Johnson v R. (Rev 1)

Where a defendant puts remorse in issue, the timing of guilty pleas may be explored, but the trial judge should confine the evidence to matters relevant to credibility and remorse. The jury should be directed on its limited use and should not convict merely because guilt was admitted late.

An adverse-inference direction under section 34 is inappropriate where the defendant's interview account sufficiently raises the substance of the later line of reasoning. A misdirection does not render a conviction unsafe where the point could not realistically affect whether the alleged act was proved. Sentencing terminology should accurately identify the aggravating feature, but an inaccurate label will not invalidate an otherwise appropriate sentence structure that avoids double-counting.

The applicant pleaded guilty at Bradford Crown Court to meeting a child following sexual grooming and to sexual activity with a child under 16 by kissing. He was convicted after trial of sexual activity with a child under 16 by digital penetration, and was acquitted of a further allegation.

He received concurrent sentences for the first two offences and a consecutive five-year sentence for the digital penetration, producing a total of six years' imprisonment. After a single judge refused permission, he renewed applications for leave to appeal against conviction and sentence.

The conviction application challenged cross-examination about his late guilty pleas and an adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994. The sentence application challenged the categorisation and overall length of the sentence.

1. Both renewed applications for leave were refused. The applicant had put remorse in issue through his own counsel. The trial judge therefore acted within discretion in permitting cross-examination concerning the timing of the guilty pleas.

2. Some permitted questioning concerned matters unlikely to assist the jury on the central issue of credibility. The judge should have prevented that questioning, or later directed the jury to disregard it. The judge should also have explained the limited relevance of the late pleas and made clear that conviction could not rest on delayed admissions to the other counts. Those shortcomings did not render the conviction unsafe.

3. The section 34 direction should not have been given. In interview, the applicant had referred to the stadium, the relevant time, the onward journey and a penalty. That was sufficient to raise the line of reasoning later advanced from the absence of a fine for lateness. Nevertheless, the direction could not affect the safety of the conviction: even on the applicant's estimate of the available time, the jury could properly find that there was time to commit the sexual act charged.

4. The sentencing judge should not have described the applicant's conduct as an abuse of trust, nor treated previous good character as an aggravating factor. The correct analysis was that he had capitalised on celebrity, and that good character consequently carried reduced mitigating weight. Those errors of description did not undermine the total sentence. Its structure was appropriate, avoided double-counting, and allowed an adequate guilty-plea reduction.

• Court of Appeal (Criminal Division) — renewed applications for leave to appeal against conviction and sentence refused: [2017] EWCA Crim 191.

• Bradford Crown Court — the applicant pleaded guilty to grooming and kissing offences, was convicted after trial of digital penetration, and received a total sentence of six years' imprisonment.