R v BGZ [2026] EWCA Crim 873

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[2026] EWCA Crim 873

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Between

R EXCrown

London

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT CANTERBURY

(HIS HONOUR JUDGE TAYLOR KC) [46ZY1020422]

Case No 2025/02214/A2 Wednesday 24 June 2026

B e f o r e:

LORD JUSTICE DOVE

MR JUSTICE MARTIN SPENCER

THE RECORDER OF WOLVERHAMPTON

(His Honour Judge Chambers)

(Sitting as a Judge of the Court of Appeal Criminal Division)

____________________

- v –

Between

B G Z

____________________

Computer Aided Transcription 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)

___________________

Mr I Mullarkey appeared for Applicant

Mr P Abrahams appeared for Crown

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J U D G M E N T

Date 2026-06-24

[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 the person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. This judgment has been anonymised accordingly.

[2]On 19 June 2025, following a trial in the Crown Court at Teesside before His Honour Judge Richard Bennett and a jury, the applicant was convicted of one offence of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003.

[3]He was tried on an indictment in which there were three counts of sexual assault of a child, but he was acquitted of counts 1 and 2 and convicted of count 3. Subsequently, on 25 July 2025 he was sentenced to seven months' imprisonment, suspended for two years, with a rehabilitation activity requirement of up to 30 days. Notification requirements were imposed.

[4]The applicant's application for leave to appeal against conviction has been referred to the full court by the single judge.

[5]At the time of the offence the applicant was 24 years old. The victim of the offence was his niece, who at the time was aged between 3 and 4 years.

[6]On 31 May 2022, the victim disclosed to her mother, in the presence of a family friend, that the applicant had sexually abused her. The circumstances of this disclosure, as it was opened to the jury, were that her mother and the family friend were watching television in their living room and they heard the victim say: "willy" and then "touch my willy" three times whilst she was dancing around the room. Her mother confronted her about what she had said and asked who had taught her to say it. She was reluctant to say. Initially, she said that she did not know. Her mother then asked her whether anyone had asked her to keep a secret, and when her mother listed members of the family, the victim said that it was her uncle. Her mother asked what the secrets were, to which the victim said that the applicant put his tongue in her mouth, made her kiss his feet and she also said that he would undress her.

[7]Her mother then pointed to the victim's pubic bone, touched her there over her clothing and asked her if he had touched her on that part of her body, to which the victim answered "Yes". Their family friend then called the police.

[8]The police came and spoke to the victim, and the record of what she said was reproduced in the Agreed Facts before the jury, in the following terms:

"Why have we come? – [the applicant] Sad/happy/don’t know? – Sad Why? – Cause he touched there (points to in between legs) When? At nana's house How any times? Don't know Where in Nana's house? Nana's house Where touch? – (Indication) What comes out of there? Wee When touched what with? Hammer (after clarification doesn't know) Touched anywhere else? Licked my pants Where were they on/off? On me. Wearing pants + licked Touched – what do you call it? Minnie Anywhere else? No Sad anymore? Because he keeps touching here/there Asked to touch him? Ear. Nowhere else When touch-tickle/sore/not know? Not know Say? -- Ahh you crying Where? Living room"

[9]The day after the disclosure had taken place, the victim repeated her disclosure about her uncle touching her vagina to her father. On 9 June 2022, further disclosures were made to her childminder.

[10]On 16 July 2022, the victim gave an Achieving Best Evidence interview to the police. Initially, she did not engage and pretended to be a cat. When she became engaged in the interview process she was asked to tell the police everything that the applicant had done. She said that he had "licked my pants", but she did not know how he had done that. She was asked whether the applicant did anything else and she said that he did the "kissing challenge". She was asked to demonstrate this and she stuck out her tongue. When asked where his tongue went, she pointed to her mouth. The officer asked whether it went inside. The victim said that she did not know. She agreed that the applicant's tongue went on her mouth in the kissing challenge and said that she did not like it. She said that the applicant had licked her pants three time. Using a doll, she explained that the applicant had licked her "minnie" (her vagina). The victim indicated that the applicant had taken off her knickers and that the applicant had put his belly on her vagina. The victim was then asked whether the applicant had any toys which buzzed, and she agreed that he had one which was shaped in a "rectangle and square", and was black and purple.

[11]Prior to the trial, the victim was cross-examined and the cross-examination was recorded on 29 July 2024. The victim was properly and appropriately questioned on behalf of the applicant by Mr Mullarkey, who represents the applicant this morning, and she maintained that the applicant had played the "kissing challenge" with her and that the applicant had licked her "minnie" (or vagina).

[12]The prosecution distilled the victim's evidence into three counts on an indictment for the purposes of the trial. Count 1 related to the "kissing challenge" which had been described in the ABE interview. Count 2 was the allegation that the applicant had licked the victim's "minnie" (vagina). Finally, count 3 – the count of which the applicant was convicted – was the allegation that the applicant had licked the victim's pants.

[13]The judge carefully directed the jury in relation to the need to reach verdicts in respect of each of these counts and the evidence in relation to those counts separately. His directions are set out verbatim below.

[14]This was reiterated when he directed the jury in relation to the specific elements and evidence pertaining to each of the three counts.

[15]No criticism is made of the judge in relation to the quality of his directions – and rightly so. The basis of the applicant's application is that by their verdicts the jury appear to have determined that they could be sure that the applicant licked the underwear being worn by the victim, but that they could not be sure he played a "kissing challenge" with her, or that he licked her vagina. It is submitted that this outcome is inexplicable and the verdicts illogical, given that the only evidence of the applicant's conduct comes from the victim, and that her account consistently features all three of the behaviours covered by the three counts on the indictment. In particular, the licking of the victim's underwear is submitted to be inextricably linked with the licking of the victim's vagina, such that it was inconsistent and illogical for the jury to have reached the verdicts which they did. In short, it is said that no reasonable jury could be sure of count 3, but not sure of count 2, given how closely they were intertwined in the evidence.

[16]This court considered the approach which should be taken to allegations that a jury has reached inconsistent verdicts in R v Fanning and Others

[2016] EWCA Crim 550

;

[2016] 1 WLR 4175

. The court rejected the approach which had been taken in some of the authorities to this issue and re-enforced the need to follow the analysis provided by Devlin J (as he then was) in the unreported Court of Appeal case of R v Stone, which had been endorsed by this court in R v Hunt

[1968] 2 QB 433

. In Stone, Devlin J observed as follows:

"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that."

[17]In Fanning, the court also grappled with issues of credibility and the appropriate approach to cases where credibility or reliability of a witness was relied upon in respect of inconsistent verdicts. At [27] the court observed:

"However in a series of decisions later in that decade, that suggestion was rejected. It became clearly established that absent a specific direction, it was generally permissible for a jury to be sure of the credibility or reliability of a complainant or witness in relation to one count in the indictment and not to be sure of the credibility or reliability of the complainant on another count. This has been said on numerous occasions, but it is important, in the light of the arguments before us, to emphasise that this is now well established."

[18]Against this background we have considered the submissions which have been made persuasively both in writing and orally by Mr Mullarkey on behalf of the applicant. We are, however, satisfied that the high hurdle which is presented in Fanning has not been surmounted in the present case.

[19]The starting point is that it is clear that it was uncontroversial that there was evidence to support each of the counts on the indictment. There was no application for dismissal of the case on the basis that there was no case to answer, or no evidence in relation to any one of the individual counts. There was, however, the common theme that the evidence in relation to each of the counts came from the same witness (the victim), who was very young at the time and whom the defence were entitled to point out had not been entirely consistent in the accounts that she had given.

[20]However, in our view, central to the consideration of the question as to whether or not there were inconsistent and essentially unreasonable verdicts is the analysis of the evidence provided by the judge's directions on the specific application of that evidence to the separate consideration of the counts on the indictment. In particular, we draw attention to the careful directions which he gave to the jury as follows:

"Separate verdicts. You are trying an indictment which has three separate counts or charges upon it. You must consider each count and the evidence relevant to each count separately and you must return separate verdicts upon each count subject to the routes to verdict below. It follows that your verdicts can be the same upon each count, whether guilty or not guilty, or there may be a mixture of verdicts according to your judgement. What you must not do is say to yourselves we have decided this count therefore other counts must have the same result. You will be asked to return separate verdicts. … As I directed you before, you must consider each count separately. In relation to each individual count that you are considering the prosecution must prove all of the following elements of the offence so that you sure before you can find [the applicant] guilty of sexual assault of a child under 13: (a) that the [applicant] intentionally rather than accidentally touched [the victim]; (b) that [the victim] was under 13 at the time; and (c) that the touch was sexual. Now, [the victim] was obviously younger than 13 at the time that we are concerned with, therefore you are concerned with whether you are sure that [the applicant] deliberately touched her in a sexual way. [The victim] was not old enough to consent to a sexual touch and therefore a sexual touch would be a sexual assault. Whether a touch is sexual is for you to judge. Some touches to intimate areas are obviously sexual but many touches are of a kind which might be sexual and the nature of it may only be judged by looking at all the circumstances including the purpose behind the touch. In relation to count 1, you will have to determine whether the nature of the kissing game was sexual, if you are sure that it happened. In relation to count 2 and count 3, given the nature of the allegation you may think the main issue will therefore be: am I sure that there was such an intentional touch as [the victim] described? Because if your answer is yes, you may well conclude that the licking of a vagina or the knickers of a child while they are wearing them was sexual."

[21]It is clear to us that applying these directions, it was open to the jury to reach the verdicts which they did and to accept and be sure of the evidence of the victim in relation to one of the incidents of sexual touching, but not sure of the other two. As the respondent observes, the counts did not stand or fall together.

[22]It is contended by Mr Mullarkey that the offences were inextricably part of the same incident, but it is notable that that inextricable link was specifically disavowed by the judge in his direction on separate verdicts, where he specifically alluded to the fact that the jury may reach a mixture of verdicts according to their judgment in relation to the individual incidents. This was not a case where the jury had been directed that they had to either convict or acquit on counts 2 and 3 both together.

[23]No doubt inconsistencies in the evidence of the victim had been critical to the way in which the defence approached their submissions. Those were all part of the overall backdrop of the case, which the jury will have had well in mind when reaching the verdicts that they did. That does not render their verdicts illogical.

[24]It was contended – and there was justification for the contention, which is accepted by the respondent – that the officer who conducted the ABE interview did ask leading questions in relation to count 2, the allegation that the applicant had touched the victim's vagina. That cross-examination and the progress that was made with the witness by Mr Mullarkey is recorded by the judge in his summary of the evidence to the jury. No doubt the jury will have had that in mind when they considered their verdicts; and they may (albeit it is not for us to second guess how they came to their verdicts) have contrasted that with the allegation in relation to count 3 of licking the victim's underwear, which had been an unprompted feature of the victim's evidence from around the time of her first disclosure. Thus, there were distinctions in the evidence which was before the court in relation to the counts which the jury could have taken into account in arriving, perfectly logically, at the verdicts which they did, in convicting of count 3, but acquitting of counts 1 and 2.

[25]For these reasons we are not satisfied that the test established in Fanning has been passed in this case. We do not consider, therefore, that the submissions which have been make by Mr Mullarkey, ably though they were advanced, give rise to a case in which it would be appropriate to conclude than an appeal was arguable.

[26]Accordingly, we refuse the application for leave to appeal against conviction. __________________________________ 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 ______________________________