R v Wayne Davis [2026] EWCA Crim 671

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[2026] EWCA Crim 671

Before

LORD JUSTICE DOVE

MRS JUSTICE McGOWAN DBE

HER HONOUR JUDGE MONTGOMERY KC

(Sitting as a Judge of the CACD)

Between

REXCrown

Between

WAYNE DAVIS

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MISS S ELLIOTT KC appeared for Applicant

_________

J U D G M E N T

Date 2026-05-07

LORD JUSTICE DOVE:

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where 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 section 3 of the Act.

[2]On 14 December 2023 the applicant was convicted by a majority (10 to 1) of two counts, count 1 being a charge of indecent assault and count 2 being a charge of assault by penetration at the Crown Court in Manchester. The applicant was acquitted of count 3 (to which count 4 was an alternative) and the jury were unable to reach a verdict in respect of count 5. Subsequently, the applicant was retried and acquitted on count 5.

[3]On 13 January 2025 he was sentenced to five years' imprisonment on count 1 and eight years' imprisonment on count 2 with both of these sentences to run concurrently, giving rise to a final sentence of eight years' imprisonment. Appropriate notification requirements were ordered. The applicant appealed in time in respect of sentence but his application in respect of conviction was made 383 days out of time. He renews his application for leave to appeal against both conviction and sentence following refusal by the single judge.

[4]Counts 1 and 2 appeared on the indictment in chronological order but in fact the complaint in relation to count 2 was made first in time and the publicity surrounding the applicant's arrest in that connection precipitated the complaint in relation to count 1.

[5]The facts in respect of count 1 are that C1 went to see the applicant shortly after her marriage in December 1994 in respect of a lump which she believed to be a cyst “down below”. At the applicant's surgery she was seen by the applicant without a nurse or chaperone present and an examination proceeded in which she was told to remove her lower clothing and lie with her knees bent up and feet together with her knees open whilst the applicant examined her vagina. The applicant felt the lump and said it was probably just a cyst. C1 stated that before he gave her this diagnosis he offered to undertake another examination to check whether she was a "bethulah" i.e. a virgin. She asked the applicant whether the examination was necessary and he indicated that it would be a good idea. He had gloves on and used jelly and slowly inserted his finger into her vagina, stopping as he went, until he advised her that he had managed to get his whole finger inside. C1 felt uncomfortable and whilst the applicant told her he was going to take his finger out, it was present inside of her for quite some time.

[6]C1's mother gave evidence that her daughter had told her at the time that she had been to the doctor to have a lump examined and asked her mother whether it was normal to be touched "down there" and told her that she had been frightened.

[7]After the applicant's arrest in 2020, C1 told her daughter, XY, when she saw a newspaper article about the applicant's arrest following the complaint in relation to count 2. Her daughter told her that she should go to the police.

[8]Dr AB was asked by the police to review C1's medical records and she found an entry from February 1995 consistent with C1 attending the applicant's surgery complaining of a vaginal lump. Dr AB's opinion was that examination of a vaginal cyst would involve exposure of the genital area for the purposes of an external examination and that an internal examination would not be required for this purpose. No mention was made in the medical notes of any internal examination having occurred.

[9]In relation to count 2, C2 gave evidence that after her marriage in June 2006 she found sexual intercourse with her husband very painful. In August 2006 she attended the applicant's surgery with her mother and saw the applicant alone in his room without a chaperone. The applicant enquired whether she was pregnant and C2 recalled that she told him she was still experiencing pain during intercourse.

[10]The applicant said that he was going to use his two fingers to "stretch" her, stating that his two fingers would be more like her husband's penis and one finger would not be sufficient. The applicant did not undertake any visual examination, nor were any medical implements used. Having removed her lower clothing, the applicant proceeded to put two fingers into her vagina and, in C2's words, move them "like a whisk" which really hurt her.

[11]C2 did not tell anyone what had happened until 2019 when she told her beauty therapist, CD, what had happened. CD put C2 in touch with a support agency who in turn encouraged her to inform the police. When the police obtained C2's medical records an entry dated 24 November 2006 was discovered which noted: "Thrush, possibly and vaginal discomfort. Married 6/12. O/E still quite tight. Stretched and advised".

[12]The prosecution relied upon expert evidence from Dr Papaiaonnou, a Consultant Obstetrician and Gynaecologist who indicated that the practice of "stretching" was in his opinion "a bizarre concept with no grounding in gynaecological practice". Vaginal tightness is a condition known as vaginismus and "stretching" the vagina with fingers was not, he said, accepted medical practice. There were other treatments approved by the NHS for dealing with such a condition.

[13]The prosecution's case as recorded in the trial draft opening was that in relation to count 1 there was no medical purpose to the examination and it was accompanied by language and movements suggestive of a sexual motive.

[14]With respect to count 2, again the Crown's case was that the procedure the applicant undertook was without any medical basis and accompanied by sexualised comments and, as with count 1, was performed for the purpose of sexual gratification. It was associated with a different type of sexual conduct which was alleged in count 3 and of which the applicant was ultimately acquitted.

[15]The defendant was interviewed but given the passage of time he was unable to remember specific details and accepted that his note-taking, upon which he was reliant, was not always as thorough as it should have been. In essence the defence case statement indicated that in relation to count 1 the defendant had no specific recollection of the examination on 20 February 1995 but that it was likely he would have carried out an examination with his fingers wearing a latex glove to assess the complaint of a cyst. It was possible he also carried out an examination of C1's hymen to assess if she was a virgin at her request and only with her consent, again wearing a latex glove. In respect of count 2, the applicant indicated that the examinations of C2 was reflected in the notes of 24 November 2006.

[16]The defendant did not give evidence at trial but relied upon the evidence of Dr Joseph Spitzer, an expert medical witness in support of the appropriateness of the examination which his notes indicated he had undertaken of C2 in respect of count 2.

[17]The applicant had no previous convictions and a number of character witnesses were called to testify in relation to his personal qualities and his abilities as a doctor. The jury were advised by the judge that this evidence indicated the applicant had been a good doctor for many years in relation to many patients.

[18]We propose to deal with the grounds raised in relation to conviction initially. As the single judge noted, there is some dislocation in relation to the numbering of the grounds raised by the applicant. We propose to follow the numbering which was ascribed by the applicant in this application.

[19]Ground 1 is that the judge provided inadequate and confusing directions and routes to verdict in relation to the question of what was "sexual" and what was "indecent", in particular when they addressed the question of the test to be applied by the jury in the event that they found that the examinations were medically inappropriate. The specific concern of the applicant is that in relation to counts 1 and 2 the facts concerned internal medical examinations which the applicant contended before the jury were not necessarily inappropriate but, even if medically inappropriate, may not have been sexually motivated. The danger identified by the applicant is that the jury may have concluded that the internal examinations were inappropriate and were also sexual in that they involved a sexual area of the body, and that this was sufficient for the elements of the offence to be made out.

[20]Starting with the legal directions in relation to "sexual", the details of the directions to the jury were as follows. They were provided in writing to the jury and were in particular set out in paragraphs 27 to 30 of the judge's directions as follows:

"27. Sexual - touching or penetration is ‘sexual’ if a reasonable person would consider that (a) because of its nature it may be sexual and (b) because of its circumstances or the purpose of any person in relation to it (or both) it is sexual. 28. You must therefore adopt a 2 stage approach. To assist you, if a doctor undertakes an appropriate intimate examination then because of its nature the touching may be sexual. However, when you move to the second stage then because of the circumstances or the purpose of the doctor in relation to the touching (or both) it would lead to the conclusion that the touching was not sexual. 29. In this case the prosecution say that the defendant has carried out (cts 2,3 +4) and directed (ct 5) inappropriate intimate examinations. The prosecution submit that given the nature of those examinations you may consider them to be sexual and because of their circumstances or the purpose of the defendant (his sexual gratification) you should conclude that the touching was sexual. The defence dispute this and say that any examinations carried out in respect of counts 1 and 2 were appropriate. The defence do not accept that he would have acted as the prosecution allege in counts 3,4+5. These of course are matters for you to consider. 30. So unless you are sure that that any examination/direction that you find was carried out by the defendant was inappropriate, then there could not have been a sexual assault."

[21]The route to verdict in relation to count 2 provided the following sequence of questions:

"Q1. Are we sure that D intentionally penetrated PL’s vagina with his finger? If your answer is 'no', your verdict is ‘Not Guilty’ If your answer is 'yes', go to question 2. Q2. Are we sure that that penetration was sexual? If your answer is 'no', your verdict is ‘Not Guilty’ If your answer is 'yes', go to question 3."

[22]Further questions went on to address other elements of the offending associated with the consent of C1 but which are not necessarily directly relevant for considerations under this ground.

[23]The jury were sent into retirement on 11 December 2023 and later that day the jury sent a note stating:

"In trying to decide if the circumstances in count 2 were sexual, do we need to be sure if it was intentional on the part of the defendant? Para 27 of the legal directions provide some clarity but we require additional detailed guidance please if possible."

[24]The judge had worked overnight in consultation with counsel on a supplement to his legal directions but before it could be delivered to the jury, the following morning the jury sent a further note, stating:

"All counts, must the jury be convinced defendant gained some sort of sexual gratification from said examinations to return a guilty verdict? Please ignore if covered by previous note."

[25]The judge agreed after discussion that he would read the supplementary direction he had prepared overnight unaltered and provide the jury with a copy in writing, adding orally that sexual gratification was not an element of the offence. The written legal directions provided by the judge at this stage were as follows:

"I remind you that the prosecution case is that this was an inappropriate examination suggested and performed by the defendant in order to enable him to sexually assault PL for his own sexual gratification. I remind you that the defence case is that this was an appropriate medical examination performed by the defendant. The 2 stage approach to count 2. Stage 1 - Would a reasonable person consider that because of its nature the penetration may be sexual? If you are sure a reasonable person would consider that the penetration may be sexual then move on to stage 2. If you are not sure then your verdict will be NG. Stage 2 - Would a reasonable person consider that because of the circumstances and / or the purpose of the defendant in relation to the penetration, the penetration was sexual. The prosecution do not have to make you sure that the defendant intended the touching to be sexual. However, whatever you find the defendant’s purpose to have been, it may be relevant and assist you when you considering stage 2 as you will ask yourself would a reasonable person consider that the penetration was sexual because of the defendant’s purpose? If you are sure that the penetration was sexual then go to Q3 on your route to verdict. If you are not sure that the penetration was sexual then your verdict will be not guilty."

[26]In addition to these additional written legal directions, the judge added orally as follows: "Sexual gratification is not an element of the offence that you must be sure of, you have seen the elements of the offence that I have set out, but it may well once again be relevant to consider as part of the circumstances and when considering the defendant’s purpose which you are obviously considering as well as part of the element of the penetration being sexual. So, to that extent, it is not a part of the element of the offence but it may be relevant to your consideration.”

[27]In the light of these directions, it is submitted on behalf of the applicant that a combination of these directions, stating that the jury need not be sure of sexual gratification and in the absence of any legal direction on the possibility that the medical examination may have been inappropriate but not sexually motivated, there was a real danger the jury would convict on the basis that they were sure that the medical examination was inappropriate, or perhaps more correctly incompetent, and conclude that it was sexual because it was an intimate examination with no legitimate medical purpose. The jury were not directed as to the implications of concluding that the medical examination was incompetent but not undertaken for a sexual purpose.

[28]Similar submissions are made in relation to count 1, the allegation of indecent assault. The judge's directions in relation to this issue and in particular the meaning of indecent were set out at paragraph 18 of his legal directions in following terms:

"18. Indecent – it is for you to decide whether any touching that you find took place was indecent, by the standards of right-minded people, having regard to all the circumstances. If the circumstances are such that it might be regarded as indecent but is not necessarily so, then the assault is indecent if reasonable and right-minded persons would consider it to be indecent. In order to determine whether or not right-minded persons might think that the assault was indecent you may wish to consider the relationship of the defendant to the complainant and how the defendant came to embark on this conduct and why he was so behaving. Consideration of those issues will assist you in answering the question are we sure that the defendant not only intended to commit an assault but an assault which was indecent."

[29]The route to verdict having addressed as the first question whether or not the applicant unlawfully touched C1, posed as question 2 on the premise that the jury were so satisfied the following:

"Are we sure that that assault, and the circumstances accompanying it, is capable of being considered by right-minded persons as indecent?"

[30]Again on behalf of the applicant it is contended that the jury were given no practical help as to the appropriate test to be applied in the context of a medical examination and the directions which were given gave rise to the same risk as under count 2, that the jury could conclude that an indecent assault occurred without being sure that the applicant had any sexual motive. They were not provided with instructions to help them in respect of the possibility that they found that the examination was unlawful or incompetent but not sexually motivated. Reliance is placed upon the observations of this court in R v Kumar

[2006] EWCA Crim. 1946

[31]Our conclusions in relation to this ground are as follows. It is important to observe that the question for the purposes of the Sexual Offences Act 2003 as to whether or not conduct is sexual is governed by section 78 of that Act which provides as follows:

"78 'Sexual' For the purposes of this Part (except sections 15A and 71), penetration, touching or any other activity is sexual if a reasonable person would consider that— (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual."

[32]In the context of this case the appropriate statutory provision was section 78(b).

[33]The correct interpretation and approach to that section was considered by this court in the case of the Attorney General's Reference (section 36 of the Criminal Justice Act 1972) (No 1 of 2020),

[2020] EWCA Crim 1665

. In the conclusions of the court at [45] and [46] the following is observed:

"45. Notwithstanding Ms Heeley’s cautionary submission that this is an offence that carries serious consequences on a conviction, we are confident that the answer to the question posed by the Attorney General is that it is not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the offender not only intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but also that the offender additionally intended his touching of that person to be sexual. 46. Instead, under section 78 (b) the accused’s purpose in relation to the activity may be relevant if a reasonable person would consider that, given the nature of the activity, it may be sexual and, because of the accused’s purpose, it was sexual."

[34]Having considered those statutory provisions and that leading authority, we are satisfied that leave to appeal ought to be granted in relation to ground 1.

[35]As we have granted leave to appeal, it is probably inappropriate to provide detailed reasons for our conclusions but it does appear to us at least arguable that in this case whilst there may have been all of the relevant statutory ingredients provided to the jury in the form of the instructions that were provided piecemeal by the judge and as described above, it was, given its somewhat unusual circumstances, a case in which it was arguably an error for the judge not to have provided a particularly fact-specific or bespoke direction as to what the jury needed to be satisfied of in order to convict the applicant. The observations that this was a case which was opened on the basis that what made the incidents sexual was the sexual gratification derived from them by the applicant, ought to have featured specifically in the directions which the judge gave, especially in respect of the second tranche of legal directions where the jury were obviously seeking further help on what precisely in the circumstances of this case they were being asked to adjudicate upon as to the definition of 'sexual' which was not an ordinary English word but which, as the judge was obviously alive to, was the creature of a detailed statutory scheme.

[36]We are therefore satisfied, as we have observed, that this is a ground which should be considered by the full court.

[37]Ground 2 is a contention relating to the admission of the findings of Medical Practitioners Tribunal Service findings as to the applicant's practice and whether or not these were properly admissible under section 101(1)(f) of the Criminal Justice Act 2003 as material necessary to correct a false impression, and further, the basis for the admission of evidence about policies in relation to chaperones so as to provide the jury with adequate directions in respect of both of these issues.

[38]It appears that an application was served on 18 October 2023 (less than a month prior to the trial) in relation to the bad character evidence on the basis of the need to correct the false impression of the applicant's practice given by him in his interview to the police and to draw the jury's attention to findings of misconduct in 2018. The evidence in relation to chaperones was given by the daughter of C1 who was qualified as a midwife. She offered her views as to the appropriateness of the examination in 1995 and indicated that she considered a chaperone should have been available.

[39]Dr Papaiaonnou's evidence also included reference to the GMC guidance at the time which was that chaperones should be offered. Further evidence was offered by a Dr RP who, in a statement read by way of agreement to the jury, indicated that the applicant had been "... in trouble with the GMC over his prescribing of Ritalin to patients with ADHD around 2017, possibly earlier." This material was not part of the bad character application or the subject of discussion and included exhibited emails to the applicant in which he had been told that he should use chaperones.

[40]In relation to these contentions we are satisfied that the prosecution's appraisal of the position is entirely accurate. So far as the MPTS evidence is concerned, on the basis not merely of the observations made by the applicant about his practice in interview but also the witnesses who the applicant wished to call, it was in effect an inevitability that this material would be admitted in order to provide some balance and correction to the impression that might otherwise have been drawn that the applicant was a practitioner without blemish. It appears that it was the subject of discussion and agreement prior to it being placed before the jury in an appropriately edited format. The judge gave a perfectly adequate bad character direction in relation to this material which it is unnecessary for us to rehearse. The judge directed the jury to the issue which the bad character evidence related to, namely whether the applicant's account to the police had been misleading. Furthermore, the judge properly directed the jury that it went to the credibility of the account which he gave to the police and the judge set out the competing positions of the prosecution and defence. These directions were proceeded by a full good character direction in respect of the applicant. Taken overall we are unable to detect any arguable error in respect of the MPTS evidence.

[41]Turning to the evidence in relation to chaperones, the prosecution correctly observes that this evidence was not bad character evidence at all but in truth was evidence directly related to the circumstances of the offence, given that the account in support of both count 1 and count 2 were that C1 and C2 attended the applicant's surgery alone. There was no need in our judgment for any application in relation to this evidence and it was directly relevant to the issue which the jury needed to consider in respect of those complaints and those complaints alone.

[42]Ground 3 is the contention that the judge failed to consider whether or not C1's daughter should be allowed to give evidence from her own experience as a midwife as to what took place when her mother was examined in so far as her evidence contained material which was opinion evidence and so far as it was opinion evidence it ought to have been properly served in accordance with Part 19 of the Criminal Procedure Rules. Her evidence in that respect, it is submitted, ought not to have been admitted and when it was brought into the case the judge ought to have provided the jury with proper instructions in relation to how that evidence was to be treated.

[43]Having considered those submissions, we are satisfied that the prosecution's response is comprehensive and there is no arguable error of law in the judge's approach. The evidence about which the applicant complains is in truth evidence of the context in which the complaint was received by C1's daughter and her reasons for advising her mother to report matters to the authorities. Her experience as a midwife was part and parcel of that context. She was not providing that evidence as an expert, nor was her evidence to be treated at the time or during the rest of the trial as any sort of authoritative expert evidence which required special treatment by way of procedure or instruction. In any event, we note that the jury had a full and proper direction about the approach they should take to expert evidence, even if unlike all other participants in the trial they thought it was expert evidence.

[44]Ground 4 of the application is the refusal of the judge to permit the admission of evidence from a Dr Harris who had provided material by way of expert evidence to the defence. His report was commissioned in response to evidence provided by a Dr PB who witnessed a complaint in the case and was asked by the applicant's counsel whether in cases of vaginismus a GP may feel it appropriate to demonstrate various exercises recommended to treat the condition, including the use of vaginal dilators or digital insertions. Dr PB indicated in response to the questions of defence counsel that some doctors might do that. That prompted a question in re-examination as to whether or not Dr PB would do so, and Dr PB indicated not only that she would not necessarily do so, but that she was not familiar with digital stretching of the vagina and had never come across it.

[45]The defence sought to call Dr Harris, a general practitioner, to give expert evidence in relation to performing "stretching". The prosecution objected to the admission of that evidence on the basis that Dr Harris had retired 10 years prior to the indictment period in relation to count 2 and that the evidence she gave referred to stretching of the hymen not the vaginal canal.

[46]The judge acceded to the prosecution's objection to the admission of this evidence and indicated that it was too late and insufficient information had been provided as to why it had not been served at an appropriate time. Furthermore, the judge concluded that Dr Harris was not an appropriate expert given that she had not been in practice for 12 years or undertaken continuing education. Her statement therefore did not address procedures in 2006. Furthermore, the judge's view was that the "stretching" that Dr Harris was referring to was not relevant to the issues on count 2 in any event.

[47]The applicant submits that the judge was wrong to rule Dr HA's evidence out on the basis that it had arisen spontaneously as a consequence of the questions in re-examination and the failures to comply with Part 19 of the Criminal Procedure Rules could at least in some parts have been rectified. Indeed, it is said that Dr Papaiaonnou's expert reports had taken the form of letters to the Officer in the Case and did not comply with Part 19. The points about the retirement of Dr Harris went to the weight to be attached to her evidence and was not a reason to exclude it.

[48]We do not consider that there is any merit in any of the submissions made on the applicant's behalf. The material was, as the judge observed, late and inexplicably so. The question of "stretching" had obviously been at large for a very considerable period of time in the course of these proceedings and the conclusions which the judge reached in relation to the relevance of Dr Harris's evidence were in our view unassailable. The fact that she had not been in practice since 1994 did not simply go to the weight which could be attached to her evidence, but also as to whether or not the judge should exercise his discretion in the circumstances to permit the evidence to be adduced at all. There was therefore nothing arguably wrong with the decision which the judge reached. None of the points of substance as to the relevance of Dr Harris's report, which are reiterated by the prosecution in response to this application, have in reality been substantively and effectively responded to.

[49]Ground 5 is the contention that the judge erroneously failed to properly deal with the evidence of distress in his direction to the jury. During the course of her evidence, the beauty therapist (CD) to whom C2 complained gave evidence of C2's demeanour at the time when the complaint was made.

[50]We are again satisfied there is no substance in this complaint and the ground is not arguable. The judge gave perfectly adequate directions in respect of the issues in this kind and in particular the question of distress at [49] to [51] of his legal directions. That appropriately equipped the jury to evaluate this evidence and form their own factual conclusions in respect of the reliability of witnesses.

[51]The applicant's erroneously numbered ground 7 is the contention that the judge failed to properly deal with the complaint evidence in the case, including dealing with delays and inconsistencies. Again, to deal with the point in summary, we are not satisfied that there is any substance whatsoever in this contention. The judge provided the jury with very specific directions in [54] to [57] in respect of how to address complaint evidence and then importantly at [58] to [64] gave detailed directions pertaining to inconsistencies in the evidence.

[52]The complaint raised by the applicant is that the judge failed to deal with one specific and significant inconsistency which was relied upon by the defence in relation to the account given by C2. It is contended that the jury required tailored assistance in respect of that piece of evidence.

[53]That is a submission which we are unable to accept is even arguable. First, the jury had detailed directions on this issue, as well as the submissions of counsel, and the reminder in the judge's summing-up of the nature of the evidence. Nothing further was required to assist the jury in respect of this inconsistency and it is not arguable that there was any error in the directions that the jury were provided with.

[54]Ground 8 is the submission that the judge erred in law in refusing to allow the evidence of other complaints made by C1 to be put before the jury either on the basis of section 100 of the Criminal Justice Act 2003 or alternatively on the basis of section 41 of the Youth Justice and Criminal Evidence Act 1999.

[55]There was an extensive dossier of evidence relating to complaints which C1 made to the police, some of sexual offences and others not. C1 had a complicated mental health history which was associated with these complaints. The application under section 100 of the 2003 Act was made on the basis that this was important explanatory evidence with substantial probative value in relation to the credibility of C1's evidence. It is submitted that those complaints which were sexual were in fact false and therefore not precluded by section 41 of the 1999 Act.

[56]It is clear that there was a substantial procedural history to these applications and the judge delivered a lengthy and very detailed ruling in respect of these matters. In particular, the judge examined the evidence in relation to the past complaints relied upon and placed them in the context of C1's mental health problems since unreliability due to those mental health problems would not be a sufficient basis to conclude that they were misconduct.

[57]The judge ultimately concluded after detailed examination of the issues that there was simply insufficient evidence to conclude that the complaints which she made were false. Furthermore, the judge's detailed analysis addressed the question of whether or not two of the allegations, even if potentially false, had substantive probative value in relation to the case and concluded that they did not.

[58]We accept the prosecution's submission that the judge's conclusion in relation to the evidence and its admissibility were robust, detailed and carefully arrived at and therefore cannot sensibly be questioned or contended to be an error of law in the context of an appeal to this court.

[59]It is further suggested by the applicant that the evidence could have been admitted pursuant to section 41(5) of the 1999 Act. It is clear however that this material goes well beyond "rebutting or explaining" C2's evidence adduced by the prosecution. That route was not in our judgment available. The only other possible route could have been section 41(3) of the 1999 Act but that section, for the reasons given by the prosecution, do not apply to this situation either.

[60]In our judgment the conclusion reached by counsel instructed on behalf of the applicant that the application could not be brought within the scope of section 41 of the 1999 Act was an accurate appraisal of the situation.

[61]Perhaps more fundamental is the point made by the single judge that it was simply not put to the trial judge that this material should be admitted pursuant to the 1999 Act, and in those circumstances it is now quite inappropriate and not open to the applicant to resurrect this contention as a ground of appeal. In summary, in our judgment, this ground is not arguable.

[62]Ground 8 is the contention that the failings of counsel originally instructed in the first trial of this applicant gave rise to identifiable errors in the trial process. Many of these concerns are parasitic upon other grounds which have been raised and which we have dismissed. Others relate to tactical choices made by counsel in consultation with his client about the appropriate approach which should be taken to the evidence.

[63]It is apparent from the material provided by the initially instructed legal team that there were extensive discussions of all of these issues and the decisions which were taken by the legal team were with the full support and understanding of the applicant. In particular, as noted above, the applicant did not give evidence. Whilst this is criticised in this ground of the application, we are unable to conclude that this is an even arguable error of law. The decision on whether or not the defendant will give evidence is quintessentially a tactical decision made by the defendant with the advice of those instructed on the basis of detailed discussions about the pros and cons of the defendant doing so. In this instance it is clear that not only were there extensive discussions about this decision, but that the applicant was fully and properly advised and made an informed choice not to give evidence in his own defence. In short, we are wholly unpersuaded that there is any substance in this ground of appeal against conviction.

[64]Finally, we turn to ground 9. Ground 9 is an application for permission to adduce fresh evidence from a Consultant Gynaecologist in the form of a report dated 9 June 2025. In the course of that new report it is indicated by the author that in relation to count 1 in his opinion a visual examination of the hymen is not necessarily adequate and it may be necessary to ascertain whether full penetration has taken place by the insertion of a gloved finger gently into the vagina to see whether the hymen is intact, or whether it has been stretched or torn. The author indicates that in appropriate circumstances an internal vaginal examination may, subject to counselling and consent, be a proper examination. In respect of C2, the report indicates that in cases of vaginismus the condition can be satisfactorily treated by a combination of psychosexual therapy and/or vaginal dilator therapy which involves repeatedly inserting plastic dilators into the vagina to dilate and "stretch up" the vaginal muscles. The author indicates it is highly unlikely a single stretch would give any benefit and goes on to say it is not uncommon for a GP to use colloquialisms in their notes in relation to clinical findings and procedures.

[65]As noted in the pleaded form of this ground, it is necessary for the requirements of section 23(2) of the Criminal Appeal Act 1968 to be satisfied in relation to this material. We agree with the single judge that whilst the evidence is from a highly experienced and reputable gynaecologist, there are significant question marks in relation to whether this material may afford any ground for allowing the appeal on the basis that the applicant took the opportunity to call his own expert evidence in the context of the trial on these issues.

[66]The most significant difficulty facing the applicant is that the issues which this evidence addresses have been central to these proceedings for a significant period of time and certainly prior to the hearing of the trial. It follows that this is material which was potentially available to the applicant and there is, in truth, no sensible explanation for why it is being adduced now. Although it is contended that the evidence which concerns the applicant emerged in cross-examination, the issue which this evidence addresses have been issues in the case for a very long time and certainly prior to the trial occurring.

[67]We are not satisfied therefore that it is arguable the provisions of section 23 of the 1968 Act permit the introduction of this evidence at this stage of the proceedings and in the context of an appeal against conviction.

[68]In summary therefore, in relation to the grounds which have been raised in respect of the applicant's conviction, we are satisfied that ground 1 is properly arguable.

[69]As to the extension of time, we propose to leave the question of whether or not such an extension of time should be afforded to be considered by the full court on the basis that they will have a full evaluation of the merits of the applicant's case.

[70]We turn then to the question of sentence. The judge had the advantage of victim personal statements from C1 in which she described the profound impact which the offence had had upon her giving rise to a trauma with which she had to live every day. She continued to have difficulties in her personal life, including longstanding problems with intimacy and difficulty trusting medical professionals.

[71]There was a victim personal statement of C2 taken in August 2020 which described how she was experiencing permanent emotional scars and grief as a result of what had happened to her and how the event had impacted upon her relationship with her husband.

[72]The judge noted the personal mitigation available to the applicant, namely that he had no previous convictions and a number of character witnesses who had spoken of his caring nature as a doctor.

[73]The judge observed that he had "been a good doctor for many years to many patients". He was likely to lose his license to practice as a consequence of the proceedings. Spending time in custody, particularly bearing in mind the requirements of the applicant's faith, would create particular difficulties for him.

[74]The judge proceeded to consider the categorisation of the offences. It was agreed that the equivalent offence in relation to C1 was assault by penetration, contrary to section 2 of the 2003 Act. It was accepted that the culpability fell into category A, bearing in mind the abuse of trust involved in the offending. Whilst the prosecution submitted that the offence came within category 2 harm, the judge accepted that the submissions made on behalf of the applicant that he could not be sure that there had been severe psychological harm as a result of the applicant's conduct alone.

[75]There was a need for an uplift in relation to the psychological harm inherent in the offence itself, as well as an uplift on the basis that C1 was vulnerable and naive at the time.

[76]The judge concluded that it was a category 3A offence with a starting point of four years' imprisonment and a range of two to six years' imprisonment. The judge uplifted the starting point to five-and-a-half years to reflect the matters he had noted.

[77]In relation to C2, the same debate emerged as to whether or not it was a category 2A or 3A offence. The judge reached similar conclusions that whilst C2 was a very naive and vulnerable individual, a factor known to the applicant at the time, he was not satisfied that the test for severe psychological harm had been passed. He thus arrived at the same conclusion in relation to C2, namely that the offence came within category 3A and that a starting point of five-and-a-half years to reflect uplift in her case was appropriate.

[78]The judge then examined the question of whether or not he could be satisfied, so that he was sure, that the offences had been committed in order to obtain sexual gratification. Having considered the jury's verdicts and the evidence in the case, he concluded that he could not be sure to the criminal standard that there was such a finding of sexual gratification. He indicated that this justified a reduction of the sentence by one year to four-and-a-half years for each offence. The judge then reduced the overall sentence by a further year to reflect the applicant's personal mitigation. Ultimately the judge imposed a sentence of eight years' imprisonment.

[79]The judge's sentencing is criticised for a number of reasons in the appeal against sentence. Ground 1 is that the judge failed to adequately reflect the lack of sexual gratification as a motive for the offences when calculating the custodial term and that a deduction in excess of one year ought to have been made.

[80]This is a submission which we are not able to accept as properly arguable. The deduction which the judge made was a matter for his judgment and the conclusion that an adjustment of six months on each count was one which was entirely open to him bearing in mind the application of the sentencing guidelines and the nature and circumstances of the offending.

[81]Similar observations pertain in relation to ground 2 which is the submission that greater weight ought to have been given to the fact that the applicant was a highly respected doctor and secondly had not concealed his offending.

[82]We do not see any merit at all in either of these submissions. It is clear that the judge had firmly in mind both the fact that the applicant had been, as he noted, a good doctor when he came to make his adjustment for mitigation. In addition, recording the examination was no more or less than the applicant's professional obligation. Neither of these points are of any merit nor do they carry any weight.

[83]Ground 3 is that the judge failed to make an adequate reduction for the applicant's personal mitigation. Again, in our view the judge was alive to all of the points raised in relation to this applicant's personal mitigation and in particular the impact which imprisonment would have upon him bearing in mind his religious and cultural heritage and his faith. The adjustment which was made was one which was appropriate in all of the circumstances.

[84]Ground 4 is that the judge failed to make a sufficient downward adjustment to the custodial term to reflect totality. We disagree and have concluded that this point is equally unarguable. The judge had totality in mind and reduced the overall sentence to one of eight years to allow for that. The sentences had to be consecutive. The submission made that the imposition of this sentence took the sentence to the starting point for the next category for a single sentence is misconceived.

[85]For all of these reasons, we are not satisfied that it is properly arguable that the sentence of eight years' imprisonment in this case was one which was either manifestly excessive or wrong in principle. 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 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk