidence that KW was party to any conspiracy.[61]As to(i) she submits that the length of time over which the conspiracy spanned, and number of participants alleged to have been involved would tell against a single conspiracy. As to(ii) she submits that the two substantive offences against KW relied upon the evidence of MC1 only, albeit that he alleged that MC6 had been a victim of KW’s sexual abuse. NaW was, by virtue of the sibling relationship with KW, likely to have been the ‘link,’ if any, to the conspiracies. NaW, whom the prosecution put forward as a witness of truth, denied that KW was involved in any conspiracy/agreement.[62]We summarise the judge’s ruling on the “single conspiracy” point made in submission of this submission of no case to answer as follows. He determined that if it was established that substantive sexual offences were being perpetrated by several defendants against any of the cohort of victims within the extended family, that it was capable of rebutting the coincidence of several perpetrators independently targeting the victims, and therefore the jury would be entitled to conclude that they did so as a result of a common agreement. The law relating to conspiracy did not require a defendant to have been involved from the outset, or to have remained part of the conspiracy throughout, nor to be in agreement with each and every other member of the conspiracy. The commission of substantive offences in such circumstances was capable of amounting to evidence that there was an agreement between the adult who committed the substantive offence, and at least one other adult in a position of responsibility towards the child, that this kind of offence could be committed.[63]The judge specifically addressed the second limb of the submission, finding that the jury were not obliged to accept NaW’s evidence when seen in the context of the whole. There was evidence from which the jury could conclude that MC6 had been sexually abused at an age and in circumstances which pointed to inter or intra familial abuse, and evidence that MC1 had been sexually abused by NW when she babysat, and therefore inferentially in agreement with his parents.

Discussion

[64]We would not go as far as to endorse the line of reasoning which suggests that evidence of sexual assault of a young child by itself implicates those adults in a position of responsibility towards the child as facilitating and agreeing with the perpetrator’s abuse. All will depend on the facts of the case. However, we consider that the judge was entitled to conclude that the evidence of the commission of similar sexual offences against one or more of a cohort of victims by a perpetrator linked to other such perpetrators can establish a conspiracy on the facts of this case. This ground is unarguable.

Ground 2

[65]The ‘inadmissible’ evidence to which the second ground refers is an intelligence report linking NW with Norman Williams, a convicted sex offender (see [31] above), which the prosecution sought to have admitted as rebuttal evidence. The judge refused leave to admit the evidence. Patently, in those circumstances, it should not have been referred to in front of the jury by Ms Hunter KC, leading prosecution counsel.[66]Mr Rasiah KC and Ms Duong, on behalf of the prosecution, now concede that Ms Hunter KC in her closing speech made reference to a question relating to whether KW was at Norman Williams’ flat “when the police came”; that there is no note of KW being questioned on this issue; and no evidence was adduced of the police visiting Norman William’s flat whilst KW was there, as the judge had declined to allow such evidence be called by the prosecution in rebuttal.[67]Ms Wade in her written submissions complains that the judge was indifferent to this issue and other complaints of inaccurate summations of the evidence in the prosecution closing speech and took no action, in contrast with the stance he took in the case of unintentional errors made in the defence closing speeches which he required to be corrected. Consequently, “the jury would have been left with the impression that everything Prosecution Counsel had said was accurate.”

Discussion

[68]The reference to the material which the judge had refused to admit into evidence should not have occurred. Miss Wade, on reflection, realistically concedes that the judge cannot be criticised for resisting any request that he should require a public redaction of any such comments or forbidding any further reference to the material in Ms Wade’s own closing speech. However, she submits that KW’s credibility was central to her defence and the situation created by Ms Hunter’s indiscretion was incapable of remedy other than discharge of the jury. We disagree that this proposed solution was either appropriate or warranted in the circumstances of the case. Significantly, it was not an application made in the trial. In the context of a long and complex trial, it was clearly open to the judge (as often happens) to conclude that the best course to adopt was to let things lie, on the basis that doing so did not create any danger of an unsafe conviction. This ground is unarguable. Ground 3[69]The complainant’s evidence in chief comprised their ABE recorded interviews. The cross-examination of the complainants was pre-recorded pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1999. The third ground arises from NaW making acceptable pleas to the indictment, and the separation of the indictment into three trials resulting in counsel for defendants in the first trial, including Ms Wade, seeking to exclude the MC1 and MC3’s evidence given in response to counsel representing NaW and those representing the defendants in other trials.[70]The basis of the defence submission was that if cross examination of the complainants had not been pre-recorded, there would be no question of their evidence in relation to defendants in other trials being led before the jury. The judge acknowledged the force of this point but, with some expressed diffidence, rejected the application.[71]We consider the judge’s ruling to be perceptive and endorse his analysis of the evolution of the cross examination of vulnerable witnesses. To summarise the ruling would do a disservice to his careful exposition and demonstrable careful consideration of the relevant defendants’ submissions. Consequently, we repeat the ruling in full. “I confess that my decision on the topic of excluding questions asked on behalf of Natasha Webb in pre-recorded XX of [MC3] and [MC1] has not been an easy one to make. The simple answer would be to say that because NW is no longer a Defendant, but for pre-recorded XX her counsel would have asked no questions of these witnesses, and nobody could have or would have objected to that fact, and so that position should be maintained now by the editing of the XX in the way proposed by Miss Lumsdon QC. I have considered the matter very carefully, I do not consider that the simple answer is the correct answer here. The art and practice of Cross-examination has moved on from the days where each barrister took their turn, and asked all questions relevant to their individual case, even at the cost of repetition between counsel. Nowadays, especially with vulnerable witnesses, the judge has to manage the process and oversee it carefully. That management requires the judge to ensure that there is no duplication of questions or topics across the different counsel, so that the witness’s evidence can be dealt with in a far shorter time, so as to maintain their concentration and ability to answer questions properly. In this case, that process took place, and I am grateful to all counsel for working hard to ensure that it did so properly. It has this result though – Mr Mochrie, junior counsel for James Evans, modified his questions of [MC3] and [MC1], as did other defence counsel, knowing what questions Mr Garcha or Miss Orchard [on behalf of NaW] were going to have asked before them. It follows that excision of a section or sections of questions on behalf of NaW are going to cause an imbalance in the process, and remove from the jury the ability to take an overall view of the witness they are assessing. This is particularly so in this case, because as the first counsel to cross examine these witnesses, Mr Garcha QC and Miss Orchard asked a significant number of questions – to an extent making it inappropriate for counsel who came later to ask so many. Whilst the purpose of cross examination in a criminal trial, in my view, is still part of a fundamentally adversarial system, cross-examination of vulnerable witnesses has required significant change. English criminal law is not fundamentally an inquisitorial system, but the form of questioning of vulnerable witnesses might be said to have moved a certain way towards that. Miss Hunter QC’s submission that the XX on behalf of [NaW] should be admitted to show consistency in the witness leans, in my view, towards an argument that this element of the trial process is now significantly inquisitorial. I am not sure that this is so. However, the adversarial system has had to adapt, and the result of that is, in multi-handed cases, that different barristers have to take different roles in an overall process. That is what happened in this case. There is no question of starting XX again, removing the questions proposed to be asked on behalf of [NaW], and allowing other barristers to adapt their own questions in the light of that. XX of [MC3] and [MC1] in this case was an overall process. It has happened, and it is not right even to consider that it should happen again. Editing of the questions, to ensure that questions were fair and appropriate, and not too numerous, took place over many days, at the GRHs. Any significant editing of the result of the XX, now, would have the effect of altering the context in which the remainder of the XX would be seen, and that would be wrong. I therefore rule that the questions asked of [MC1] and [MC3] on behalf of [NaW] will remain part of the recordings to be played to the jury. I can, and I think I should, give the jury an appropriate direction about this at the end of the case, when we can all see in what context questions asked on behalf of NaW should be seen. Given that we cannot yet see that overall context, I cannot today draft what that direction ought to be. Looking forward to what might be the overall context in which this XX should be seen, I remind myself of this. In this case, as has been discussed at length yesterday, [NaW] is now expected to be a prosecution witness. She may well give evidence herself which mirrors many of the questions put by counsel on her behalf of [MC3] and [MC1] in XX. It is likely that some of the questions which were asked by her counsel of [MC3] and [MC1] would be elicited in evidence by the Defence in any event at that stage, on the basis that [NaW] also gives evidence which is inconsistent with the case she was relying on at the stage when the witnesses were cross-examined. When we can see what actually happened during this trial in evidence, I will be able to address any issue which might still appear to need to be addressed concerning the jury having seen XX of [MC3] and [MC1] on behalf of [NaW]. The way to address any concerns which might then remain, however, is not to edit that XX out of the recordings to be played to the jury now. (Note: I heard, this morning, a short submission from Miss Lumsdon QC, echoed by all Defence counsel, that all XX by all counsel who represent Defendants in trials two and three be edited out. That application was opposed. I rejected the application, on the basis of the principles I set out above in relation to XX in this case being an overall process. This trial necessarily requires the jury to hear all the evidence of the children, not just the evidence in relation to the 8 Ds they are now trying, and all counsel in this case have accepted and agreed this until now – my judgment is that it is wrong to expect the jury to consider only the evidence against the Ds they are trying, effectively with blinkers on, and not hear the evidence against others as well)”[72]Ms Wade submits that the judge’s description of “the jury hearing the evidence with “blinkers on” is an inaccurate assertion of what would be the usual trial process”. On the contrary, the jury would be “blinkered” because they would not have the opportunity to assess the evidence of the absent defendants awaiting the upcoming trials 2 and 3. Discussion[73]Acknowledging that some of NaW’s pleas were not made until after the jury had been sworn in the first trial, the pertinent question is why no prior application had been made to edit the ‘section 28’ recordings ahead of trial, at least in respect of those defendants who would be tried in later trials. Ms Wade insists that, contrary to Ms Hunter’s submissions to the trial judge, she had not agreed on TW’s behalf “that all the pre-recorded XX would be played at all three trials, in full, so that each jury could see the overall ambit of each child’s evidence and have the best opportunity to assess its truth and accuracy.” She states in her written submissions that she “had not envisaged the playing of all the recordings and it was at the point at which the position crystallised that objection was taken.”[74]We regret that this is an unsatisfactory response. There were several occasions when the objection could and should have been taken regarding the absent defendants. The PTPH took place on 13 and 14 July 2020. A further directions hearing was set for 29 October 2020. The proposed division of defendants for trial is contained in a document dated 7 August 2020. On 11 May 2021, the judge directed that “Any applications to exclude the ABEs (or any of them) together with skeleton arguments, are to be served and uploaded by 24th May at 1630. The Prosecution are to respond by 7th June at 1630.” The applications which followed related to the exclusion of the ABE interviews in their entirety. On 23 June 2021, the judge directed proposed edits of the ABE interviews by 25 June 2021. A further pre-trial review took place on 13 August 2021 for all defendants to include “consideration of Ground Rules arrangements for Defendants during the first trial”. The section 28 hearings took place in September 2021. In September and November 2021, the judge directed notice to be given of any proposed editing of the ABE and section 28 recordings by all counsel.[75]Nevertheless, we have proceeded to examine the submissions made during this and other renewed applications (as we indicate below). The reality is that the cross-examination of the complainants was necessarily significantly restricted. Miss Wade refers to the prejudice caused by hearing MC1 “repeatedly assert that individuals were lying about the cases they were advancing without the jury being able to hear the evidence of those individuals advancing those cases.” However, we note that some defendants in trial 1 were keen to use the “alibi evidence” of DB in trial 2 to undermine the credibility of MC1.[76]The jury in trial 1 were made aware from the start that other defendants awaited trial. Ms Wade takes no exception to the generic challenge to the complainant’s evidence made by Mr Garcha and Ms Orchard representing NaW, which was common to all defendants. As indicated by the judge in his insightful, nuanced, and careful ruling, the ‘usual trial’ process has inevitably been changed by the advent of section 28 cross examination, not least in a case of this nature which involved ‘traumatised’ and educationally challenged young victims. As the single judge stated, cross examination of the allegations would not have emerged neatly. Counsel would have been required to adapt their proposed questions by virtue of questions already asked by other defendants.[77]The judge’s ruling necessarily envisaged that a suitable direction could be devised to ensure that individual defendants were not prejudiced in the process to be adopted. No criticism is made to the direction he gave in this respect. This ground is unarguable.[78]KW’s renewed application for leave to appeal conviction is dismissed.

James Evans

[79]JE renews his application for leave to appeal against conviction on three grounds. The first mirrors the third ground advanced on behalf of KW. The second, and associated, ground is that the jury should have been discharged following NaW’s further pleas, and the third is to argue that the prosecution should have been put to their election on the conspiracy and substantive counts.[80]Ms Lumsdon KC’s submissions on behalf of JE go further than the submissions made by Ms Wade on the issue of the section 28 recordings in that she contends that Mr Garcha KC, who conducted the generic questioning of the complainants on behalf of all defendants, was a strong ‘visual’ representation, and when his client NaW pleaded guilty, this could not fail to prejudice all the other defendants. That is, Mr Garcha who had challenged the credibility of the complainants would be associated with the defendant who had admitted her guilt and thereby confirmed the complainant’s credibility. Further, his cross examination had been particularly directed to blaming JE. NaW’s interviews had been opened in full. They made not only her own damning admissions, but also accused others. She was a vulnerable and suggestible witness who was interviewed without an intermediary being present. The witness statement served after she had pleaded guilty indicated that she would give evidence in accordance with her interview with the proposal by the prosecution that NaW be sworn, and her interview played in full. JE’s application was to discharge the jury; for the prosecution to conduct a compliant ABE interview with NaW, using an intermediary; serve her as a witness; and make all necessary disclosure relating to her character, reliability, and credibility.[81]The judge ruled that NaW was a competent witness. He did not sanction the prosecution proposal regarding the way she would give her evidence. He said that if she failed to give evidence, then a significant time would have elapsed since her interviews had been ‘opened to the jury’. Discussion[82]We reject the submissions made regarding the editing of the section 28 recorded evidence to ‘remove’ Mr Garcha’s cross examination, both generic to all and specific to NaW. The contents of NaW’s interview records, and therefore the admissions she made, was apparent to all from the outset. Additionally, she had entered pleas to some of the substantive counts prior to the section 28 hearings. Regardless, all defendants’ counsel agreed that Mr Garcha should conduct the generic questioning of the complainants. This questioning went to the reliability and credibility of the complainant’s allegations having regard to the grave deficiencies alleged, and with justification, both as regards ABE interview techniques and the involvement of inexperienced foster carers in encouraging, receiving, and recording disclosures. It would be impossible to ‘edit’ the cross examination without significant prejudice to all defendants.

Ground 3

[83]Ms Lumsdon KC concedes that no issue was taken on behalf of JE with the indictment in any of the pre-trial hearings and she only sought to put the prosecution to their election in her half time submission. The straightforward response to this submission is that not only was it made too late in the day but that it is unfounded on the facts of the case. The substantive offences did not reflect the alleged and additional criminality of defendants’ involvement in a paedophile ring.[84]These grounds are unarguable. The renewed application is dismissed.

Mark Smith

[85]MS renews his application for leave to appeal against convictions on five grounds. Three of them mirror the grounds advanced on behalf of other applicants namely regarding the section 28 evidence, the submission of no case to answer on the conspiracies and the introduction of inadmissible evidence in the prosecution closing speech. The other two are specific to MS, namely that prosecution counsel improperly and unfairly criticised expert medical evidence adduced on behalf of JE absent cross examination of the witness and that the judge was wrong to admit evidence of the “pornographic habits” of MS , and did not give adequate direction on how the jury should treat the evidence.

Discussion

[86]Mr Jarmola, on behalf of MS, adopts the submissions made by Ms Wade and Ms Lumsdon on the ‘common’ grounds. His written submissions are to similar effect. They suffer the same fate.[87]The criticism he makes of Ms Hunter’s comments regarding Dr Gray have some purchase. Dr Gray’s evidence contradicted some of the medical evidence called by the prosecution. During the trial the prosecution agreed with those representing JE that the medical evidence could be read, and comment made upon it in closing upon the experts’ respective qualifications, as evidenced by the admission in evidence of their respective CVs. We are told that this approach was approved by the judge. We regard it as regrettable, to say the least, that terminology such as “maverick” and “incompetent” should have been deployed without warning by leading counsel for the prosecution in her closing speech to describe Dr Gray who had not been called to give evidence. As a general principle, if such a fundamental attack was to be made upon Dr Gray, she should have been given the opportunity to respond to it. Nevertheless, we are not persuaded that such a tirade, as described, would be effective or undermine the safety of the convictions given the scope and weight of the evidence as a whole that the jury had to consider.[88]Mr Jarmola’s submissions regarding the final ground upon which he relies gloss the relevance of the material in question. The issue is not that the pornographic material was portrayed by professional actors, but by the description of the material that had attracted MS to the sites. That is, the prosecution sought to adduce evidence that on three devices seized from MS were found a video entitled ‘Family Fux’, a photograph of an adult female performing fellatio holding a sign saying, “I love my brother”, a number of PornHub movies entitled, which signified the anal penetration of a female teenager in her bedroom.[89]The judge identified an interest in videos showing sexual activity with very young teens which could be demonstrative of interest in sexual offending against children, and interest in sex with extended family members and other closer family members. The evidence would be capable of demonstrating a propensity to commit offences like those charged. This went to an important matter in issue between prosecution and defence. He had regard to probative value to the prosecution case and prejudice to the defendant and determined it was admissible. This assessment is unassailable.[90]It is certainly regrettable, as the prosecution concede, that the judge failed to direct the jury as to the manner in which they should approach this evidence. We are bound to observe that this omission was another casualty of the judge’s task in summing up the case without receiving appropriate assistance by either prosecution or defence counsel, despite the fact that an issue had been taken to its admissibility.[91]Nevertheless, we are satisfied that this omission does not undermine the safety of MS’s convictions. In the context of the evidence as a whole, the watching of this pornography (which was not itself illegal material) was peripheral given the central evidence of the children. The ground is unarguable. The renewed application for leave to appeal conviction is dismissed.

Ann-Marie Clare

[92]AC was not represented before us. We have not received a notice of abandonment of her application, or any additional representations following refusal by the single judge and have proceeded to consider the written submissions made on her behalf by Mr Skudra and considered by the Single Judge.[93]The renewed application concerns three grounds of appeal. The first two relate to the judge’s refusal to accede to the submission of no case to answer in relation to the conspiracies, and complaints regarding the admissibility of the section 28 evidence. The written submissions take the arguments advanced orally by Ms Wade and Ms Lumsdon no further. They suffer the same fate.[94]The third ground challenges what is said to be the judge’s direction on cross admissibility. That is, it appears from the written submissions that the complaint is that the judge’s direction to the jury that they could take account of their verdicts in relation to the substantive sexual offences into consideration when considering the conspiracy counts should have emphasized that the jury must not adopt a similar practice in relation to other counts on the indictment.[95]This ground has no merit. The judge gave an appropriate direction regarding the separate consideration of substantive counts save as far as they may be sure that they demonstrated a propensity to commit other offences of sexual abuse.[96]The grounds of appeal are unarguable. The renewed application is dismissed.

Appeals against sentence:

[97]NaW pleaded guilty and was sentenced as indicated in paragraph [10] above. She gave evidence for the prosecution in all three trials. The appeal against sentence is advanced on the basis that the judge gave inadequate weight to the considerable available mitigation.[98]The pre-sentence report prepared on her behalf succinctly indicates:
“The aggravating factors in the case are the serious level of intra-familial sexual abuse against all of her children and some of these offences being perpetrated whilst she was in the company of her then partner (James Evans), the vulnerability of her children by the virtue of their ages, the prolonged nature of the sexual abuse and the child cruelty, the serious breach of trust, and some of these offences being committed in the company of her other family members. … It would appear the mitigating circumstances in this case are that she reports to have been in an abusive and controlling relationship prior to the commission of her index offences, her low intellectual levels, her social naivety, and she is liable to be suggestible, easily manipulated and influenced by those who are more able than her (As indicated in her Psychological Assessment). It is my assessment based on the Police Reports, the Psychology report completed by Dr Jamila Begum dated 9th June 2019, the witness statements, her demeanour in the PSR interview, that her offending was primarily motivated by her distorted sexual thinking and beliefs, the fear of being physically assaulted and reported to social services about her poor parenting skills, her low self-esteem and according to the physiological report being easily led and her low intellectual level could have been contributory risk factors in her offending behaviour. Ms Webb gave the impression in the interview that she could be easily led by others.”
[99]The trial judge’s sentencing remarks are carefully structured, comprehensive, and considered. Significantly, he assessed NaW’s culpability to be less than that of some of the other defendants “and in particular in relation to James [Evans]. … I really do not know whether you would have committed any of these serious sexual offences if you had not been in an abusive relationship with James. But I think it is far less likely that you would have done. … He was the principal offender in this series of cases. It was his sexual deviance and his influence on you which affected your judgment.” For this reason and other aspects of the mitigation as reflected in the pre-sentence report (see above) and amplified in oral submissions in mitigation he reduced culpability from top of the range culpability A, which would indicate a sentence of 17 years having regard to aggravating features, to the bottom end of category range B, which indicated a sentence of 11 years for a single offence.[100]Further, “one feature which plays a very large part in my sentencing decision. You pleaded guilty to enough charges to make the prosecution decide that they could accept those pleas, and you agreed to be a witness for the prosecution. You have given evidence as a prosecution witness in all three trials. This will make a big difference to the sentence I must pass.” The judge was satisfied that her decision to give evidence was to make sure that James Evans was convicted and that her evidence against James Evans and another defendant, Matthew Evans, was instrumental in their convictions. Although she had attempted to exonerate some of her other family members whom the jury nevertheless convicted, the judge concluded that a 50% reduction would be appropriate for this latter element of mitigation.

Discussion

[101]Having regard to the sentences imposed upon JE, it is reasonable to assume that, absent any aspect mitigation, the judge would have considered a custodial sentence in the region of 25 years to be appropriate in NaW’s case. The determinate sentence of 9 years is therefore markedly reduced.[102]We accept the judge’s categorisation of harm and culpability for the serious substantive offences of sexual abuse and endorse his decision to pass a concurrent sentence in relation to the other substantive counts of sexual abuse, the conspiracies and the child cruelty charges to address the principle of totality. The judge reached an overall sentence prior to reduction for “assistance to the prosecution” of 21 years. This was discounted by 50% and reduced for plea.[103]Ms Orchard concedes that a determinate sentence of 25 years after trial, but before mitigation, would not be manifestly excessive. Her well-articulated submissions are, in reality, a powerful plea for mercy. However, we necessarily recognise the trial judge’s advantage of seeing NaW give evidence in three trials and having regard to his assessment of the JE in trial 1. We are satisfied that he made a significant reduction in assessing NaW’s culpability by reason of her ‘personal mitigation,’ he was well placed and fair in assessing the assistance provided in the three trials, he expressly acknowledged the difficulties that NaW would face in the prison estate. The sentence was predicated and mandated to mark the repeated detestable acts of child sexual abuse and cruelty against her own children.[104]The sentence cannot be said to be wrong in principle or manifestly excessive. We dismiss NaW’s appeal against sentence.

Luke Baker

[105]LB was convicted and sentenced as indicated in paragraph [11] above. His appeal against sentence is advanced, primarily, on the basis that the judge had insufficient regard to the appellant’s age at the time of committing the offences; that is, he could not have been older than 14.[106]In his sentencing remarks the judge said that he did not forget that LB was 14 at the time of committing the offences and that “it makes a very big difference, as I shall explain.” He referred to R v Ahmed & Ors [2023] EWCA Crim 281 and the Overarching Guideline for the Sentencing of Children and Young People, more particularly paragraphs 6.42 to 6.47.[107]The judge was referred to but made no specific reference to the Sentencing Council’s Guideline on “Sexual Offence – Sentencing children and young people.” However, we note that the judge did, in his introductory remarks, single out the younger defendants including LB, on the basis that:
“The prosecution have suggested that the three of you may have been sexually abused yourselves as children by adults in your own family…. I know that each of you denies that that has ever happened and none of you has put that forward as mitigation in an attempt to reduce your sentence. However, it is a fact on the established evidence in this case, and based on the convictions of variously your parents', aunts', uncles', grandparents' generations, that you three grew up, to a certain extent, in an environment where sex between adults and children was considered by the adults to be acceptable, and the conviction in relation to the conspiracy counts those adults faced demonstrates that. So, while you may not have been directly sexually abused yourselves, it is a feature of your lives which, in my judgment, may well amount to a form of sexual abuse which I consider means, together with your youth at the time you committed your offences, that you three are not responsible in the same culpable way for causing the extremely severe psychological harm to [C1] and [C3] which those boys did suffer.”
[108]The judge stated that he was not persuaded that LB had caused or contributed to the severe psychological harm caused to MC1 and he did not consider MC1’s age to signify “extreme youth”. However, he went on to say:
“Having considered all of those things, I have to think what would the right sentence be? Are you somebody of whom I can say this is not so serious that I have to send you to custody? Well, I am afraid rape of a child under 13 and penetrative sexual activity, these offences and in these circumstances, are in my judgment so serious that neither a fine alone nor a community sentence can be justified. I know a custodial sentence is a last resort, but it means that I do have to look at the adult guidelines.”
[109]If sentencing LB as an adult offender the categorisation would be level 3 harm and B culpability for rape and level 2 harm and B culpability for inciting penetration by MC1, each with a starting point of 8 years. The offences took place on the same occasion but the fact that there were two separate offences committed would justify slight increase to 9 years. He went on to say:
“Still, on the adult guideline calculation, bearing in mind your personal mitigation, Luke Baker, I am coming down to six years before I make the adjustment because I have to sentence you for being a 14-year-old at the time. I have decided that the proper approach is to say your sentence should be 40 per cent of what it would have been for an adult. Doing it on a calculator, 40 per cent of that would be 28.8 months. I am not going to make it 0.8 months; I am going to make it twenty-eight months for calculation purposes. It is two years and four months. I cannot go lower. I have tried respectably to do so but I do not consider it right to try and engineer a sentence to make it fit into a suspended sentence regime. I have had to consider, despite that, the overarching guideline for the imposition of custodial sentences, and I do. I have decided it is a sentence of last resort as I have already said and I have come to the conclusion, and this is appropriate because you are an adult, that appropriate punishment can only be achieved by immediate custody. I have decided that despite the pre-sentence report saying that you are a high risk within the family, it says that can be reduced, actually, by imposing an immediate custodial sentence and you addressing your distorted thinking of beliefs. I recognise that the writer of the pre-sentence report has not attached any significance to the eight years of no offending since the offence was committed, and I attach great significance to it, as I have said. Partly for that reason and partly because of the length of the sentence that would be appropriate, you do not trigger the dangerousness provisions. This is not a case where an extended sentence is appropriate. Because you were under 18 at the time, that does not trigger the offender of particular concern additional licence.”
[110]Notably, the factors identified by the judge in [107] above are highlighted as possible pre-cursors of leading a young person to commit sexual offences in the Sentencing Council’s Guidelines on “Sexual Offence – Sentencing children and young people”. In assessing the seriousness of the offence, the Guideline gives examples of the type of culpability and harm factors that may indicate a particular threshold has been crossed. It is said that “a non-custodial sentence may be the most suitable disposal for “any form of sexual activity (including penetration) without coercion, exploitation or pressure except where there is a significant disparity in age or maturity.”

Discussion

[111]As made clear in paragraph 32(v) of Ahmed, the court is not necessarily bound by the maximum sentence applicable to the child offender, and nor is the starting point of the sentence that was likely to be imposed shortly after the time of offending necessarily the end point; see [32](iii) and (vi). Further, recognising that the sentencing court may well be faced with difficult comparatives of what sentence was available in respect of the young offender at the time of offending and that which could now be imposed, “judges are experienced in grappling with the various difficulties which can arise in the context of sentencing for historical offences. In any event, if principled application of the law requires difficulties to be confronted, then they must be.”[112]We have regard to the judge’s insightful observations concerning LB’s upbringing and background and note the substantial reduction made to what would be the appropriate sentence for an adult offender. LB’s offending was deemed to be ‘one-off’ and not part of a course of conduct. He had not offended subsequently. He had no previous convictions. Nevertheless, we are not persuaded by Ms Bates well-structured and constructive written and oral submissions, that the judge was in error in ‘ruling out’ a non-custodial disposal in this case. This was very serious offending. However, in our view the sentence which he passed was too high given LB’s age and the highly unusual nature of his personal mitigation.[113]Consequently, we allow the appeal against sentence. We quash the sentence of 28 months and substitute an immediate determinate sentence of 18 months in recognition of the 12 months imprisonment served. Renewed application for permission to appeal against sentence.[114]It appears that VG has attempted, but unsuccessfully, to abandon this application. She is unrepresented, and in the circumstances, we proceed to consider her application on the papers.[115]VG was aged 66 at the time of sentencing. There was no issue but that the offending was of the most serious culpability and harm. The grounds of appeal are that the judge uplifted the relevant DSG starting point of 13 years excessively to reach 17 years, gave insufficient weight for age, previous good character and time which had elapsed since the commission of the offences.

Discussion

[116]The judge presided over VG’s trial. He sentenced her on the basis that she had caused C1 to have sexual intercourse with her on three occasions. He determined there were aggravating features: the offences committed in C1’s home environment; C1 was compelled to leave home and school; the offences had been committed in presence of others – “there were two of you involved in this offending.” Nevertheless, he reduced sentence to reflect mitigation by two years to arrive at 15 years imprisonment.[117]We agree with the single judge: the trial judge’s categorisation of the offending was not in issue. His uplift from the starting point was to reflect repeat offences within the single count. He made appropriate reduction for mitigation.[118]This sentence is not arguably wrong in principle or manifestly excessive. The application is refused.

Addendum

[119]Subsequent to the preparation of this judgment but prior to hand down, the Registrar received a duly completed Form A (notice of abandonment) signed by VG.