R v John Fowler

A conviction is not rendered unsafe by an alleged disclosure failure where the jury received the substance of the relevant information, the chronology excludes collusion, and the complaint is unsupported by any realistic basis for a concoction theory.

An error in describing a single incident as occurring on multiple occasions does not create an unsafe conviction where the case was plainly tried, directed and decided as a single-incident allegation. A finding of dangerousness under Sentencing Act 2020, section 280 requires an adequate evidential basis and reasons which explain how the statutory conclusion is reached. An internally inconsistent risk assessment, without that explanation, cannot sustain an extended sentence.

The applicant was convicted at Leicester Crown Court of two sexual assaults and three indecent assaults against three complainants. He received an extended sentence of 10 years, comprising an eight-year custodial term and a two-year extension on the lead count.

He renewed applications for leave to appeal against conviction and sentence. He alleged inadequate disclosure and unfairness concerning knowledge of other allegations, challenged a jury direction and an unamended multiple-incident count, and sought to adduce an email and one complainant’s previous convictions as fresh evidence. He also challenged the length of the sentence and the finding that he was dangerous.

The central questions were whether any matter created a lurking doubt about the convictions, and whether the statutory finding of dangerousness was justified.

1. The renewed application for leave to appeal against conviction was refused. The jury had not been misled about the limited knowledge that C2 and his mother had of another allegation. The material substance was before it, and the chronology demonstrated that the complainants could not have colluded to fabricate their accounts. The jury had also been directed even-handedly about the possible effect of C2’s knowledge.

2. No further direction was needed to state that the applicant did not have to prove concoction or a motive to lie. The burden and standard of proof directions were sufficient, and lack of motive was not a significant part of the prosecution case. The failure formally to amend count 2 from a multiple-incident allegation did not make the conviction unsafe. The jury, route to verdict and summing-up made clear that it concerned one incident; the numerical allegation affected sentence only: R v A [2015] EWCA Crim 177.

3. The proposed fresh evidence did not create a lurking doubt. The complainant’s previous convictions were unlikely to have been admissible as non-defendant bad-character evidence because they lacked substantial probative value or substantial importance in the context of the case. His complaint long pre-dated those convictions and his account had remained consistent. The email was admissible and capable of belief, but the jury already knew its gist.

4. Leave to appeal against sentence was granted and the appeal was allowed to the limited extent of quashing the extended sentence. The eight-year custodial term was justified by totality, the prolonged offending against three children, grooming, abuse of trust, the applicant’s use of his community standing, and the harm caused.

5. However, the finding of dangerousness under section 280 of the Sentencing Act 2020 was unjustified. The pre-sentence report contained an unresolved conflict between low calculated risks of reoffending and a later assessment of high risk of harm. The Recorder did not explain how the statutory conclusion was reached. The court substituted a determinate sentence of eight years on count 1, quashed the finding of dangerousness, and left the concurrent sentences on the remaining counts unchanged.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was refused. Leave to appeal against sentence was granted; the extended sentence and dangerousness finding were quashed and a determinate eight-year sentence was substituted.
• Crown Court at Leicester (Mr Recorder Auty): On 26 July 2023, the applicant was convicted of two sexual assaults and three indecent assaults. On 27 September 2023, he received an extended sentence of 10 years on the lead count, comprising eight years’ custody and a two-year extension.