C v R. (Rev 2)

Where alleged sexual offending in adulthood follows prolonged childhood sexual abuse, the earlier abuse and the defendant’s continuing domination and control may provide essential context for assessing apparent consent. If the jury is sure of that history and its continuing impact, it may conclude that conduct apparently indicating consent was not real consent and that the defendant knew this.

An extended sentence under Powers of Criminal Courts (Sentencing Act) 2000 section 85 cannot be imposed for offences committed before 30 September 1998.

The appellant was convicted at Bolton Crown Court of 18 sexual offences against his step-daughter. Counts 1–9 concerned childhood sexual abuse. Counts 10–18 concerned sexual activity after she reached 16, including attempted rape and rape.

The appellant denied sexual activity before the complainant was 16 and maintained that all later activity was consensual. He relied on photographs, a video and messages which appeared to show her willingness. The Crown relied on her evidence of prolonged childhood abuse, threats, manipulation and continuing control.

The appeal challenged the sufficiency of the evidence and the judge’s approach to the later counts. A sentencing correction also arose concerning the use of section 85 of the Powers of Criminal Courts (Sentencing Act) 2000.

1. Appeal against conviction dismissed. The trial judge was entitled to leave all counts to the jury. The evidence relating to the childhood and adult periods was mutually admissible. The judge correctly directed the jury that it could consider conviction on the later counts only if sure that the alleged history of childhood sexual abuse had been proved.

2. The Crown did not advance a case of incapacity to consent or of conditioned consent. Rather, the prolonged abuse, domination and control during childhood supplied the context for deciding whether the complainant’s apparently consensual conduct after she reached 16 was genuine.

3. Once sure that the earlier sexual activity occurred and that it demonstrated the appellant’s dominance and control, the jury was entitled to find that the later photographs, video and messages represented only apparent consent. It was also entitled to conclude that the appellant knew that the complainant was not in fact consenting. The careful directions left those sensitive factual issues properly to the jury, and the verdicts were open to it.

4. Sentence corrected. Section 85 of the Powers of Criminal Courts (Sentencing Act) 2000 applied only to offences committed after 30 September 1998. The extended sentences imposed for counts 13–15 were therefore replaced with concurrent determinate sentences of 18 years’ imprisonment. The overall extended sentence of 28 years was unaffected.

• Court of Appeal (Criminal Division): The appeal from convictions at Bolton Crown Court was dismissed. The court corrected the sentences on counts 13–15 because section 85 of the Powers of Criminal Courts (Sentencing Act) 2000 did not apply to offences committed before 30 September 1998.
• Bolton Crown Court: The appellant was convicted before His Honour Judge Morris and a jury of 18 sexual offences. An extended sentence of 28 years’ imprisonment, comprising 18 years’ custody and a 10-year extension period, was imposed.