Sakin & Anor, R. v

An appellate court may revise an order it has pronounced while it remains unissued, unsealed and unrecorded. That power should be exercised where later-established facts show that the original disposition rested on a fundamental mistake and revision is necessary in the interests of justice. In sexual-offence trials, evidence about a complainant’s sexual behaviour remains subject to both Youth Justice and Criminal Evidence Act 1999 section 41 and, where applicable, the bad-character provisions of the Criminal Justice Act 2003. Material inconsistencies between two witnesses do not automatically require the particularised direction appropriate to inconsistencies within one witness’s account. Trial advocates have a core duty to attend the summing-up, identify material errors promptly and accurately inform the appellate court.

Two appellants were convicted in the Croydon Crown Court of sexual offences and related offending arising from the alleged controlled prostitution of two women. They appealed against conviction, and the first appellant also challenged sentence.

On 2 March 2021 the Court dismissed the second appellant’s appeal but allowed the first appellant’s appeal, quashing his convictions and ordering a retrial because an incomplete transcript appeared to show that the judge had failed to sum up his evidence. The judge’s audio recording and a complete transcript later established that she had done so. The Court therefore reconsidered its earlier order and the remaining grounds concerning cross-examination, inconsistent evidence and sentence.

Disposition. The Court revoked its earlier order allowing the first appellant’s appeal and quashing his convictions. The renewed applications for leave and both appeals against conviction were dismissed. The renewed application for leave to appeal sentence was also dismissed.

1. Cross-examination under section 41. The statutory scheme restricts evidence and questions about a complainant’s sexual behaviour. The purpose and relevance of the proposed evidence must be assessed by reference to an actual issue in the case. The judge was entitled to permit evidence about the complainant’s earlier escorting and control of the other complainant, because it bore on whether she was willing or unwilling to provide sexual services during the relevant period. She was entitled to refuse questioning about alleged consensual sex on the first night and later consensual sexual activity. Those matters were irrelevant to the issues being tried, or invited speculation and improper reasoning about credibility. Once the statutory criteria are satisfied, a judge has no residual discretion to exclude the evidence: Re T [2012] EWCA Crim 2358. The ruling disclosed no arguable error.
2. Inconsistencies between witnesses. The detailed direction proposed by the appellants might be appropriate for internal inconsistencies in one witness’s evidence. It was neither apt nor necessary for alleged inconsistencies between two separate witnesses. The jury had been directed to assess the truthfulness, accuracy and reliability of the witnesses. There was no material error, and this disposed of the second appellant’s appeal.
3. Reconsideration. The Court recognised an implicit power to revise an order before it has been issued and sealed and recorded. It applied the principles in R v Yasain [2015] EWCA Crim 1277 and distinguished the stricter position applying to a recorded order, discussed also in R v Gohil [2018] EWCA Crim 140. The earlier order had not been issued or sealed, and the complete record showed that its factual premise was wrong. Revision was therefore plainly in the interests of justice.
4. Advocates and sentence. Trial advocates have a core duty to attend the summing-up and promptly raise material errors of law or fact. Failure to do so may be relevant on appeal, as recognised in R v Reynolds (Nicholas) [2019] EWCA Crim 2145. The first appellant’s sentence was within the applicable guideline framework, was not disproportionate and disclosed no arguable basis for challenge.

The reporting restriction imposed under section 4(2) of the Contempt of Court Act 1981 was lifted.

• Court of Appeal (Criminal Division) — [2021] EWCA Crim 411: revoked its earlier unsealed order allowing the first appellant’s appeal, dismissed both appeals and the renewed applications for leave, and lifted the reporting restriction under section 4(2) of the Contempt of Court Act 1981.
• Croydon Crown Court — convicted both appellants on 23 May 2019 and sentenced the first appellant to 14 years’ imprisonment and the second appellant to 9 years’ imprisonment.