R v Driss Serhir

On an out-of-time application for permission to appeal, the decisive question is whether an extension is in the interests of justice. That requires consideration of the proposed appeal’s merits. A genuine and sufficiently arguable ground casting doubt on trial fairness or conviction safety will generally justify an extension; grounds with no real prospect of success will not.

Evidence of a complainant’s previous sexual conduct is inadmissible unless the statutory conditions are met. Section 41 of the Youth Justice and Criminal Evidence Act 1999 is compatible with Article 6 because it permits relevant evidence with probative value while protecting the complainant from irrelevant questioning.

The applicant sought renewed permission, long out of time, to appeal convictions for three counts of rape of a child under 13 and the concurrent extended sentences imposed at the Crown Court at Harrow.

He alleged an unfair trial, relying on the admission of bad-character evidence, the exclusion of allegations concerning other men, the forensic evidence, and an asserted connection with a juror. He also challenged the length of sentence, the pre-sentence report, and the finding of dangerousness.

The central issue was whether the asserted grounds had a real prospect of success such that it was in the interests of justice to extend time and grant permission to appeal.

1. The renewed applications were refused. Although the applicant’s mental-health difficulties explained part of the delay, the delay was not otherwise satisfactorily explained. The governing question was whether an extension was in the interests of justice, which required the court to assess the merits of the proposed appeals.
2. The conviction grounds disclosed no real prospect of success. The evidence concerning previous allegations by the complainant was inadmissible under section 41 of the Youth Justice and Criminal Evidence Act 1999. The provision was compatible with Article 6 of the ECHR because it fairly and proportionately confined the evidence to material that was relevant and probative. There was no basis to suggest that the earlier allegations were untrue or relevant to an issue at trial.
3. The trial counsel had properly refrained from challenging forensic evidence where the defence expert’s evidence was no more favourable. The bad-character evidence was relevant to the applicant’s propensity to carry weapons. The complaint concerning a juror had not been raised at trial and was unsupported. The court found the trial process scrupulously fair, including the judge’s balanced summing-up and legal directions. Nothing cast doubt on the safety of the convictions.
4. The sentence grounds also lacked merit. The sentencing judge had properly assessed culpability, harm, aggravation and mitigation, including the applicant’s age, immaturity, bereavement and mental health. The pre-sentence report was comprehensive and available in sufficient time. The finding of dangerousness and the decision to impose an extended sentence pursuant to section 279 of the Sentencing Act 2020 were supported by clear and cogent reasons. The three-year extension period and nine-year custodial term were within the reasonable and available ranges.

• Court of Appeal (Criminal Division). On 18 January 2024, the court refused the renewed applications for permission to appeal against conviction and sentence, and refused extensions of time: [2024] EWCA Crim 54.
• Crown Court at Harrow. On 4 May 2022, following a jury trial before HHJ Francis, the applicant was convicted of three counts of rape of a child under 13. On 18 July 2022, he received concurrent extended sentences of 12 years, comprising nine years’ custody and a three-year extension period.