R v Jagath Arachchige

Where an agreed factual premise is demonstrably inaccurate, a trial judge may invite the jury to consider a logically available inference from the evidence. The preferable course is to raise the issue with counsel in the jury’s absence. Failure to do so does not necessarily make the comment illegitimate.

The safety of a conviction depends on the whole context. Relevant matters include the importance of the point, the strength of the remaining evidence, and clear directions that factual judgment belongs to the jury alone. A sentence for planned kidnapping and sexual offending against intoxicated complainants is not manifestly excessive merely because the offending was effected by fraud rather than physical violence.

The applicant was convicted at the Crown Court at Bristol of two kidnappings, one sexual assault and one offence of committing an offence with intent to commit a sexual offence. The offences concerned two unrelated complainants on consecutive nights. He received a 12-year custodial term with a four-year extended licence for one kidnapping, with concurrent six-year terms on the remaining counts.

Following substantial delay and refusal by a single judge, he renewed applications for extensions of time and for leave to appeal conviction and sentence. The conviction challenge concerned two photographs of the first complainant. An agreed fact incorrectly gave both photographs the same creation time, and the trial judge invited the jury to consider whether that timing was accurate. The sentencing challenge alleged that the custodial term was manifestly excessive because the kidnappings were by fraud and did not involve violence or threats of violence.

1. The applications were refused. The court refused extensions of time of 910 days for conviction and 594 days for sentence. Since neither proposed appeal was reasonably arguable, refusal caused no prejudice and it was unnecessary to decide whether the explanations for delay were good reasons.
2. The agreed fact concerning the photographs’ timing was objectively incorrect. The photographs could not both have been taken at precisely the same moment because they showed different positions and surroundings. The recorded time instead related to viewing or automatic updating of cached images, rather than their original creation.
3. It would have been preferable for the trial judge to raise the inherent improbability of the agreed timing with counsel in the jury’s absence before addressing it in the summing-up. Nevertheless, the judge was entitled to explain the basis on which the jury might draw an inference about the photographs’ real timing. That was a logical question arising from the evidence and was not illegitimate judicial comment.
4. The conviction was not rendered unsafe. The photographs and their timing were tangential within a lengthy summing-up and a strong case based on evidence from two unconnected complainants making similar complaints on consecutive nights. The judge also properly directed the jury that any view expressed by him was not binding and that factual judgment was theirs alone. The renewed application for leave to appeal conviction was therefore refused.
5. The custodial term was not arguably manifestly excessive. The sentencing judge was entitled to treat as extremely serious the planned deception of two intoxicated women into entering the applicant’s car, their transport to isolated locations, and the sexual offending. The prior warning, prolonged incidents, photographs, victims’ harm, and the applicant’s lack of remorse and insight were aggravating features. The renewed application for leave to appeal sentence was refused.

• Court of Appeal (Criminal Division) — in [2025] EWCA Crim 363, refused the renewed applications for extensions of time and for leave to appeal conviction and sentence.
• Crown Court at Bristol — HHJ Mark Anthony Horton convicted the applicant of two kidnappings, sexual assault, and committing an offence with intent to commit a sexual offence; he imposed a 12-year custodial term with a four-year extended licence for the lead kidnapping and concurrent terms on the other counts.