R v Ian Michael Kerry

In proceedings for breach of a Sexual Harm Prevention Order, a prior breach of the same order is relevant bad-character evidence. Its admission turns on trial fairness, and clear directions may confine its use. A complaint about trial representation requires a demonstrated potential effect on the fairness of the trial. Where the jury must decide whether the order was breached, it is entitled to see the order in full; redaction would impair transparency and invite speculation. A complaint that the order disclosed the nature of previous offending will not succeed without a timely challenge and demonstrable prejudice. A claim that police accessed legally privileged material does not found an appeal where there is no evidence of access and the issue was only whether refusal to surrender the phone was a reasonable excuse.

The applicant was convicted at the Crown Court at Leeds of three breaches of a Sexual Harm Prevention Order imposed after earlier sex-offence convictions. The breaches concerned failure to notify a residence, notification of a false address, and refusal to hand over an internet-capable mobile phone. He received a suspended sentence of two years.

After a single judge refused permission, he renewed the application. His original grounds alleged access to legally privileged material, wrongful admission of bad-character evidence, and inadequate representation. New counsel raised a further issue: whether the jury should have received the order in full because it disclosed that earlier offending involved children. The central questions were whether any ground was arguable and whether the jury’s sight of the unredacted order caused unfairness or prejudice.

1. Disposition. The renewed application for permission to appeal against conviction was refused.
2. Legally privileged material. The applicant was required to hand over the mobile phone and refused. His later assertion that it contained legally privileged material raised only whether that circumstance supplied a reasonable excuse. There was no suggestion that the police had accessed privileged material, and the material was irrelevant to the issues tried. The jury’s verdict therefore disclosed no arguable ground of appeal.
3. Bad character. The earlier conviction for breach of the same Sexual Harm Prevention Order was relevant bad-character evidence. The question for the trial judge was whether admitting it would make the trial unfair. The judge was entitled to conclude that it would not, and her clear directions limiting the jury’s use of the evidence were adequate. The suggestion that the evidence had been admitted by stealth was untenable because it followed a full argument before the judge.
4. Representation. A complaint about the competence of previously instructed lawyers requires a potential effect on the fairness of the trial. The court applied the approach stated in R v Sutherland & Khan [2022] EWCA Crim 72. The applicant had been represented by an experienced solicitor advocate, had been able to present his case fully, and had adduced substantial evidence. There was no sustainable suggestion that the trial was unfair.
5. The order provided to the jury. The jury were entitled to see the full Sexual Harm Prevention Order because they had to determine the alleged breaches and could not properly perform that function without the complete terms. Redaction would have undermined transparency and encouraged speculation. No application for redaction or special directions had been made before or during the trial, indicating that the point was a product of hindsight. In any event, the jury knew that the applicant was a sex offender, and the precise nature of his earlier offences was irrelevant and did not cause significant prejudice.
6. Costs. Under section 18(6) of the Prosecution of Offences Act 1985, the applicant was ordered to pay the reasonable costs of the transcripts, assessed at £282.58p.

1. Court of Appeal (Criminal Division): Refused the renewed application for permission to appeal against conviction and ordered payment of the reasonable transcript costs.
2. Single judge: Refused permission on the applicant’s original grounds. The additional point concerning the jury’s sight of the full Sexual Harm Prevention Order apparently had not been considered.
3. Crown Court at Leeds: The applicant was convicted on three counts of breaching the order and received a suspended sentence of two years.