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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McMahon, R. v [2025] EWCA Crim 269 (26 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/269.html Cite as: [2025] EWCA Crim 269

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE G BRYNE CMP No: 5E90753622

(Sexual Offences (Amendment) Act 1992 applies)

		Royal Courts of Justice Strand London WC2A 2LL
		26 February 2025

MRS JUSTICE HEATHER WILLIAMS:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

2. On 19 October 2023 in the Crown Court at Liverpool before His Honour Judge Byrne ("the Judge") the Applicant was convicted of two counts of rape (counts 1 and 2 on the indictment). He was acquitted on count 3, an allegation of anal rape.

3. On 22 November 2023 before the same court and constitution, and pursuant to section 279 of the Sentencing Act 2020, the Applicant (then aged 32) was sentenced to an extended sentence of imprisonment of 21 years, comprising a custodial term of 18 years and an extended licence period of 3 years on count 1, and a concurrent extended sentence of 15 years, comprising a custodial term of 12 years and an extended licence period of 3 years on count 2.

4. The Applicant acts in person. He renews his application for an extension of time (4 days) in respect of leave to appeal against conviction following refusal by the Single Judge.

The material circumstances

5. The complainant had been in a relationship with the Applicant. She described the count 1 incident as occurring after he had assaulted her when she complained about him going out with another woman. The complainant said that the Applicant then wanted sex, and she made it clear she was not interested and was in serious pain. However, the Applicant kept persisting and ended up having vaginal sex with the complainant despite her not wanting to.

6. As regards count 2, the complainant said she was staying in a hostel and the Applicant was constantly messaging her on her phone. She asked staff for advice, and although she asked the Applicant to leave her alone, his messages carried on. He kept asking her to meet him, and eventually she did. They ended up at a friend's apartment on the bed. The complainant said she did not want sex but the Applicant kept trying it on. The complainant told him to "Stop it" but he carried on, continuing after she said firmly, "You don't even respect me. You nearly killed me a few days ago." The complainant tried to push him away, but the Applicant continued and raped her. She explained in cross-examination that "he wasn't really giving me much of a choice and if I don't, he kicks off and screams and shouts and hits me".

7. The prosecution case primarily relied upon the complainant's evidence and also evidence from, amongst others, a link worker who assisted vulnerable women, and a domestic abuse case officer, who described the complainant's behaviour and her interactions with the Applicant.

8. A list of Agreed Facts detailed injuries sustained by the complainant and treatment she had received, along with details of messages exchanged between the complainant and the Applicant.

9. The defence case was that none of the allegations were true and that all sexual activity was entirely consensual.

10. The Applicant was originally tried in January 2023. The jury were divided on the three rape charges but convicted him of a section 18 assault, controlling and coercive behaviour, and a section 47 assault, all in respect of the same complainant.

11. A number of notes were sent by the jury during the early part of the retrial.

• In the first note (sent just after the jury were sworn) two of the jurors indicated that they did not feel mentally strong enough to deal with the case, having sat on a serious sex trial the week before. However, they also said they would follow their oath when trying the defendant ("Note 1").

• A juror who lived in the area around Prescott sent a note expressing fear of repercussions from the Applicant and fear for the safety of herself, her husband and her colleagues. She indicated that she had not been able to concentrate on the evidence (the playing of the complainant's ABE interview) once she had heard that part of the events took place in Prescott ("Note 2").

• One juror sent a note asking whether the Applicant had any links with Huyton ("Note 3").

• Jurors sent a note saying they felt intimidated by the Applicant staring at them from the dock ("Note 4").

12. In response to Note 2, the Judge reassured the juror that both the Applicant and the complainant were normally resident in Manchester, and he gave the juror the opportunity to read the transcript of the material part of the ABE interview for the period after she said she had lost concentration.

13. The Judge was also able to reassure the juror who sent Note 3 that the Applicant had no links to Huyton.

14. After Note 4, the Applicant's counsel applied to discharge the jury on the basis that the Applicant now had no confidence that they would try him fairly according to the evidence as he believed the jury were prejudiced against him. The application was opposed by counsel for the prosecution, Mr Christie, who pointed out that when the jury had sent the earlier notes they had been reassured by the Judge and had indicated that they were happy with those reassurances. Mr Christie also observed that the Applicant had been warned about his conduct "on virtually every occasion that he appears in this court" but had invariably failed to heed the warnings. He said that there was no guarantee that his behaviour would improve before any other jury.

15. The Judge rejected the application to discharge the jury, saying as follows:

"In this case the defendant's behaviour (and this is not a criticism of him), but his behaviour has been at times somewhat volatile. He struggles to keep a poker face, if I can put it that way, and is very expressive to the extent that the jury may have misinterpreted his body language. I can deal with that now when they come into court by telling them not to draw any inferences whatsoever from it and I am satisfied that Mr McMahon had no intention to intimidate the jury by his actions yesterday and I will tell the jury that.

As far as the notes are concerned, well, the principal concern of one juror was that she wanted to make absolutely sure she did not know anybody in the case. Those concerns have now evaporated. Another juror's attention dipped towards the end of one the ABEs, but she was given an opportunity to refresh her memory by reading the last few pages of the transcript. That is no longer an issue.

I am satisfied there is nothing that leads the court to believe that any of these jurors cannot keep to their oaths and the application is therefore dismissed."

16. The Judge duly directed the jury as he had foreshadowed. He also explained to the jury that the Applicant was leaning to the side so he could hear what was being said through the gaps of the glass in the dock.

The ground of appeal

17. The Applicant submits his conviction is unsafe as the Judge was wrong not to discharge the jury when it was evident that they were exhibiting prejudice and animosity towards him, as this undoubtedly would have affected their decision-making process. In the circumstances they could not be trusted to give their verdicts according to the evidence.

18. The Respondent's Notice indicates that when the complainant was cross-examined pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1999, the Applicant was abusive and aggressive to her almost from the start. To the Applicant's advantage, the Judge paused the recording before asking the Applicant to calm down. In the event he continued to be abusive. He went back to the cells but before doing so he made a direct threat to the life of the complainant. The Respondent's Notice continues:

"This was the first in a series of interruptions which continued throughout both the trial and the retrial in which the Applicant could not contain himself from commenting audibly about the evidence."

The Notice observes that the direction given to the jury after the dismissal application was rejected "may be regarded as an exceptionally generous interpretation of the Applicant's behaviour when [he] instructed the jury to pay no attention to his actions". It is also pointed out that the jury indicated their satisfaction with the way that their notes had been dealt with.

Discussion and conclusion

19. As we have observed, the application for leave to appeal was submitted 4 days late. No explanation has been provided for this delay. Moreover, for the reasons that we will explain, the ground of appeal is unarguable.

20. When refusing leave the Single Judge observed:

"Your sole ground of appeal is that the Judge erred in not discharging the jury because of their prejudice and animosity to you. However, there is no evidence to support that submission. The Crown's Response to your Grounds of Appeal ... describes a challenging trial for the jury, with you exhibiting inappropriate aggression throughout. But there is no evidence to suggest that the jury took into account anything other than the evidence they heard. Indeed, they acquitted you of the charge of anal rape which shows that they considered the charges and the evidence against you with proper care and without prejudice or animosity."

We agree.

21. We turn to the specific jury notes.

• No further concern was raised by the jurors who had sent Note 1 at the outset of the trial. There is nothing to suggest that they did other than listen to the evidence carefully and evaluate it conscientiously. As the Single Judge pointed out, the Applicant's acquittal on count 3 underscores the care that the jury took with this matter and the fair way in which they approached their task.

• The jurors who sent Notes 2 and 3 were reassured by the Judge's response, which indicated that the Applicant was not based in Prescott or Huyton.

• As regards Note 4, we accept (as the Respondent's Notice indicates) that the Judge provided the jury with a generous interpretation of the Applicant's conduct and quite properly directed them to ignore his actions in the dock. As we understand it, nothing further was raised by the jury after this point. The Applicant's trial counsel, Ms Bennett, did not suggest that this aspect needed to be revisited in the Judge's summing-up or in the legal directions to the jury.

22. We consider that the Judge acted properly in how he dealt with the notes from the jury and in dismissing the application to discharge the jury. There is nothing to suggest that the jury did other than comply with their oaths. The conviction is not arguably unsafe. Accordingly, we refuse the extension of time sought and we refuse leave to appeal against conviction.

23. When refusing leave, the Single Judge observed that the ground of appeal lacked any legal merit and he indicated that the Full Court should consider making a loss of time order in this case if the application was renewed. The Applicant has renewed his application without making any representations as to why the Full Court should not make a loss of time order. He has chosen to pursue a totally unmeritorious application which has wasted the time of the court. Such applications hamper the court's ability to process meritorious applications in a timely fashion. In the circumstances, pursuant to the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985, we make such a direction for a period of 28 days.