Midgley v R

Fresh evidence on a criminal appeal must be assessed under Criminal Appeal Act 1968, s 23. Evidence which is capable of belief does not afford a ground for allowing an appeal if it does not undermine the safety of the verdict. A jury’s request for information about an uncalled witness will not ordinarily justify a fresh-evidence appeal.

For historic sexual offending, sentence requires an assessment of harm, culpability, aggravating and mitigating factors, and the statutory maximum applicable when the offence was committed. The court should not calculate the sentence which might have been imposed at the time of the offending.

The appellant was convicted at Lewes Crown Court of two historic indecent assaults upon his step-daughter, contrary to Sexual Offences Act 1956, s 14(1). He received concurrent terms of seven and three years’ imprisonment.

His conviction appeal relied on fresh evidence from Richard Lloyd, who had worked at the garage where the complainant said the assaults occurred. The proposed evidence was said to show that the witness would have been aware of abuse at the garage. The appellant also challenged the seven-year sentence as excessive.

The central issues were whether the fresh evidence rendered the convictions unsafe and whether the sentence properly reflected the applicable approach to historic sexual offending.

1. Conviction appeal dismissed. Although there was no reasonable explanation for the failure to obtain Richard Lloyd’s evidence before either trial, the court received it de bene esse and considered the relevant criteria under Criminal Appeal Act 1968, s 23.

2. The evidence was capable of belief, apart from Mr Lloyd’s assertion that he had always been willing to give the police a statement. It nevertheless did not afford a ground for allowing the appeal. It did not establish that the assaults could not have occurred while Mr Lloyd was at the garage. The complainant’s evidence allowed for him to have been in the office, from which the sofa could not be seen.

3. The jury’s note asking whether Mr Lloyd had been interviewed or had made a statement did not alter that conclusion. Such questions are not uncommon. The jury had correctly been directed to decide the case only on the evidence it had heard, and should not speculate about absent evidence.

4. Sentence appeal allowed. Applying the guidance in R v. H [2011] EWCA Crim 2753, historic sexual-offence sentencing requires assessment of harm, culpability, aggravating and mitigating factors, and the maximum sentence at the time of offending. It does not require reconstruction of the likely sentence at that earlier date.

   The psychological harm was not severe, but culpability was high because the appellant abused a position of trust in caring for his step-daughter. His previous good character remained mitigating, though of reduced weight. A seven-year term was excessive. The court quashed that sentence on count 1 and substituted five years’ imprisonment; the three-year concurrent sentence on count 2 remained. The appeal was allowed to that extent only.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 1421, the court granted leave, dismissed the appeal against conviction, and allowed the sentence appeal to the limited extent of substituting five years’ imprisonment on count 1.

• Crown Court at Lewes: On 24 May 2013, the appellant was convicted of two counts of indecent assault and sentenced to concurrent terms of seven and three years’ imprisonment.