R v Ernest Kalu Obi

Evidence from a child’s ABE interview is not excluded merely because the interviewing guidance was seriously breached. The decisive questions are the effect of the breaches on the quality of the evidence and the fairness of admitting it. A previous conviction admitted as bad-character evidence may be rebutted, but the process must remain subject to judicial control and must not become a retrial of the earlier offence. Without material fresh evidence about the primary facts, an attempt to show that the earlier jury was wrong will not ordinarily overcome the evidential presumption arising from the conviction. Where an unlawful sentence must be corrected on appeal, the court must impose the legally appropriate sentence while ensuring that it is no more severe than the sentence imposed below and does not result in later release.

The applicant renewed applications for leave to appeal against convictions for two counts of sexual assault of a child under 13 and one count of assault by penetration of a child under 13, and against the sentences imposed by the Crown Court at Snaresbrook. The convictions followed the admission of an ABE interview in which the complainant’s mother had been present and had intervened more than 100 times. The applicant also challenged the admission and treatment of his earlier conviction as bad-character evidence, seeking to adduce material intended to undermine the earlier complainant’s credibility.

The sentence on the penetration count was an unlawful determinate term because the court should have imposed a special custodial sentence for an offender of particular concern. The central issues were whether the interview should have been excluded, whether the applicant could reopen the earlier conviction in the present trial, and how the unlawful sentence should be corrected without contravening the statutory restriction on increasing sentence.

1. Conviction appeal refused. The admission of the ABE interview was governed by the impact of the breaches on the quality of the evidence and the fairness of admitting it, rather than by the number or seriousness of the breaches alone. Applying R v K [2006] EWCA Crim 472, the trial judge had carefully scrutinised the interview and had correctly asked whether a properly directed jury could be sure that the child’s account was reliable and untainted. There was no realistic prospect that the conviction would be considered unsafe.
2. The earlier conviction was admissible under section 74(3) of the Police and Criminal Evidence Act 1984, subject to the applicant’s opportunity to rebut the evidential presumption. The principle in R v C [2011] 1 Cr App R 17 requires proper judicial control and case management. The defendant must identify in the Defence Statement the ingredients of the case relied on to show that he did not commit the earlier offence. A bare denial is insufficient, and the present trial must not become a rehearing of the earlier trial. Here, the proposed evidence was not fresh evidence about the primary facts. It sought to revisit the same evidence considered by the earlier jury and could not assist materially.
3. Sentence appeal allowed to the limited extent required to correct an unlawful sentence. Under R v A [2020] 1 WLR 5014, the court must first determine the appropriate sentence without regard to likely time in custody, then compare it with the original sentence to ensure compliance with section 11(3) of the Criminal Appeals Act 1968. Applying R v D [2022] 1 Cr App R(S) 47, the custodial term had to be reduced so that automatic release occurred no later than it would have under the unlawful sentence.
4. The sentence on count 3 was quashed and replaced by a special custodial sentence of 8 years and 2 months, comprising 7 years and 2 months’ custody and an extended licence period of one year. It ran concurrently with the sentences on counts 1 and 2. Leave on the remaining sentencing grounds was refused.

• Crown Court at Snaresbrook: following trial, the applicant was convicted and sentenced to 11 years’ imprisonment on count 3 and concurrent terms of 8 years on counts 1 and 2.
• Court of Appeal (Criminal Division): renewed leave applications were refused in relation to conviction. Leave to appeal against sentence was granted solely to correct the unlawful sentence, and the sentence on count 3 was substituted.