R v Lloyd Sands [2026] EWCA Crim 15

[2026] EWCA Crim 15Case No 202403330 B4202403335 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HER HONOUR JUDGE ALISON RUSSELL
46ZY1923319
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/01/2026
Before
LORD JUSTICE HOLGATEMR JUSTICE MORRISHER HONOUR JUDGE RAFFERTY KC
Between
REXRespondentLLOYD SANDSAppellant
Gordon Ross (instructed by Dunbar Solicitors) for AppellantMarion Smullen (instructed by Crown Prosecution Services) for RespondentHearing Hearing dates : 18 December 2025
Approved JudgmentThis judgment was handed down remotely at 11:00 am on 20 January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Reporting restriction

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.

Introduction

[2]On 23 August 2024, in the Crown Court at Canterbury before Her Honour Judge Alison Russell, the appellant was convicted of rape (counts 1 and 3), attempted rape (count 4) and voyeurism (count 5). He was acquitted of a sexual assault (count 2). On the same day the appellant was sentenced to an overall term of 12 years’ imprisonment, comprising a term of 12 years on count 3, and concurrent terms of 9 years on both counts 1 and 4 and 9 months on count 5.[3]With the leave of the single judge the appellant appeals against conviction limited to grounds 2 & 4. He also renews his application for leave to appeal against conviction under ground 5. Finally the appellant appeals against sentence with the leave of the single judge.[4]We will refer to the complainant as C. The appellant and C were in a relationship for around 3 years between 2016 and 2019. Their twins were born prematurely in July 2017, which resulted in C having a good deal of extra responsibility for their care. The twins came out of hospital in early October 2017.[5]On 12 December 2017, C and the appellant together with their children, moved from their home to a new address. But in early October 2019, they were packing up to move back to their first home.[6]On 31 October 2019, C first contacted the police about the appellant She had discovered that the appellant had been stalking her through her mobile phone using an app that he had installed on it. He was able to view C’s location and calendar and all her messages and videos without her knowing. She disclosed to the police that the appellant had tried to rape her anally a few weeks before. In her subsequent ABE interview she made further disclosures of sexual abuse during the relationship. On 1 November 2019, the appellant was arrested. His mobile phone was seized. In addition to messages between the appellant and C, the police discovered 12 videos of the appellant and C having sex. In one of the videos, made on 9 September 2019, the appellant was penetrating C’s anus and she could be heard saying that she did not like it and really wanted him to stop.[7]On 28 May 2020 the appellant pleaded guilty in the magistrates’ court to the offence of stalking C between August and October 2019, for which he received a community order. He had no other convictions, cautions or reprimands.

The prosecution case

[8]The prosecution case was that the relationship deteriorated after the twins were born. The appellant could not seem to accept that they needed to be looked after. He often pestered C for sex. C would give in to his demands in order to have a quiet life. The appellant told the complainant that he had fantasies about restraining and raping her. He became more aggressive and demanding about having sex. He wanted anal sex with C, which she did not want. C was so worn down by the appellant’s behaviour that she would often submit to sexual activity, rather than genuinely consent to it.[9]C gave evidence (which included redacted versions of her ABE interviews). She said that their relationship began to deteriorate after the twins were born. The appellant started to monitor what she was doing and call her to check up on her when she was out. The appellant would go on about having sex. He would get angry with her if she turned him down. In the end she would just go upstairs and have sex with him in order to get it over and done with. She did not have any fantasies. The appellant told her that his fantasies included trying to have sex with her when she was asleep, tying her up and rape fantasies. When she was sleeping, the appellant tried to undress her and have sex with her without waking her up. She described the specific occasion in 2017 when she woke up because her son was crying, to find the appellant withdrawing his penis from her vagina, after having ejaculated (count 1). There were several occasions when the appellant would attempt to or would penetrate her while she was asleep.[10]Although C said that the appellant had used her hand to masturbate him while she slept (count 2), the jury acquitted him of that allegation.[11]C said that the appellant enjoyed anal sex but she hated it. It was painful because of her hypersensitivity condition. She would “play possum” in order to let him get on with it. The appellant would try to force anal sex every time, even though she said “No”. The appellant would use restraints to tie her arms and legs around the bed which she did not like or want. C accepted that she did try consenting to anal sex every other week so that on those occasions it would be on her terms rather than forced upon her. But she described an occasion when the more she said no to anal sex, the more the appellant did it anyway (count 3). This was the incident seen on the video made by the appellant on 9 September 2019. She denied that she and the appellant had a safe word to indicate when she was not consenting to sex.[12]In October 2019, when packing up to move out of their second home and back to the first, the appellant was badgering C for sex. She consented to vaginal sex. When the appellant was unable to ejaculate, he attempted to force his penis into her anus despite her saying no. She managed to get away from him on that occasion (count 4). She did not know about the sex videos until the police told her. She said that she had not consented to them being made (count 5).[13]In addition the prosecution relied upon:(1) Text messages between the appellant and C, to support C’s account of their relationship.(2) The videos found on the appellant’s phone, as evidence in support of counts 3 and 5.(3) Evidence of complaint from two of C’s friends.(4) Adverse inferences from the appellant’s failure to mention facts in interview.(5) The appellant’s previous conviction for stalking C, including the circumstances of that offence, as evidence in relation to the appellant’s conduct during their relationship.

The defence case

[14]The defence case was that any sexual contact was consensual. Either C consented to the sex or the appellant had a reasonable belief in consent.[15]The appellant gave evidence. He denied being possessive. He accepted that by May 2019, there was not much passion in their relationship. He also accepted installing the Hoverwatch app on C’s phone and that he may have been unreasonable or selfish during their relationship. But he denied ever having sex with C while she slept. He knew that she did not like it.[16]The appellant said that C consented every time they had anal sex and that she liked it. The complainant would goad him into more aggressive sexual activity. After one occasion when C kept changing her mind during anal sex, the two of them agreed in future to use a safe word, “Pineapple”. The appellant said that he believed that C was consenting during the sex filmed on 9 September 2019, because she did not use that word. The appellant denied that he attempted to force his penis into C’s anus in October 2019. He said that they resumed consensual vaginal sex after C said that that she did not want to have anal sex. C was aware that he was recording the sex videos and she agreed to that.[17]In her ABE interviews C had said that she did not have any sexual fantasies. The judge allowed the defence to elicit evidence from C to correct that impression: between 9 and 31 October 2019, C sent a series of WhatsApp messages to a man known as “B”, engaging in sexual fantasies and role play. The appellant’s case was that this supported the view that the appellant’s sexual activity with the appellant was consensual.

The issues for the jury

[18]The issue for the jury in relation to counts 1, 2 and 4 was whether the alleged events occurred and if so, whether C consented to the sexual activity. In relation to counts 3 and 5 the issue was consent, both in relation to the sexual activity and the filming.[19]The appellant’s evidence was broadly in line with the Addendum to the Defence Case Statement produced on 7 August 2024 shortly before the trial. This said that the parties often engaged in anal and vaginal sex, which was always consensual, and that C did enjoy anal sex. It was in this context that the Addendum introduced the issue of “consensual non-consensual sex”. The appellant said that C had said that when she had told him to stop during anal intercourse she had not meant it, and he should ignore her requests to stop. This was a form of role play. They then decided to use the word “Pineapple” as a safe word to indicate when C really meant that the appellant should stop. This was disputed by C.[20]It is therefore plain that both the prosecution and the defence made the history of the sexual behaviour between C and the appellant a central feature of the trial because of its relevance to the issue of consent.[21]Grounds 2 and 4 allege that the judge failed to give directions on the use to which evidence about the appellant’s past behaviour towards C could, and could not, be put. It is necessary to see these issues in context.[22]The trial ran from 13 August until 23 August 2024. The split summing up took place on 22 and 23 August 2024.[23]In January 2024 the prosecution had made an application to adduce evidence of the stalking conviction and its circumstances. The prosecution relied upon s.98 of the Criminal Justice Act 2003 and in the alternative they submitted that this was important explanatory evidence admissible under s.101(1)(c). The application was opposed by the appellant.[24]The judge gave her ruling on this application at the end of the morning of the first day of the trial. She said that the prosecution’s case was that C had merely submitted to certain acts of sexual intercourse against her will. Part of the context for understanding the evidence on this point was the appellant’s control of, and possessive attitude towards, C. The stalking offence occurred during the relationship and during the time when some of the alleged offences were committed. It was when the police investigated the Hoverwatch app used by the appellant that they discovered the videos he had made. The judge ruled that the stalking material was admissible under s. 98 or alternatively under s. 101(1)(c) as important explanatory material relevant to the issue of consent.[25]Ground 1 sought to challenge the admissibility of the conviction and circumstances of the stalking. The single judge refused the appellant leave to appeal on this ground and counsel has confirmed that there is no application to renew it. Nevertheless, the basis upon which this material was admissible is closely related to ground 2, for which leave has been granted, and which complains about a failure by the judge to direct the jury on the purposes for which it could and could not be used.[26]Ground 3 challenged the judge’s decision to admit evidence in C’s ABE interviews of sexual behaviour towards her during their relationship. However, assuming that this material was admissible, ground 4 criticises the judge for failing to give directions on how it could, and could not, be used.[27]On Monday 12 August 2024, the day before the trial began, the appellant’s counsel submitted legal objections to the admissibility of a large number of passages in C’s ABE interviews contending that they amounted to bad character evidence against the appellant for which no application had been made under the 2003 Act. These objections were dealt with during the afternoon of the first day of the trial, after the judge had given her ruling on the stalking matter. Counsel’s advice says (para 6) that the judge did not give a formal ruling in relation to these objections, but rather she went through the disputed parts of the ABE interviews with counsel and gave her decisions in relation to each one. On some points she agreed with the prosecution and on others she agreed with the defence. However, Mr Ross, doe the appellant, told us that a substantial amount of material was removed in accordance with the judge’s directions.[28]In the respondent’s notice Ms Smullen, prosecution counsel, says that Mr Ross for the appellant did not ask the judge to reconsider her decisions or to make a formal ruling. Counsel’s advice did not specify any particular part of the redacted ABE interviews which are now challenged. Paragraph 17 gave a general summary of material which had been objected to but which remained. Not surprisingly, the respondent’s notice said that if the appellant was going to pursue ground 3, which sought to criticise the admission of what was said to be bad character evidence in the ABE interviews which went before the jury, then a transcript of the trial in the afternoon should be obtained up to 15.40 setting out the appellant’s objections and the judge’s observations. That has never been pursued.[29]When refusing leave on ground 3, the single judge said she was satisfied that all of the material in the redacted ABE interviews was properly admissible under s. 98 of the 2003 Act; it was a relevant part of the history of the alleged offending. She added that if counsel considered that there was a basis for arguing otherwise then he could renew the application for leave. In an email dated 5 October 2025 Mr Ross stated that the appellant was renewing this application for leave on ground 5, but not on grounds 1 and 3.[30]The upshot is that there is no challenge to the admissibility of either the fact of the conviction or the circumstances of the stalking in August to October 2019, or of any part of the ABE interviews before the jury. Mr Ross agreed that this material had all been properly admissible under s. 98.[31]We think that Mr Ross was correct to have accepted this point. The circumstances are similar to those in R v Stott [2018] EWCA Crim 538 at [11]-[13] (see also R v Sule [2013] Cr App R 3 at [11]).[32]The appeal against conviction is therefore solely concerned with the criticism that the judge failed to give any directions to the jury on the use to which the jury could, or could not, put this evidence. This is raised under ground 2 in relation to the stalking matter and ground 4 in relation to the ABE evidence.[33]Mr Ross’s advice stated at para.9 that before the judge’s summing up began, “the ‘usual’ discussions and submissions were made regarding the legal directions” to the jury, including bad character. But the advice did not go into this any further. For example, it was not suggested that counsel asked for a particular direction on the stalking conviction or the conduct referred to in the ABE interview which the judge refused to give. The defence did not ask for any ruling from the judge on any issue about directions on character or evidence received under s. 98. The respondent’s notice states that the appellant did not make any criticism to the judge of her proposed directions at the time, when, of course, any such issue should have been raised.[34]The appellant’s position shifted in the oral submissions made to us. Mr Ross said that although he thought he would have asked for a modified good character direction, he could not recall whether or not he had asked for any directions on the stalking conviction or allegations in the ABE interviews. No transcript has been obtained of the discussion on directions to reveal what, if any, submissions or draft directions were advanced by counsel, or any views expressed by the judge on any such submissions.[35]Ms Smullen then assisted the court by providing a copy of an exchange of emails between the judge and counsel. On 21 August 2024 just after 11.30pm, the judge sent to counsel a draft of her legal directions and route to verdict. She apologised for the lateness of the hour and said that the material could be discussed in the morning. She invited counsel to correct any legal errors. At 8.43am the next day Mr Ross replied to the effect that the proposed directions were “fine”, apart from a couple of typographical points, and the word “attempted” need to be included in the route to verdict for count 4. Ms Smullen added at 9.19am “one additional thing that I think needs to be in the legal directions which we did not discuss is the definition of ‘Attempt’”, implying that there has been some discussion during the trial on 21 August. Nothing was said about the material the subject of grounds 2 and 4.[36]Counsel’s advice on appeal said nothing about what directions should additionally have been given by the judge. In the afternoon before the hearing of this appeal, in response to a request from the court for assistance, Mr Ross did provide some suggested directions.[37]In R v Hunter [2015] EWCA Crim 631; [2015] 1 WLR 5367 this court assimilated the approach to be taken on an appeal to a challenge on the giving of good character directions to the key principles on appeals relating to bad character [89]-[[98]. Assuming that a judge had not made a mistake as to the principles to be applied, the circumstances in which this court will interfere with the trial judge’s exercise of judgment are limited. The trial judge’s feel for the case is usually critical. Context is vital. It is generally unhelpful to cite decisions of this court which do not lay down relevant principles, but which simply express observations on the application of those principles to the circumstances of that particular case. Such decisions are fact sensitive. The Court also added that if defence advocates do not take a point on character directions at the trial and/or if they agree with the judge’s proposed directions which are then given, that is a good indication that nothing was amiss. The trial was considered fair by those who were present and understood its dynamics.[38]No criticism is made of any of the directions which the judge did in fact give, as far as they went. The judge gave appropriate directions on handling allegations of rape and sexual offences and the avoidance of false assumptions. For example, she said that the jury should not treat C’s difficulties and distress while giving evidence as providing any indication about the truthfulness of her evidence. Having given standard directions on burden and standard of proof, the judge clearly identified for the jury each matter in relation to each count which the prosecution had to make the jury sure of.[39]This was reflected in the appropriate directions she gave on the issue of consent, which included this passage:
“So, submission is not consent. You must look at all of the evidence of the relationship between [C] and the defendant and decide whether she was so worn down by the defendant that she give in, or submitted to the sexual activity alleged, rather than genuinely consented. Now, if you are sure that [C did not want the sexual activity, penetration, video recording, and of course the sexual assault and the attempt, she did not want that to occur, but if you are sure that she was put in a position by the defendant's behaviour where she felt that she had no alternative but to allow it to happen, that would be submission and not consent. If, on the other hand, [C] was, or may have been reluctant to allow the sexual activity to take place, but did in fact agree to it, then that would be reluctant consent and the defendant would be not guilty.”
[40]It was in this context that

the judge went on to give these directions:

“You must decide whether you are sure that [C] did not consent. If you are sure that she was asleep (counts 1 and 2), that she told the Defendant to stop or said no (counts 3 and 4) or knew nothing of the video recording (count 5) then that is evidence that you may use to decide that she did not consent. However, in respect of count 3 you must also consider whether there was a prior agreement that the ordinary meaning of the words “stop” or “no” was overridden and that only the use of the safe word “pineapples” indicated an actual lack of consent, You have heard evidence about the nature of the sexual relationship between [C] and the Defendant. This is relevant when considering consent. The Prosecution does not say that the Defendant ignored the ordinary meaning of the words “no” or “stop” in respect of his sexual relations with women generally. Instead, when deciding the issue of actual consent, you must consider the nature of the relationship between [C] and the Defendant – was it one of submission or one of “consensual non-consensual” sex?”
Then a little further on, when dealing with reasonableness of the appellant’s belief in consent,

the judge said:

“ In respect of count 3, if you accept that the Defendant and [C] had, or may have, agreed previously that only a safe word (pineapples) would indicate lack of consent, or if you accept that the Defendant did, or may have, genuinely and reasonably believed that they had agreed to the use of that safe word to indicate lack of consent, then you must find the Defendant ‘Not Guilty’.”
[41]The judge gave a qualified good character direction in paras. 6.1 to 6.3 of the written directions to the jury:
“6.1 It is agreed that the Defendant has not been convicted of any previous sexual offence. This does not mean that the Defendant could not have committed the offences with which he is now charged, but his good character should be taken into account in his favour in the following way. 6.2 The fact that the Defendant has not committed any sexual offences before may mean that it is less likely that he would have committed the offences with which he is charged in this trial. 6.3 It is for you to decide what importance you attach to that taking everything that you have heard about the Defendant.”
[42]Mr Ross submits that the circumstances of this case are analogous to those in R v MA [2019] EWCA Crim 178 and so directions of the kind which the court required to be given in MA should have been given here. In our judgment MA was a rather different case and illustrates the difficulties referred to in Hunter of seeking to draw parallels with other decisions on appeal.[43]The indictment in MA related to a number of rapes alleged to have been committed by the husband against his wife over a period of about 5 years [5]-[11]. The judge allowed the prosecution to adduce evidence of alleged repeated acts of physical non-sexual violence inflicted by the husband on his wife during the relationship, none of which were charged on the indictment. He did so relying on s.98 of the 2003 Act ([12]-[15 and [28]-[35]). The Court of Appeal rejected the contention that the evidence was not admissible, although it considered that some of the material had been admissible under s.101(1)(c) or (d) of the 2003 Act, rather than under s.98. The evidence of controlling and abusive behaviour was potentially important to explain the wife’s behaviour, her relationship with her husband, to explain the husband’s dominance and the time which elapsed before she made her allegations to the police, which was relevant to consent [40]-[41]. However, taking into account the prominence which evidence of violence had assumed in the trial [44]-[45], the court said that directions should have been given on how that evidence was to be applied, whether admissible under s.98 or under s 101(1). The court did not regard the convictions as safe in the circumstances of that case.[44]However, in the present case it was not alleged that the appellant had committed physical, non-sexual violence during the relationship in addition to the sexual offences. The s.98 evidence related to the sexual relationship and to control. Indeed, in her first ABE interview, C said that it was during the attempted anal rape in count 4, the offence alleged to have taken place in October 2019, that the appellant had been really violent towards her for the first time.[45]In the present case all of the material to which grounds 2 and 4 relate was admissible under s.98. None of that material fell to be treated as bad character evidence under s.101(1). Both the prosecution and the defence relied upon the evidence of either C or the appellant about their past relationship and sexual behaviour to make out their cases on consent or reasonable belief in consent. The appellant maintained that C enjoyed both vaginal and anal sex and always consented to it. C said that she hated anal sex and she had submitted rather then consented to it.[46]This was a clear and self-contained issue for the jury to deal with. The judge presented it to them in clear and fair terms. The jury well understood that they had to decide whether they were sure about C’s evidence that she had been so worn down by the appellant that they were also sure that she submitted to sex rather than consented to it, or whether instead she may have reluctantly given her consent to sex, in which case he would be not guilty. The direction made it plain that the jury’s conclusions about the history of the relationship went to that issue, without any suggestion that it could have been relevant to anything else. Elsewhere the jury were warned not to rely upon an account given unless they were sure that it was true.[47]We do not consider that the directions now suggested by Mr Ross show that there was any material misdirection by the judge. Some of the suggestions were irrelevant to material admitted under s.98. Others sought to deal with issues which we consider the judge covered in a more accurate way. For example, it would have been of little help for the jury to be told that in so far as they found the evidence to be truthful that could use it “as evidence that bears on the nature of the relationship between the defendant and his wife.” Instead, the judge directed the jury on how their findings on the past history could relate to the specific issues on consent which they had to resolve.[48]There remains the stalking conviction. It is clear from the summing up that the stalking through the use of the app played only a small part in the trial as a whole. The judge helpfully gave a summing up divided into topics, one of which was the nature of the relationship between C and the appellant. She referred to the fact that with the arrival of the twins in 2017 the appellant began to monitor what C was doing, where she was going and with whom. He made her think that it was normal for him to call and check up on her when she was out and to check her phone while she was asleep. The judge referred to the appellant having pleaded guilty to putting the Hoverwatch app on the C’s phone in August 2019, because he said that he had been concerned about C communicating with another man. There was no suggestion that this evidence went to anything other than the general nature of the appellant’s relationship with C and the suggestion that he was controlling and possessive. The judge treated the conviction relating to the use of the app as admissible under s.98. We also note that the appellant does not say that the prosecution suggested to the jury that this evidence had any other significance which ought to have called for correction by the judge when she summed up to the jury.[49]Mr Ross suggested that one additional direction should have been given to deal with the admission of the stalking offence under s.98. We do not agree. The judge covered the relevance of the material to the nature of the relationship in any event. Beyond that, the appellant had the benefit of the agreed form of good character direction.[50]Overall the approach taken by the judge to her directions to the jury was very similar to that taken in Stott (see [13]-[14]). In the present case they were considered appropriate and fair at the time by those who were present and understood the dynamics of the trial.[51]Alternatively, even if we had taken the view that the judge ought to have given any further direction along the lines now suggested by counsel, we do not consider that a failure to do so could have rendered any of the convictions unsafe. As Ms Smullen pointed out, quite apart from the evidence of C, there was the incriminating material on several of the videos taken by the appellant, which, for example, supported some of the conduct alleged by C, and there were also a number of explicit text messages sent from the appellant’s phone from July 2019 onwards. She submitted that this had revealed much about the nature of the relationship between C and the appellant and its relevance to their sexual behaviour and the issue of consent. The appellant did not suggest otherwise.[52]For these reasons, and in the specific circumstances of this case, we reject grounds of appeal 2 and 4.

The renewed ground 5

[53]Ground 5 relates to the judge’s ruling on the appellant’s applications under s.41 of the Youth Justice and Criminal Evidence Act 1999 to elicit evidence and to ask questions in cross-examination about C’s sexual behaviour. Counsel’s advice challenges the judge’s decision in relation to text messaging by C with a male referred to as “B” between 9 and 31 October 2019. The application was made on 29 July 2024. The application relied upon s. 41(3)(c) and s 41(5).[54]In part of the application the defence submittedthat unless counsel was able to cross-examine C on the entirety of certain text messages with “B”, the defendant could not have a fair trial.The prosecution submitted that the application did not satisfy the strict criteria of s.41.[55]The judge gave her ruling in the morning of 15 August 2024 before C’s evidence began. She went carefully though the material in question, category by category. Some matters she allowed. Others she rejected on specific grounds.[56]In summary, the judge ruled in relation to the three categories of text messages with “B” as follows:(1) Wanting to be bent over a desk and fucked hard – The judge was not satisfied that the references in the texts to C wanting to be pinned over a desk and vaginally penetrated were necessary for the appellant properly to put forward his case in relation to the allegation of non-consensual attempted anal rape. On that occasion C had previously consented to vaginal sex with the appellant. In addition, the judge was not satisfied that it was material with sufficient similarity to fall within s.41(3)(c).(2) Wanting to be pinned down during sexual activity – the judge was satisfied that the behaviour was similar conduct which could not be explained by coincidence, however the main purpose of introducing the material was to impugn the credibility of C. In addition, the judge pointed out that this application was based on only one reference by C in a redacted ABE interview to the appellant pulling her hair, pushing her head down into pillows and telling her to tell him to stop. The judge pointed out that all the other references in the ABE interviews to that kind of behaviour had been removed as a result of the appellant’s submissions in the afternoon of the first day of the trial. None of the counts on the indictment related to the use of force in that way. Accordingly, the judge was also not satisfied that this was truly probative on the issues at the heart of this case (R v Hamadi [2007] EWCA Crim 3048at [23] and [25]). It was therefore excluded.(3) Wanting “B” to perform anal sex – the judge was satisfied that the content of the messages related to behaviour of a similar nature not reasonably explicable as a coincidence. But C also said in the texts that she did not do anal sex in real life. “That is why I put it in the chats so much – lol”. C then said that she could listen to B’s voice for hours on end and even that turned her on. The judge said “it is clear therefore that a distinction is being drawn between conduct which the claimant would engage in consensually in real life, and indeed has consensually engaged in with the defendant on occasion, and that which she engages in a fantasy with another man with whom she would not engage in anal sex, again consistent with her ABE interview that she would not have and did not have anal sex with anybody other than the defendant.” The judge said that she was not satisfied that this was material which the defendant needed to put forward in order to support his defence relating to the question of consent. It was material which fell squarely within the purposes of the exclusionary rules in s.41.[57]In response to a series of questions during cross-examination on count 3, and in particular that C and the appellant were engaged in role play, C denied that she would engage in role play and fantasies. In the morning of 16 August the appellant’s counsel renewed his s.41 application to seek to rely upon the messages between C and the male known as “B” in order to rebut the evidence C had given. He submitted that the appellant should have leave to cross-examine C about certain text messages, “or sufficient of the material to rebut the evidence given by the complainant in relation to fantasies and role-playing”.[58]The judge directed herself by reference to the statute and Hamadi, including the application of Art.6 of the ECHR to s 41(5). She decided that the WhatsApp chats should not be permitted to be adduced in full, as that would go further than was necessary to enable C’s evidence to be rebutted or explained on behalf of the defendant. However, in order to avoid the jury being misled and for the defendant to have a fair trial, the judge decided that the defence should be permitted to ask C whether she engaged in a series of WhatsApp messages with a male known as “B” relating to sexual fantasies and role play. If C accepted that she did, then the matter would not need to go any further. If C denied the fact, then the particular messages would be admitted into evidence.[59]Following the judge’s ruling, the complainant subsequently accepted in cross-examination, that between 9 to 31 October 2019, she sent a series of WhatsApp messages engaging in sexual fantasies and role play with “B”. The judge reminded the jury of this point in her summing up.[60]It is submitted that the judge was wrong to refuse the s.41 applications to adduce the previous sexual behaviour of C and in particular to refuse to allow all or any of the text messaging to be put before the jury and allow only one limited question to be put without any context or detail as to what the messaging was about.[61]Like the single judge we do not consider that the appellant has shown any arguable basis of complaint under ground 5. In R v Wilson [2024] EWCA Crim 1514; [2025] 1 WLR 2865 this court reiterated that the application by a judge of the correct legal principles applicable to s.41 is essentially a matter of judgment. The judge rejected the initial application to rely upon the whole of the text messages for reasons which are unimpeachable. The renewal of the application by the defence during the cross-examination of C raised the application of the test laid down by s 41(5). The judge applied that test exercising her judgment. In effect she took up the alternative option advanced in the appellant’s submissions. It is not arguable that the judge erred in that respect. We would add that neither the renewed application to the judge, nor her decision on it, could arguably have undermined the decision she had previously reached on 15 August 2024 when dealing with the initial application concerning the text messages with “B”.

Appeal against sentence

[62]The appellant was aged 30 at sentence. He had the one conviction for stalking for which he was sentenced on 20 September 2020 to a 12-month Community Order. This was his first custodial sentence. The judge did not direct a pre-sentence report. We consider that for the purposes of s.33 of the Sentencing Act 2020 no such report was necessary in the Crown Court, nor is required for this appeal.[63]We have read C’s victim personal statement which describes the effects the offending had had and continues to have on her.[64]In her sentencing remarks the judge said that during the latter part of their relationship, the appellant treated C as a sex toy, whose existence was to be there for his personal gratification, at such times as he felt necessary, with a total disregard for C’s feelings. The appellant badgered and pestered C for sex. The appellant’s messages demonstrated how he wore C down to a point where she submitted.[65]The judge said that the appellant took advantage of C when she was asleep, to engage in sexual intercourse to the point of ejaculation. Knowing that she did not like anal sex, he badgered her persistently, to a point where she would, on occasion, consensually engage to such sex. The 9 September 2019 video recording on the appellant’s phone graphically illustrated that the appellant could have been under no illusion that C was not consenting on that occasion. The appellant videoed other sexual activity without C’s consent or knowledge.[66]On the occasion when they were moving house, the appellant again pestered and badgered C until she consented to having vaginal sex. There was no doubt that if C had not managed to evade the appellant’s attempt at anal sex, he would have penetrated her anally, against her wishes and in the full knowledge that she did not consent.[67]The judge found that the appellant had no respect for C and it was clear from his evidence that the appellant had shown no insight or remorse. He was self-centred and self-serving.[68]In the light of C’s victim personal statement, the judge found that the consequences of the appellant’s sexual offending would be lifelong for her. C suffers from severe anxiety, depression and PTSD. Her trust in people and self-confidence had been damaged. There had been substantial consequences for C and her way of living. The harm went beyond that inherent in an offence of rape.[69]The judge treated count 3 as the lead offence with A culpability because of the recording of the anal rape. The appellant took advantage of C’s vulnerability under count 3 and also under count 1 when she was asleep, exhausted after caring for her babies who were young and poorly. On the assessment of harm, the judge said that there was no need for medical evidence. She was entitled to rely upon her own observations of C while giving evidence and saw the extreme psychological harm she had suffered. Count 3 fell into category A2 with a starting point of 10 years within a range of 9 to 13 years. Taking into account the fact that count 5 took place in C’s home and the recording which took place, the voyeurism fell into category 1 with a starting point of 26 weeks. On count 1, the aggravating features were ejaculation and the presence of the babies. Each of the rape offences took place in C’s home.[70]As for mitigation, the judge said that the appellant had no previous convictions, other than the stalking offence. He was entitled to a reduction to reflect the fact that he suffered from depression and anxiety, and that he had made two suicide attempts, as well as the effect of a custodial sentence upon him.[71]The judge uplifted the sentence on count 3 to reflect the concurrent sentences for the remaining offences, but in doing so had regard to the totality principle.[72]The appellant submits that the overall sentence was manifestly excessive. In summary it is said that:(1) The judge wrongly categorized count 3 as a category 2A offence. The judge was mainly influenced by the victim personal statement and was not entitled to find severe psychological harm. The correct category was 3A;(2) In any event she took too high a starting point;(3) The judge wrongly conflated aspects of other counts with the offending behaviour in count 3;(4) The judge failed to take sufficiently into account the fact that this was a first sentence of imprisonment on a man of effective good character;(5) Failed to take sufficiently into account the other mitigating features – the considerable delay not caused by the appellant; he had moved away and started a new life in the west of the country; he had been in work and out of trouble; he had suffered mental health problems and had attempted suicide twice;(6) The judge imposed an overall sentence that was too high in all the circumstances.[73]It is well-established by decisions of this court that a finding of severe psychological harm does not have to be based on expert evidence, but can be based on the observations by the trial judge of a complainant during the trial. Here, the judge did not place excessive reliance upon a victim personal statement prepared in the emotional turmoil of the trial as claimed by counsel. She relied mainly on her own observations of C when giving evidence. In any event, the statement was well-expressed and largely factual. Importantly it was prepared several years after the offending and spoke eloquently to the long term effects. The judge’s assessment that the rapes fell within category 2 harm and that count 3 fell within category 2A cannot be faulted. A starting point of 10 years for count 3 alone before allowing for other factors cannot be criticised as manifestly excessive even if the appellant is correct about an element of conflation.[74]The judge was plainly right about the aggravating features of count 1. The concurrent sentences for the offending on counts 1 and 4 required a significant uplift to the sentence on count 3 before considering mitigation. The offences were committed in C’s home where she was entitled to be safe. There was also the lack of remorse and insight.[75]Ultimately, the question for us is whether the judge made an insufficient reduction for the mitigating factors in this case, such that the overall sentence of 12 years’ imprisonment was not simply excessive but manifestly excessive. We have considered the matter carefully and have concluded that, even if the sentence in this case could be described as severe, it did not reach the level of being manifestly excessive.

Conclusion

[76]For these reasons we refuse the renewed application for leave to appeal against conviction under ground 5, we dismiss the appeal against conviction and we dismiss the appeal against sentence.