R v Freddie Elliot Millis

Internet searches capable of showing a sexual interest in underage girls may be admitted as bad-character evidence under section 101(1)(d) of the Criminal Justice Act 2003 where that interest is in issue. The evidence may bear on an interest in young girls generally or in the particular complainant. Its probative value must nevertheless outweigh any unfair prejudicial effect.

A jury must not treat such searches as proving guilt. Clear directions requiring a clinical assessment of the evidence and prohibiting prejudicial reasoning may be sufficient when read as a whole.

For an offender who was aged 16 or 17 when offending, the usual starting point is the sentence likely to have been imposed at that time. Sentencing guidance is a rough guide, not a mechanical rule.

The applicant was convicted at Guildford Crown Court of rape, sexual assault and related sexual offences against a child under 13. The offending was said to have occurred when he was aged 16 or 17. He received an extended sentence of 18 years, comprising 11 years’ custody and a seven-year extension period.

The prosecution had relied in part on internet searches and bookmarked material suggesting a sexual interest in underage girls. The trial judge admitted that evidence as bad character evidence. The applicant renewed his application for leave to appeal against conviction and appealed against sentence.

The central issues were whether the bad-character ruling and jury directions rendered the convictions unsafe, whether the applicant was dangerous, and whether proper weight had been given to his age and maturity at the time of offending.

1. The application for permission to appeal against conviction was dismissed. The internet-search evidence was relevant to the disputed issue of the applicant’s sexual interest in young girls and, on the facts, in the complainant. It was admissible through section 101(1)(d) of the Criminal Justice Act 2003. The court rejected the contention that the judge had to distinguish between teenage and prepubescent girls. The material was capable of bearing on both categories and its probative value was strong. Section 101(3) did not require exclusion.

2. The exchange concerning the bookmarked TinkeyTyler website did not render the conviction unsafe. There was no evidence of the site’s content, but the material point was whether the applicant had deliberately reached and bookmarked it after a search inconsistent with his explanation of accidental searching. The exchange was a small part of the evidence, was not relied on in the Crown’s speech or summing-up, and was subject to the standard direction that the jury decide only on the evidence.

3. The directions on the searches were adequate when considered as a whole. The judge told the jury to disregard the evidence unless satisfied that the applicant had made the searches, and not to reason directly from the searches to guilt. She warned them against prejudice and directed a clinical assessment. The reference to whether the evidence made offending more likely than not did not, in context, undermine the overall direction.

4. The sentence appeal was allowed. Applying section 308 of the Sentencing Act 2020, the judge was entitled to find dangerousness. Despite the applicant’s effective good character, the lengthy period without offending and his changed circumstances, the pre-sentence report, lack of insight, continued interest in young girls and renewed contact with the complainant supported a significant risk of serious harm through further specified offences.

5. The judge nevertheless gave insufficient reduction for youth. The appropriate approach was to start with the sentence likely to have been imposed when the offender was aged 16 or 17. The applicable guidance was a rough guide. On the finding of ordinary maturity, and absent evidence that dyslexia affected culpability, the 14-year adult equivalent required a reduction of about one third. The court substituted an extended sentence of 14 years, comprising nine years’ custody and a five-year extension period.

• Court of Appeal (Criminal Division): By [2022] EWCA Crim 1582, refused permission to appeal against conviction, granted permission to appeal against sentence, allowed the sentence appeal, quashed the 18-year extended sentence and substituted a 14-year extended sentence.

• Guildford Crown Court: On 13 December 2021, convicted the applicant of rape, sexual assault and related sexual offences against a child under 13. On 31 January 2022, imposed an extended sentence of 18 years. The lower-court citation is not stated in the judgment.