Usayi, R v

Evidence must be relevant to a live issue before any route to admissibility arises. A collateral assertion bearing only remotely on a complainant’s credibility is inadmissible where it cannot rationally assist the jury on the disputed allegation. The question is one of relevance, not discretion.

Where an alleged evidential error concerns only peripheral material and the central account is consistent and supported by recent complaint evidence, the conviction remains safe. In sentencing a carer for sexual activity with a mentally disturbed person, harm following the end of the relationship remains causally connected to the relationship and its escalation unless truly extraordinary facts intervene. Sentence must be assessed by reference to the overall criminality.

The appellant, a carer at a mental health hospital, was charged with three offences of sexual activity with a person with a mental disorder by a care worker, contrary to section 38 of the Sexual Offences Act 2003. He pleaded guilty to two counts. He was convicted after trial of a third count, the issue being whether he had penetrated the complainant’s mouth with his penis.

At trial the judge excluded a hospital progress note relied on by the defence as bearing on the complainant’s credibility. The appellant appealed against conviction on that evidential ruling and renewed his application for leave to appeal against a total sentence of six years’ imprisonment. The central issue on conviction was whether the note was relevant and, if wrongly excluded, whether the conviction was unsafe.

1. The court dismissed the appeal against conviction. The hospital note was not relevant to the discrete issue of oral penetration. The complainant had not been accused of lying about that issue, and the proposed inquiry into an earlier statement concerning her mother was too remote and tangential to assist the jury.

2. Irrelevant evidence is inadmissible by every route. The question is not one of discretion. The court distinguished R v Funderburk, 90 Cr App R 466, because credibility in that case bore directly on the complainant’s account of the incident itself.

3. The court did not decide the hearsay questions under sections 114, 117 and 121 of the Criminal Justice Act 2003. It considered, only on an assumption favourable to the appellant, that the document might be admissible either as non-hearsay or through those provisions. Even on that assumption, its exclusion could not affect the safety of the conviction. The document was peripheral; the complainant’s account on the critical issue was consistent and received support from her recent complaint.

4. The court added, as case-management guidance, that the scope of cross-examination of a vulnerable witness should be established in advance where possible.

5. On sentence, the court held that a carer who begins a sexual relationship with a mentally disturbed person cannot sever causation merely because harm follows when the relationship ends. Save for truly extraordinary facts, there is an unbroken chain between the relationship, its escalation and that harm. The sentencing judge was entitled to assess the overall criminality, including planning in the relationship as a whole, grooming and sexual-image exchanges. The six-year sentence on count 3 was not manifestly excessive.

6. Leave to appeal sentence was granted only to correct the victim surcharge. The order for £170 was quashed and replaced with an order for £120. Apart from that technical correction, the sentence appeal was dismissed.

• Court of Appeal (Criminal Division) — In [2017] EWCA Crim 1394, the court dismissed the conviction appeal and upheld the custodial sentence, save for substituting a £120 victim surcharge for the erroneous £170 surcharge.

• Crown Court at Chichester — The appellant pleaded guilty to two counts and was convicted after trial of a third count. He received concurrent sentences of 12 months and three years on the guilty counts and six years’ imprisonment on the third count.