R v DB

A conviction is not necessarily unsafe because a judge misdirected the jury on an ingredient of an offence. Materiality must be assessed by reference to the real issues, the defence case and the evidence. Cross-admissibility may permit proof of one sexual offence to support another of the same nature, but distinct assault and child sexual-offence allegations remain separate. Under the Sexual Offences Act 1956, prosecution as indecent assault may be an abuse where the conduct is only unlawful intercourse and a statutory time limit is thereby avoided. The distinction depends objectively on the prosecution case. An unlawful sentence must be corrected, but the appellate court need not preserve its overall structure by substantial re-sentencing.

DB was tried at the Crown Court at Liverpool on 11 historical sexual and assault charges arising from allegations by four complainants. He was convicted of six counts and sentenced to a total structure including a special custodial sentence under section 278 of the Sentencing Act 2020.

His conviction appeal challenged the cross-admissibility direction, directions and particulars concerning consent on the rape count, and the prosecution of an indecent-assault count as an alleged abuse of process. The sentence appeal challenged a sentence exceeding the statutory maximum and a surcharge order. The central issues were whether the convictions were unsafe and whether the sentences were lawful.

Disposition. The conviction appeal was dismissed on all four grounds. The sentence appeal was allowed on both grounds.

1. Cross-admissibility. The direction that the jury could consider whether the defendant had a propensity to commit offences of the relevant nature was permissible. The jury had first been directed to consider each count separately and not to convict solely or mainly on propensity. The sexual offences against children could properly be treated as offences of the same nature or kind. The allegation of assault against the adult complainant was patently different and could not properly be used as support for the sexual allegations, or vice versa. The directions on the whole case adequately identified the permitted uses of other violence and sexual behaviour evidence.
2. Consent and safety. The particulars and directions on the historical rape count wrongly reflected the modern law. Under the Sexual Offences Act 1956, non-consent and knowledge or recklessness as to non-consent were ingredients of rape, and an honest belief in consent could avail the defendant even if unreasonable, as explained in Morgan [1976] AC 182. Applying the approach in Yeld [2021] EWCA Crim 866, however, the errors were not material. The real issue was whether the alleged sexual activity occurred. The defence was a straightforward denial, and there was no tenable evidential basis for consent or belief in consent. The conviction was therefore safe.
3. Abuse of process. On the court’s reading of R v J [2004] UKHL42, a prosecution under section 14(1) of the Sexual Offences Act 1956 may be abusive where, in substance, the conduct is only unlawful intercourse under section 6(1), so that the statutory time limit is avoided. The question is objective and turns on the nature of the prosecution case. Count 8 alleged no penetration, no intention to engage in intercourse and no act more than merely preparatory. The conduct was therefore not only an act or attempted act of unlawful intercourse, and the prosecution had a proper and rational basis.
4. Sentence. Section 278 of the Sentencing Act 2020 did not authorise a sentence exceeding the statutory maximum for the underlying offence. The sentence on count 4 was quashed and replaced by a special custodial sentence of 10 years, comprising nine years’ imprisonment and a one-year licence period. The concurrent sentence on count 9 was reduced to nine years. The surcharge order was quashed, and all other sentencing orders remained unchanged.

• Crown Court at Liverpool: DB was convicted on six counts on 26 January 2022 and sentenced on 12 April 2022.
• Court of Appeal (Criminal Division): The conviction appeal was dismissed. The sentence appeal was allowed, the count 4 and count 9 sentences were varied, and the surcharge order was quashed.