Gary Bennett v R

Applications to extend the time for appealing against conviction require the court to examine all the circumstances, including delay, reasons, finality, victims, retrial practicality and possible injustice. A very long, largely unexplained delay, with no realistic retrial and the custodial sentence served, places an applicant under a duty to show at least a compelling case on the merits. Strong asserted merits are not decisive. A distress direction is generally recommended and usually should be given where a complainant shows distress in the witness box, but it is not automatic. The significance of any omission depends on the context. In an emotionally charged child-sex case, directing the jury to decide on the evidence may be insufficient if the complainant’s demeanour is itself evidence.

The applicant had been convicted at the Crown Court at Derby of three sexual offences against a child. He renewed his application for an extension of 1,965 days in which to seek leave to appeal against conviction, following refusal by a single judge.

He alleged failures to direct the jury about the complainant’s distress, sympathy and emotion, the consequences of incomplete cross-examination, and inconsistencies in the complaint evidence. The central issue was whether the alleged deficiencies, considered cumulatively, amounted to a sufficiently compelling case to justify an exceptional extension of time under section 18(3) of the Criminal Appeal Act 1968.

1. Disposition. The application for an extension of time in which to apply for leave to appeal against conviction was refused.
2. Under rule 36.4 of the Criminal Procedure Rules and section 18(3) of the Criminal Appeal Act 1968, the court must examine all the circumstances. Relevant matters include the length and explanation of the delay, the public interest in finality, the interests of victims, the practicality of a retrial and possible injustice to the defendant. Strong asserted merits are not a trump card. R v Ashley King [2000] 2 Cr. App. R. 391 was exceptional and did not displace the more recent approach.
3. The judge’s reason for giving no direction about the complainant’s distress was unsound. A direction about the evidential significance of distress in the witness box is recommended and should usually be given, although it is not required in every case. R v JS [2019] EWCA Crim 2198, R v Thompson [2014] EWCA Crim 743 and R v Lake [2023] EWCA Crim 710 concerned materially different circumstances. The omission might have been an error, but its materiality had to be assessed in the context of the whole case. Counsel’s failure to correct the proposed directions was also relevant under R v Reynolds [2019] EWCA Crim 2145.
4. Given the emotional features of the case, the jury should have been directed to avoid deciding through sympathy or emotion. A direction to decide on the evidence was insufficient because that evidence included the complainant’s demeanour. The authorities relied on concerning the importance of such a direction, including R v Razaq Assadullah [2004] EWCA Crim 2917 and R v David G [2006] EWCA Crim 500, did not make it mandatory in every case.
5. The remaining grounds had little or no weight. The summing-up adequately addressed the constraints and potential unfairness of cross-examining a child witness, and counsel could make the unasked point in closing. The judge was not required to list every consistency and inconsistency where the account’s development and competing explanations had been fairly put before the jury.
6. The alleged errors had to be assessed cumulatively in the context of the very late application. This was not merely a credibility contest: the laptop evidence and surrounding circumstances provided powerful support for the prosecution case. The applicant therefore failed to show a sufficiently compelling case to justify the lengthy extension.

• Court of Appeal (Criminal Division): refused the renewed application for an extension of time to seek leave to appeal against conviction.
• Crown Court at Derby: convicted the applicant of three sexual offences against a child and imposed the sentence described in the judgment.