R v Lloyd Sands

Evidence of past sexual behaviour and controlling conduct may be admissible under the Criminal Justice Act 2003 as part of relationship history relevant to consent or reasonable belief in consent. Where admitted under section 98, it need not be treated as bad character evidence under section 101(1). Further abstract directions are unnecessary where the summing-up clearly links the evidence to the specific issue for which it was admitted. Appellate intervention on directions is limited and fact-sensitive. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, evidence of prior sexual behaviour may be confined to what is necessary for a fair trial. Severe psychological harm may be established by the trial judge’s observations without expert evidence.

Following a trial at Canterbury Crown Court, the appellant was convicted of rape, attempted rape and voyeurism, and acquitted of sexual assault. He received an overall sentence of 12 years’ imprisonment.

With permission, he appealed against conviction on grounds concerning directions about evidence of his past conduct and renewed an application concerning evidence of the complainant’s sexual behaviour. He also appealed against sentence. The central issues were whether the jury required additional directions concerning evidence admitted under section 98 of the Criminal Justice Act 2003, whether the judge properly applied section 41 of the Youth Justice and Criminal Evidence Act 1999, and whether the sentence was manifestly excessive.

1. Disposition. The renewed application for leave to appeal against conviction under ground 5 was refused. The appeal against conviction and the appeal against sentence were dismissed.
2. Evidence under section 98. The stalking conviction, its circumstances and the relevant material in the complainant’s interviews were properly admissible under section 98 of the Criminal Justice Act 2003. They formed part of the relationship history and were relevant to consent and reasonable belief in consent. None of the material required treatment as bad character evidence under section 101(1).
3. Jury directions. The need for additional directions about section 98 evidence is fact-sensitive. The trial judge’s feel for the case and its context are important, and appellate intervention is limited where no error of legal principle is shown: R v Hunter [2015] EWCA Crim 631; [2015] 1 WLR 5367. Here, the evidence was relied on by both parties on the self-contained issues of consent and reasonable belief. The judge clearly explained submission, reluctant consent, the relationship history and the possible significance of the safe word. No further abstract direction was required. R v MA [2019] EWCA Crim 178 concerned materially different circumstances involving prominent evidence of physical violence and was distinguished. Even if a further direction had been desirable, its absence could not have rendered the convictions unsafe in light of the videos and messages.
4. Section 41 applications. The judge properly exercised her judgment under section 41. She was entitled to exclude the full WhatsApp exchanges and permit only a focused question sufficient to rebut or explain the complainant’s evidence. The application of the correct section 41 principles is essentially a matter of judgment: R v Wilson [2024] EWCA Crim 1514; [2025] 1 WLR 2865. No arguable error was shown.
5. Sentence. A pre-sentence report was unnecessary. Severe psychological harm could be based on the trial judge’s observations of the complainant without expert evidence. The category 2A assessment, 10-year starting point, uplift for the concurrent offences and consideration of aggravating and mitigating features were not manifestly excessive. The overall sentence of 12 years therefore stood.

1. Court of Appeal (Criminal Division): refused the renewed application for leave under ground 5 and dismissed the appeals against conviction and sentence.
2. Crown Court at Canterbury: convicted the appellant of rape, attempted rape and voyeurism on 23 August 2024, acquitted him of sexual assault, and imposed an overall sentence of 12 years’ imprisonment.