"RT", R v

Where a possible jury irregularity emerges only after discharge, a review under section 23A of the Criminal Appeal Act 1968 requires an arguable factual basis for the alleged irregularity. A bare assertion which is contradicted by the conduct of the trial and reliable contemporaneous material does not justify investigation.

A jury direction on consent must be legally correct and sufficient for the issues raised by the evidence. The judge need not invite speculation about consensual conduct in a long relationship where the alleged acts involved serious violence or degradation and the defence was that they did not occur.

An extended sentence may remain justified despite other protective orders where its necessity for public protection is apparent from the sentencing reasons. A surcharge imposed for offending predating the relevant surcharge provisions is unlawful.

The applicant was convicted at the Crown Court at Woolwich of rape, assault by penetration and assaults occasioning actual bodily harm against his former partner. He received concurrent extended determinate sentences of 18 years for the sexual offences, comprising 12 years’ custody and a six-year extension period, together with protective orders and a surcharge.

Long after trial, he sought leave to appeal his convictions and sentence. He alleged that one juror was a former client from his tattoo business and might have known of an earlier conviction. He also challenged the consent direction, dangerousness finding, extended sentence, protective orders and surcharge. The central issues were whether the alleged jury irregularity warranted investigation and whether any aspect of the convictions or sentence was arguably wrong.

1. Conviction appeal. The court refused an extension of time and leave to appeal against conviction. Under section 23A of the Criminal Appeal Act 1968, it could direct a Criminal Cases Review Commission review if a matter relevant to leave to appeal ought to be resolved first. A review would have been required if there were an arguable basis for believing that a juror knew the applicant and might have been prejudiced by knowledge of his earlier conviction.
2. There was no such arguable basis. The applicant’s account was inconsistent with the absence of any indication when the panel was invited to say whether it recognised him, his failure to raise the concern throughout the trial despite repeated opportunities, and trial counsel’s contemporaneous note. The court therefore found no substance in the claimed juror recognition and no matter requiring investigation.
3. The consent direction was legally correct and sufficient. The alleged rapes were said to involve serious violence, degrading conduct or other aggravating features. The defence was that events of that kind had not happened. An additional direction about sexual give-and-take in a lengthy relationship would not have arisen from the evidence and would have invited improper speculation.
4. Sentence appeal. The court granted an extension of time and leave to appeal sentence, but allowed the appeal only by quashing the surcharge. The concurrent 12-year custodial terms were very lenient within the applicable guideline range. The dangerousness finding was plainly open on the offending, which showed violence, controlling behaviour and jealousy.
5. Although the judge should have stated more fully why an extended rather than standard determinate sentence was necessary, that conclusion was implicit in the sentencing remarks. The extended licence period, alongside the sexual harm prevention order and restraining order, was necessary to protect future partners. The surcharge was unlawful because some offending predated the surcharge provisions.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 895, the court refused leave to appeal conviction and allowed the sentence appeal only to quash the unlawful surcharge.
• Crown Court at Woolwich: On 14 September 2016, the applicant was convicted by a jury of sexual and violent offences against his former partner. He later received concurrent extended determinate sentences for the sexual offences, concurrent sentences for the violent offences, a sexual harm prevention order, a restraining order and a surcharge.