Kipps-Bolton, R. v

Evidence of internet visits to material depicting sexual activity with sleeping women may be admitted under Criminal Justice Act 2003 section 98 where the jury are directed to use it narrowly, as evidence of an interest in sexual activity with sleeping women, rather than as general propensity to commit non-consensual sexual acts. Its prejudicial effect does not preclude admission where it is relevant and probative.

For sentencing, a complainant may be particularly vulnerable because of personal circumstances where the offender knew that she was seriously incapacitated, waited until she lost consciousness, and then committed the offence. A concurrent sexual offence committed in the same brief sequence should not increase sentence where it adds no real overall gravity.

The applicant was convicted at Warwick Crown Court of assault by penetration and sexual assault arising from one incident involving a university student whom he had taken to his home. Photographs on his phone showed the acts alleged. The prosecution also relied on later internet visits to material depicting sexual activity with sleeping women.

He renewed an application for leave to appeal against conviction after refusal by the single judge, challenging the admission and presentation of that evidence and a section 34 adverse-inference direction. By leave of the single judge, he also appealed his nine-year sentence for assault by penetration. The central sentencing issue was whether the complainant was particularly vulnerable due to personal circumstances and whether the concurrent sexual-assault count justified an uplift.

1. The renewed application for leave to appeal against conviction was refused. The prosecution case was not weak even without the disputed internet evidence. It was supported by the complainant’s account, the photographs, and contemporaneous communications.

2. The internet evidence was properly admitted under section 98 of the Criminal Justice Act 2003. The Recorder’s final direction correctly confined its possible use to showing an interest in sexual activity with sleeping women. It was not a direction that the evidence established a general propensity to commit non-consensual sexual acts. The evidence was relevant and probative, and the Recorder acted within his discretion in allowing the jury to assess it. The lack of specific reliance on titles suggesting incestuous or paedophilic content meant that no editing direction was required.

3. The Recorder was entitled to direct the jury on adverse inferences from the applicant’s failure in his first police interview to mention the photographs. Once he gave evidence and was cross-examined on that omission, the jury could properly take it into account. The direction itself was unobjectionable.

4. The appeal against sentence was allowed to a limited extent. The Recorder was entitled to place the principal offence in category 2A. The applicant had encountered the complainant when she was seriously incapacitated, brought her to his flat, waited for her to lose consciousness, and then offended. Those circumstances made her particularly vulnerable due to her personal circumstances. The recording of the offence justified culpability A.

5. However, the sexual assault consisted of touching the complainant’s bottom during the same brief sequence as the assault by penetration. It did not add to the incident’s overall gravity. The nine-year sentence on count 1 was quashed and replaced with eight years’ imprisonment. The concurrent three-year sentence on count 2 and the restraining order remained unaffected.

• Court of Appeal (Criminal Division) — In [2020] EWCA Crim 1641, the court refused the renewed application for leave to appeal against conviction. It allowed the sentence appeal to the extent of reducing the sentence for assault by penetration from nine to eight years’ imprisonment.
• Crown Court at Warwick — On 16 August 2019, the applicant was convicted by a jury of assault by penetration and sexual assault. He received nine years’ imprisonment on count 1 and a concurrent three years on count 2.