R v Jagath Arachchige [2025] EWCA Crim 363

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.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 363Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Wednesday, 12 March 2025
Before
LORD JUSTICE JEREMY BAKERMR JUSTICE GOOSEMR JUSTICE CONSTABLE
Between
REXCrownV
Between
JAGATH ARACHCHIGE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR R MORGAN-JONES appeared for Applicant_________APPROVED J U D G M E N T
[1]The applicant was convicted of two counts of kidnapping (counts 1 and 3), one count of sexual assault (count 2) and one count of committing an offence with intent to commit a sexual offence (count 4). He was sentenced to a determinate sentence of 12 years with a four year extended sentence for kidnapping (count 1) and six years concurrent on each of the other counts.[2]This is a renewed application for an extension of time of 910 days in respect of conviction and 594 days in respect of sentence and leave to appeal against conviction and sentence following refusal by the single judge.[3]This case involved two allegations of kidnapping on two consecutive dates, 15 and 16 December 2017, involving two completely unrelated complainants.[4]The first incident involved a finding by the jury of sexual assault, the second involved their finding that the kidnapping was carried out with the intention of sexual assault.[5]The single ground of appeal against conviction relates to the case relating to the first complainant, C1, although it is said that to the extent the ground of appeal is justified it pollutes the case in respect of the second complainant, C2.[6]The prosecution's case was that on 15 December 2017, C1 had her work Christmas party in Bristol. She consumed quite a lot of alcohol and had stayed in a bar until 4.00 am. C1 described herself as "out of control". She could not really see properly and could not stand up. She needed to get to her home in Congresbury, North Somerset. She called a friend who was asleep but who did not answer her calls. She called a taxi firm but in error their taxi was dispatched to a different pick up location. Meanwhile the applicant had driven into the city centre at around 3.40 am.[7]C1 woke up in the applicant's car at a drive through in Filton and she chatted to him, believing he was the cab driver. The applicant bought her a McDonald's.[8]There then followed a series of events during which C1 woke up and fell asleep in various places and at various times. At one point C1 woke up, she said, in a secluded corner of the car park in a service station at around 7.30 am. C1 said that the applicant was trying to reach under her pants to touch her vagina and went to put his hand down her top. She pushed him away and asked where they were. The applicant replied that they were on the outskirts of Birmingham. C1 asked why and the applicant replied that she had said she wanted to go to Scotland. C1 denied she had said this and threatened to phone the police and said she needed to go home. The applicant panicked and promised to take her straight home. The applicant then drove north and then back down south towards Bristol. C1 passed out again and when she woke up she messaged her friend saying that she was freaked out and needed him. Her friend telephoned her and told her to take a screen shot of her location and asked the driver to take her to a particular services near Portishead where he would meet her. The applicant agreed but when they got there her phone had died and she could not contact her friend.[9]The applicant said he was going to get some cigarettes. He returned to the car with a hotel key and said he thought she wanted to get some sleep. C1 declined and insisted that she wanted to get home. She thought that at some point while they were parked up at the hotel the applicant took a photograph of her on his phone and that that was when she noticed that her top was pulled down around her waist. The applicant left again, saying that he was going to return the hotel key and buy some more cigarettes.[10]When he returned C1 insisted again that she needed to get home and put her address into the maps app on the applicant's phone and the applicant drove her home. On the journey he was making light of things and asking C1 to promise that he could take her out for dinner. He dropped C1 outside her house and she went inside.[11]The prosecution case was that these journeys were part of the applicant pursuing his need for sexual gratification and had nothing to do with giving C1 a lift home. The prosecution alleged that the applicant had picked up C1 by fraud, either expressly or impliedly, on the basis that he was a taxi driver who would take her straight home. When he touched her on her breasts and vagina he did so without consent.[12]The prosecution relied on the fact that the applicant had been having sexual communications on "FabSwingers" and "Kik messenger" in the days leading up to this offence, including with users referred to as "the Tamworth couple" and indicated that he was willing to meet up closer to Birmingham. This showed that in the early morning of 16 December the applicant was considering driving to Birmingham or partway there to meet a like-minded couple for sexual activity.[13]C1 gave evidence, as did her friend and there was evidence of their communications by text that evening. There was cell site evidence and there was evidence from a number of people about what the complainant had said about what had happened. There was also a recording of part of the journey which the applicant made, starting at 5.34 am and there were two photographs of C1. It is these photographs that are central to the ground of appeal.[14]The following day C2 was out for her staff Christmas party. At 2.00am she left a club by taxi to go on to a further club. She was drunk and was not walking straight. Once she arrived at the second club and her taxi had driven away she realised she no longer wanted to go inside. She assumed the cars parked outside of the club were a taxi rank and approached the applicant's car, which she thought was a taxi, and gave her address in Southville. He said yes and she got into the back seat. They had a friendly conversation. C2 said that the applicant drove her in the opposite direction to Southville up the M32. When C2 realised they were not travelling the route to her home, she began to panic and told the applicant to take her to her house and then to stop the car and let her out. The applicant was deflecting and not answering her questions about where they were going.[15]At some point she phoned her friend. She was shouting that she wanted to go home and her friend heard a man reply that they were going to see his friends. At 3.59 am she took a screen shot and made a 33 second audio recording when she was in the applicant's car in the vicinity of the M32. She could be heard saying, "Take me to Southville please, take me." The applicant grabbed her phone and was annoyed she was recording. C2 managed to retrieve her phone from the applicant. She jumped out of the taxi when it stopped and phoned a separate taxi to take her home.[16]The prosecution case was that when the applicant picked up C2 in his car he did so by fraud, either expressly by claiming to be a taxi driver or impliedly making out he was a taxi driver or giving the impression that he would drive her straight home. He kidnapped her with the intent to commit a sexual offence against her.[17]The prosecution relied upon C2’s account, cell site data, the audio recording, the evidence of the friend of C2 and also from C2's mother who described how at 6.00 am on 17 December the applicant came to the door of her home and returned her daughter's purse. She asked the applicant if he was a taxi driver and the applicant said "no".[18]The prosecution also relied upon evidence which was read to the jury that on 30 November 2017 the applicant was found in his car parked in a secluded area of the downs in Clifton at 3.30 am with a young student who was extremely drunk. He explained that he had picked up the student in a club and was going to give her a lift home after they had gone to see the lights at the Clifton suspension bridge. He did not know the student's name or where she lived. The student was taken home by the police officers who gave the applicant strong words of advice about his actions. The prosecution suggested that this incident demonstrated similar behaviour to those alleged at trial, two weeks before the alleged counts on the indictment.[19]The applicant gave evidence at his trial. His defence was effectively one of denial. In short, his evidence was that C1 and C2's presence in the car throughout was consensual. In relation to C1, he denied sexually assaulting her when she was asleep. In relation to the photos he said that he felt stupid and took the photo of C1 to record what happened. He denied taking any naked photographs of her and paid little attention to whether her top was up or down. The applicant said that the incident with the student in Clifton on 29 November supported the defence case that he was in the habit of helping young, intoxicated women to get home in the early hours of the morning. The extension of time[20]Mr Morgan-Jones, counsel for the applicant on this appeal but not before, accepted that there had been a substantial delay in the submission of the application for leave to appeal. Counsel explained that there were initially real difficulties in arranging conferences to see the applicant in circumstances where he was moved from one prison to another without his legal team being informed. An effective conference took place on 16 September 2022 and thereafter there was a further specific issue in relation to the scope of any application to pursue the permission to appeal both in relation to conviction and sentence and arising from a question as to whether the defendant's current legal team would be able to represent him in relation to this application. Counsel then accepted candidly that further delay was his responsibility on account of his ill-health. The thrust of the submission was that the delay was not the applicant's fault and should not prejudice the proper consideration of this application.[21]In circumstances where, for the reasons we will go on to give, the applications for leave to appeal against conviction and sentence are not reasonably arguable, it is not necessary to conclude whether the reasons given are good reasons. In circumstances where refusing the applications for an extension of time causes no prejudice, the applications are refused. Appeal against conviction[22]The single ground of appeal relates to the two photographs. The agreed facts based on telephone data included one fact which stated:
“Pages 18 and 19 in the jury bundle are photographs taken by Jagath Arachchige on his telephone at 9.54am on 16 December 2017.”
[23]It is common ground in this application that this ‘agreed fact’ was not in fact correct. The timing of the photos could not have been identical to the millisecond for both photographs because they were taken from plainly different positions and at therefore different times. In fact the time and date referred to in the agreed facts related either to the time the image was viewed on the device or when the cached images were updated by the automatic system process. It did not relate to the time the original images were taken or created on the device.[24]Notwithstanding the agreed fact, the judge addressed this in his summing-up. The judge pointed out the obvious inference to be drawn as to the accuracy of the time from the different nature of the images and then made a number of comments. The first point to which objection is made is as follows: “And these two here, members of the jury, 9.50 and 9.54, again may be very important to certain aspects of the evidence in this case. 9.50, the call data shows the telephone of [C1] using cell sites near her home in Kent Road. And if you put in the right hand margin there, see page 122 of the call log of admissions. You'll, you'll see those two calls there. 9.54, two photographs were taken inside the Honda Accord by the Defendant on his phone. Those are the ones produced. And you're going to have to make your mind up about that. You've seen the photograph. You've got it. And there are three, two of which you have. And you will have to decide, this is the point, whether those photographs were taken then, because it's quite clear she's in two different positions. He's in two different positions. They were clearly not taken at the same time, you may think. And what you can see through the side window is different. And so from the evidence, and I remind you of it, this is something you're going to have to make your mind up ... “[25]The second passage later in the summing-up is as follows:
“They were clearly not taken at the same time, you may think. And what you can see through the side window is different. And so from the evidence, and I remind you of it, this is something you're going to have to make your mind up, she has said that she was guiding him to her home, didn't want him to know where she lived and paused around afterwards to stop him knowing, do you recall, and, as I've reminded you, guided him to that. And you will have to make your mind up whether those, at 9.54, are consistent with her being asleep in the state she's in, in that car. And I'll remind you in due course of the state she was noticed by her sister being in, when she walked in at 10, with makeup smeared over her face. So these are the matters you're going to have to decide about, whether those photographs were taken at that time or not. If they were not, what, then, do you, what conclusion do you then come about them being on his phone with that, that timing?”
And later:
“... these are matters that you'll have to consider in relation to this aspect, because if, if you reject the suggestion made by the Defendant, and certainly he presents it as, as, as proved by that, those photographs on his phone, she was happily asleep in the car, in two positions, and you can see the photograph, members of the jury, looking, you may think, very well at that time. So were they taken then? And if not, why are they, why are they, as it were, created which is what it says, at 9.54?”
And later:
“You will have to decide whether those photographs were, in fact, taken then and why they appear to have that creation time. Crown suggest, of course, it's part of everything else in this case, after the event, quite a clever forensic method of, if I put it this way, making it up as he went along. He says that that's not at all true. It was taken then, and she had fallen asleep at that time during that journey, taking him [sic] to Congresbury, to her address, and he hadn't noticed she was asleep, and you will have to make your mind up about that.”
[26]Mr Morgan-Jones in both his written submissions and his able oral submissions before us today, argued that in a case where the credibility of the two complainants and the applicant were central to the determination to be made by the jury, these passages amounted to a material misdirection of the jury which calls into question the safety of the convictions. He said this was particularly so when focusing on whether the prosecution had succeeded in respect of the count of sexual assault. It is this count, Mr Morgan-Jones submitted, which was central to the case.[27]It is said the judge was wrong specifically to invite the jury to consider the credibility of the defendant in the context of the timing of these photos where the matter had been dealt with as an agreed fact. It is said that this contrasted with the usual direction that the jury should only make findings on matters which were necessary to reach their verdicts.[28]We do not consider that this submission has merit. At the outset we acknowledge that it was not ideal that the agreed facts were objectively incorrect. Whilst the question raised by the judge about the timing of the photographs was a logical and reasonable question, we also consider that it would undoubtedly have been a better course of action for the judge to have raised the issue of the inherent probability of the correctness of the timing with counsel in the absence of the jury at some point prior to his referring to this matter in his factual review of the evidence. However, that does not mean that it was not open to the judge to explain to the jury the basis on which they might, if they chose, draw an inference from the real timing of the photographs, whatever they considered that might be. That did not amount to illegitimate judicial comment, even if it had not been previously raised with counsel.[29]The question for us is whether or not this, in all of the circumstances of the case, rendered the conviction unsafe. As pointed out by the single judge, this issue was at the very most tangential in a case in which the evidence against the applicant from two unconnected females making similar complaints about conduct on consecutive nights was very strong. The photographs and any issue as to their timing formed a very small part of a very lengthy summing-up in respect of which no complaint is otherwise made as to its fairness or accuracy. Furthermore, in mitigating any potential effect of the issue around the timing of the photographs, the judge properly made it clear at the outset of his summing-up, as is both usual and important, that if in the course of his review of the evidence he appeared to express any views concerning the facts or appeared to emphasize a particular aspect of the evidence, the jury should not accept those views unless they agreed with them. The judge rightly emphasised that when it came to the facts it was the jury, and the jury alone, that had the judgment which counted.[30]In our view it is not reasonably arguable that the manner in which the judge addressed the timing of the photos renders the convictions unsafe and the renewed application for leave to appeal against conviction is refused. The appeal against sentence[31]Mr Morgan-Jones argues that the custodial element of the sentence, namely 12 years, was manifestly excessive. He does not take issue with the extended licence element of the sentence. He relies in particular on the following features in what he describes as a particularly unusual case. First, that the kidnap took place by fraud rather than violence, and secondly, that the core of the kidnap allegation was the sexual assault which whilst unpleasant again did not involve violence or a threat of violence.[32]We cannot accept these submissions. We agree with the single judge that the sentencing judge was well-placed having presided over this lengthy trial to assess the culpability and harm caused by these offences. Count 1 was taken as the lead offence and the sentence was to reflect all of the offending against both complainants. The judge's approach to sentencing was logical and fully reasoned and he was entitled to consider that tricking two inebriated women into getting into his car late at night so he could drive them to isolated locations and sexually assault them was extremely serious. The offences were carefully planned and were substantially aggravated by the prior incident in which the applicant had been specifically warned about this behaviour. The prolonged nature of the incidents and the taking of the photographs were further aggravating features.[33]The judge also noted that he had well in mind, as he was right to, the devastating impact on the victims this offending had had. The judge was also entitled to consider on the basis of the pre-sentence report that the applicant had no remorse and had little insight into his behaviour. The custodial element reflecting four offences over the two incidents set against the maximum sentence of life imprisonment for kidnapping is not arguably manifestly excessive. The renewed application for leave to appeal against sentence is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE34. Tel No: 020 7404 140035. Email: rcj@epiqglobal.co.uk