R v Ben Fitton

The applications for leave to appeal against conviction and sentence were refused. Bad-character evidence may be relevant to a controlling or coercive behaviour charge where it can show a propensity for such conduct, even though it does not prove every element of the offence. A specific direction on the mental element of a section 20 offence under the Offences Against the Person Act 1861 is unnecessary where a forcible assault would ordinarily be recognised as likely to cause physical harm and the defence is denial of the act. Jury directions on consent must be read as a whole. Different verdicts on sexual acts arising from one occasion are not inconsistent where the evidence permits a rational distinction. An ordinary-language direction on intentional strangulation may suffice. A sentence may stand where harm, totality and dangerousness have been properly assessed.

Following a trial at the Crown Court at Manchester, the applicant was convicted of controlling or coercive behaviour, unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861, oral and vaginal rape, and non-fatal strangulation. He received an extended sentence of 21 years. He sought leave to appeal conviction on grounds concerning bad-character evidence, the mental element of unlawful wounding, consent directions, allegedly inconsistent verdicts and strangulation directions. He also challenged the rape sentencing starting points, totality assessment and dangerousness finding. The central questions were whether the trial directions and verdicts disclosed arguable error and whether the sentence was arguably unlawful or manifestly excessive.

Disposition. The court granted a short extension of time and permission to amend the grounds. It refused leave to appeal against both conviction and sentence, finding no arguable ground individually or cumulatively.

1. Bad character. Evidence admitted under section 101(1)(g) of the Criminal Justice Act 2003 could be relevant to the controlling or coercive behaviour count. Conduct capable of showing a propensity for controlling or coercive behaviour was material to an important matter in issue under section 101(1)(d), even though it did not establish every element of the offence. The directions properly confined the evidence to permissible use, warned against using it as proof of propensity for physical or sexual offences, and explained that previous convictions did not require a conclusion that the defendant was lying or guilty. [17]–[27]
2. Section 20 wounding. The court accepted the principle stated in R v Mowatt [1967] EWCA Crim 1 and held that no specific direction on maliciously was required where the prosecution case was a forceful push likely to cause a fall and some physical harm, and the defence was that the complainant had fallen accidentally. [29]–[30]
3. Consent and strangulation directions. Consent directions and the route to verdict were read as a whole. The impugned passage did not create confusion because the jury were clearly directed on lack of consent and absence of a reasonable belief in consent. For the strangulation count, intentional strangulation was an ordinary concept, and the stark factual alternatives meant no further direction on intention or a justification based on preventing the complainant harming herself was required. [31]–[38], [48]–[52]
4. Verdicts. The burden on an appellant alleging inconsistency was to show that no reasonable jury could have reached the verdicts. Convictions and acquittals on different sexual acts from the same occasion were rationally open where the evidence supplied a basis for distinction, including uncertainty about one allegation and the jury’s careful examination of the counts. [39]–[47]
5. Sentence. The judge correctly categorised the offences. Vulnerability, severe psychological harm, and violence or threats beyond what was inherent in rape provided multiple category 2 harm factors, so the rape sentences could have been placed higher within the relevant ranges. The judge complied with totality by standing back and assessing the overall seriousness of the prolonged domestic offending; the final custodial term was not manifestly excessive. The dangerousness finding was supported by the offender’s attitude towards women, paranoia and jealousy, the pre-sentence assessment, medication non-compliance and the offending circumstances. An extended sentence remained available despite the custodial term’s length. [54]–[64]

• Crown Court at Manchester: On 27 September 2024, after trial before HHJ Horgan, the applicant was convicted of controlling or coercive behaviour, unlawful wounding, rape, non-fatal strangulation and rape. An extended sentence of 21 years was imposed, comprising 18 years’ custody and a three-year extended licence period.
• Court of Appeal (Criminal Division): An earlier full court adjourned the application and directed fresh counsel after the applicant sought new grounds. The present court granted an extension of time and permission to amend the grounds, then refused leave to appeal conviction and sentence.