Marshall, R. v

Unsubstantiated police intelligence from unidentified or generally described sources will not satisfy the substantial-probative-value requirement in section 101B of the Criminal Justice Act 2003.

Under section 41 of the Youth Justice and Criminal Evidence Act 1999, a complainant’s unrelated sexual behaviour is not relevant merely because it might provide an alternative source for a detailed account of alleged sexual offending. Historic sexual offending must be sentenced by reference to current practice, while allowing appropriate weight to the passage of time and other mitigating features. The overall sentence must nevertheless mark the full seriousness of the offending.

The appellant was convicted at the Crown Court at Teesside of 14 historic sexual offences against four male complainants. The offences were committed between 1977 and 1980, when three complainants were children and the fourth was a teenager. He received a total sentence of 14 years’ imprisonment.

He appealed against conviction on grounds concerning the exclusion of police intelligence about alleged drug dealing by complainants, the refusal of leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine one complainant about another sexual encounter, and alleged disclosure failures. He also appealed against sentence. The central issues were whether the rulings rendered the convictions unsafe and whether the total sentence properly reflected the historic nature of the offending and the principle of totality.

1. The appeal against conviction was dismissed. The judge was entitled to exclude the additional police intelligence concerning two complainants. It was largely unsubstantiated and came from unidentified or vaguely identified sources. Applying section 101B of the Criminal Justice Act 2003, it lacked substantial probative value on a matter of substantial importance. The defence was already able to rely on a complainant’s drug conviction and another complainant’s admission of possessing cocaine.
2. The refusal of leave to cross-examine PW about an unrelated sexual encounter was correct. Section 41(5) of the Youth Justice and Criminal Evidence Act 1999 did not apply because the prosecution had not relied on evidence that the alleged offending had caused PW later to question his sexuality. Under section 41(3)(a), the proposed evidence did not relate to a relevant issue other than credibility. A detailed account of alleged sexual conduct does not, without more, make other sexual behaviour admissible as an alternative explanation for the detail. The fact that the other encounter occurred at about the same time did not alter that conclusion. The circumstances were materially different from R v Martin [2004] 2 Cr App R 22, where the evidence concerned possible bias or motivation to fabricate.
3. The alleged disclosure deficiencies did not undermine trial fairness or the safety of the convictions. Material capable of undermining the prosecution case or assisting the defence had been disclosed. The limited use of the investigating officer’s record did not produce a fundamental error. The prosecutor’s improper question about an alleged lunchtime conversation was regrettable, but it was not pursued and could not affect the safety of the convictions.
4. The appeal against sentence was allowed in part. Historic sexual offending is sentenced by reference to current practice, but the sentencing exercise must reflect the passage of time to an appropriate extent. The appellant’s youth and immaturity when offending, his small age difference from PW, and the absence of later sexual convictions or indictable offending justified a reduction. The total sentence was reduced from 14 years to 11 years. The sentence on count 7 became concurrent, and the sentences on counts 10 to 14 were replaced by concurrent sentences of seven years, consecutive to the sentences on counts 1 to 6.

• Court of Appeal (Criminal Division): by judgment dated 9 April 2014, dismissed the conviction appeal and allowed the sentence appeal in part, varying the total sentence from 14 years to 11 years.
• Crown Court at Teesside: following a jury trial before HHJ Moorhouse, convicted the appellant of 14 sexual offences on 22 February 2013 and sentenced him to 14 years’ imprisonment on 25 March 2013.