REGINA v LUKE WHITBREAD

Evidence about a complainant’s appearance or presentation is relevant to reasonable belief about age only if it could have influenced the defendant’s belief at the time of the alleged offending. Photographs obtained after arrest, and not seen by the defendant beforehand, cannot assist on that issue where the defence case rests on an express assertion about the complainant’s age. An appellate challenge based on alleged failures by trial lawyers requires an arguable basis that the conduct affected the safety of the conviction. Permission was refused where the proposed evidence was irrelevant to the defendant’s stated case and the alleged unused material did not support an issue advanced at trial.

The applicant was convicted in the Crown Court at Derby on 11 child sexual-offence counts arising from a sexual relationship with MW, who was aged 14. He was sentenced to six years and six months’ imprisonment. The principal issue at trial was whether he genuinely and reasonably believed that MW was over 16, his case being that he had been told she was 17.

Permission to appeal was sought after refusal by a single judge. The renewed grounds challenged the refusal of an application under the Youth Justice and Criminal Evidence Act 1999 to adduce photographs of MW, and alleged that trial lawyers had failed to provide material said to support a blackmail allegation. The central issues were whether the photographs were relevant to the applicant’s belief about age and whether the alleged material gave an arguable basis for treating the convictions as unsafe.

1. Disposition. The renewed application for permission to appeal against conviction and the application for permission to add additional grounds were refused. It was not arguable that any conviction was unsafe. The conviction on the indecent-photograph count was in any event outside the proposed grounds.
2. Photographic evidence. The Court entirely agreed with the single judge. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, photographs of MW presenting in a provocative or older-looking way had no relevance to the issue the jury had to decide. The applicant had not seen them before the alleged offending, and his case was that MW and her mother had expressly told him she was 17. He gave no evidence that his belief depended on MW’s appearance or presentation. The photographs therefore could not have influenced his belief at the material time.
3. Trial representation and unused material. The alleged messages were not shown to provide an arguable basis for criticism of the trial legal team. The applicant had not advanced at trial that MW or her mother had blackmailed him concerning the complaint. His recorded reference to blackmail had been explained as a deception directed at his partner, while the payments to MW’s mother had been explained as an attempt to keep the relationship secret. Trial counsel had identified tactical reasons for avoiding blackmail as an issue. The alleged material was not produced to the Court and, in the circumstances, it was unnecessary to receive it at the hearing.
4. Reasonable belief and the evidence. The jury had been entitled to assess the credibility of evidence that the applicant was told MW was older, and to consider messages and recorded conversations that contradicted his account.

• Court of Appeal (Criminal Division): [2021] EWCA Crim 1413. On 21 September 2021, the court refused the renewed application for permission to appeal against conviction and refused permission to add additional grounds. The court agreed with the single judge’s refusal of the original ground.
• Crown Court at Derby: On 25 September 2020, the applicant was convicted of 11 counts relating to child sexual offences and was sentenced on 30 October 2020 to six years and six months’ imprisonment.