R v Mark Smith & Ors

On a submission of no case to answer, the prosecution evidence must be taken at its highest. Where detailed evidence fixes charged acts to a particular occasion, evidence makes that occasion impossible, and there is no evidential basis for another occasion, a jury cannot fill the gap by speculation. The counts should be withdrawn, and convictions dependent on them may be unsafe.

In a complex multi-handed trial, pre-recorded cross-examination of vulnerable witnesses may be treated as one managed process. A later guilty plea does not automatically require editing or discharge if fairness can be protected by directions. Sentencing historical offending committed as a child requires a principled assessment of age, background and present sentence. Adult guidelines may assist, but the sentence must reflect youth and unusual mitigation.

The judgment concerned convictions arising from three trials involving extensive allegations of intergenerational and interfamilial sexual abuse of children. Natalie and Philip Wellington appealed against conviction, while Natasha Webb and Luke Baker appealed against sentence. Renewed applications for leave to appeal against conviction or sentence were also made by Tracey and David Baker, Luke Baker, Kirsty Webb, James Evans, Mark Smith, Ann Marie Clare and Violet Griffiths.

The central issues included the admission of non-defendant bad character evidence, submissions of no case to answer, alleged conspiracy evidence, the use of pre-recorded cross-examination under section 28, references to inadmissible material in closing submissions, propensity evidence and sentencing of a child for historical offending.

Disposition

The appeals against conviction by Natalie and Philip Wellington and the appeal against sentence by Natasha Webb were dismissed. Luke Baker’s sentence appeal was allowed. The renewed applications by Tracey and David Baker were granted and their conviction appeals were allowed. The remaining renewed applications were dismissed, except that Violet Griffiths’s application was refused.

Conviction appeals

1. For Tracey and David Baker, the allegations concerning the birthday party were anchored by detailed evidence to a specified occasion. Independent evidence showed that David Baker was absent, and there was no evidential basis for another occasion. Applying the principle in R v Galbraith (1981) 73 Cr App R 124, a properly directed jury could not safely convict on that evidence. The counts should have been withdrawn. The unsafe verdicts also created a possible reinforcing effect on related substantive and conspiracy convictions.
2. The court declined to endorse a general rule that sexual assault of a child automatically implicated adults responsible for the child. However, on the facts, similar offences against members of the same cohort by perpetrators linked to other perpetrators could support an inference of a common conspiracy.
3. Norman Williams’s previous convictions were admissible as important explanatory evidence under section 100(1)(a) and (2) of the Criminal Justice Act 2003. They explained his presence in the evidence and the defendants’ association with him. The absence of a specific direction did not render the Wellington convictions unsafe.
4. Cross-examination recorded under section 28 of the Youth Justice and Criminal Evidence Act 1999 was properly treated as an overall, judge-managed process in this complex trial. Editing questions asked on behalf of a defendant who later pleaded guilty could distort that process and prejudice other defendants. The judge was entitled to refuse editing or discharge, particularly where objections had not been made earlier and suitable directions were available.
5. Reference in closing speech to material ruled inadmissible was improper, but the omission did not create a danger of an unsafe conviction. A fundamental attack on an expert who had not given evidence was regrettable without an opportunity to respond, but harmless in the context of the evidence as a whole. Material found on Mark Smith’s devices was capable of demonstrating propensity and was admissible; the absence of a specific direction did not undermine the conviction.

Sentencing

Natasha Webb’s nine-year sentence was neither wrong in principle nor manifestly excessive. For historical offending committed as a child, the sentencing court is not necessarily bound by the maximum sentence applicable at the time of offending, and the historical starting point need not be the present endpoint. As explained in R v Ahmed & Ors [2023] EWCA Crim 281, the difficulties must be addressed on principled grounds. Luke Baker’s 28-month sentence was nevertheless too high given his age, background, one-off offending and unusual mitigation. It was quashed and replaced with an immediate sentence of 18 months, recognising 12 months already served.

• Court of Appeal (Criminal Division) Considered appeals against conviction and sentence and renewed applications for leave arising from three trials. Conviction appeals by Tracey and David Baker and the sentence appeal by Luke Baker succeeded in whole or in part; the remaining appeals and applications were dismissed or refused.
• Crown Court at Wolverhampton His Honour Judge Ward convicted and sentenced the appellants and applicants following three trials concerning extensive allegations of sexual abuse.