Townsend & Anor, R v

When considering whether hearsay evidence is so unconvincing that proceedings must be stopped under section 125 of the Criminal Justice Act 2003, the judge must assess the potential reliability of the evidence in the context of all the evidence. This is a different exercise from an ordinary submission of no case to answer. A mistaken identification by a deceased complainant does not of itself require exclusion where the jury can fairly decide whether it was a mistake or a lie.

Expert evidence on age is admissible where it assists on a matter outside ordinary experience. Assessing age from footage showing only the lower half of a person’s body may require such assistance. A sentencing judge may decide that a dangerousness report is unnecessary where properly placed to assess risk from the trial evidence.

The appellants were convicted at the Crown Court at Southampton of sexual offences against two brothers. The prosecution relied on recorded evidence from one complainant, TS, who had died before trial. It also relied on a video showing one appellant performing sexual acts on an unidentified male whose face was covered.

The appellants challenged the admission and continued use of TS’s hearsay evidence. They also challenged the amendment of the indictment to allege sexual assault on the unidentified male and the admission of expert evidence about his age. Townsend further challenged the finding of dangerousness and his extended sentence. Metcalfe challenged the total length of his consecutive sentences.

1. Conviction appeals. The court dismissed the appeals against convictions on counts 16 and 17 and refused renewed permission to appeal against the remaining convictions. The trial judge correctly admitted TS’s recorded evidence and correctly refused to stop the case under section 125 of the Criminal Justice Act 2003. That inquiry differed from an ordinary no-case submission under Galbraith. It required an assessment of the hearsay evidence’s potential reliability in the light of all the evidence.
2. The trial judge was entitled to conclude that TS’s incorrect identification of himself on the video did not compel the conclusion that he had lied. There was evidence from which the jury could find either a genuine mistake or a lie, and there was substantial evidence capable of supporting the reliability of his account. The court applied the approach in Riat, [2013] 1 WLR 2592.
3. Counts 16 and 17. The video provided a prima facie case of sexual assault. Whether the unidentified male had consented or had submitted involuntarily was for the jury. The prosecution was not required to prove that he was under a specified age. His apparent age was nevertheless relevant to the likelihood of consent.
4. The court held that expert evidence about age was admissible in this unusual setting. Although Land, [1998] 1 Cr App R 301, confirmed that a jury can ordinarily assess age without paediatric evidence, its observation suggesting such evidence would always be inadmissible was obiter and could not bear that general meaning. Estimating age from footage showing only the lower body was outside normal experience. The jury remained free to reject the expert’s opinion, including because of criticism of the Tanner Scale.
5. Sentence. The court refused both renewed applications for permission to appeal sentence. Under section 156 of the Criminal Justice Act 2003, a report on dangerousness was desirable but unnecessary where the sentencing judge, having heard the trial, could properly assess the risk. The dangerousness finding and extended sentence were upheld. Metcalfe’s total sentence of seven years was neither excessive nor disproportionate.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 1343, the court dismissed the conviction appeals on counts 16 and 17 and refused renewed permission to appeal against the other convictions and against sentence.
• Crown Court at Southampton: The appellants were convicted following trial before HHJ Rowland and a jury. Townsend received an extended sentence of 23 years, comprising 18 years’ custody and a five-year extension period. Metcalfe received a total sentence of seven years’ imprisonment.