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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 >> BVQ, R. v [2025] EWCA Crim 270 (25 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/270.html Cite as: [2025] EWCA Crim 270

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT SHEWSBURY
MR RECORDER JASON MACADAM T20227020

		Royal Courts of Justice Strand London WC2A 2LL
		25 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. In order to avoid indirect identification of the victim of these offences, it is necessary to anonymise the applicant. Consequently, we will refer to him by the cipher "BVQ" in this judgment.

3. On 16 May 2023, in the Crown Court at Shrewsbury before Mr Recorder MacAdam, the applicant pleaded guilty to three offences of possessing an indecent image of a child (counts 4, 5 and 6) and one count of possessing an extreme pornographic image (count 7). On 27 July 2023, the applicant was unanimously convicted of the following offences: attempted rape of a child under 13, contrary to section 1(1) of the Criminal Attempts Act 2003 (count 1); rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003, on one occasion (count 2) and on at least a further five occasions (count 3); and sexual assault of a child under 13, contrary to section 7(1) of the same Act (counts 8 to 19). As regards the latter counts, there were six pairs of counts, each pair reflecting a different form of sexual assault that was carried out. Each pair contained a single-incident count and a multiple-incident count stipulating that the conduct occurred on at least five occasions.

4. On 28 July 2023, before the same court, the applicant (then aged 49) was sentenced as follows: count 1, an extended determinate sentence of 15 years pursuant to section 279 of the Sentencing Act 2020, comprising a custodial sentence of 11 years and an extended licence period of 4 years; counts 2 and 3, an extended determinate sentence of 19 years, comprising a custodial sentence of 15 years and an extended licence period of 4 years; counts 4, 5 and 6, an extended determinate sentence of 4 years and 6 months, comprising a custodial sentence of 6 months and an extended licence period of 4 years; count 7, 6 months' imprisonment; counts 8 to 19, an extended determinate sentence of 17 years, comprising a custodial sentence of 13 years and an extended licence period of 4 years. All sentences were to run concurrently to each other. Accordingly, the total sentence was an extended determinate sentence of 19 years, comprising a custodial sentence of 15 years and an extended licence period of 4 years.

5. The applicant renews his application for leave to appeal against conviction following refusal by the single judge.

6. The applicant also applies for an extension of time of 430 days for leave to appeal against sentence in respect of counts 8 to 19 only, following a referral to the Full Court on the papers by the Registrar. For the avoidance of doubt, counts 8 to 19 were counts 4 to 15 on the trial indictment. We will refer to these counts in this judgment as "the sexual assault counts" as a shorthand.

The Material Facts

7. The complainant was born in December 2005. The applicant was her stepfather. He was in a relationship with her mother from approximately 2007 to 2017. The complainant described being sexually abused by the applicant from the age of 6 up until her 11th birthday. On her 11th birthday the complainant told her mother that she had been touched sexually by the applicant but she gave little detail. Her mother contacted the police some months later and an attempt was made to take a statement but the complainant was unwilling to speak to the police at that stage, later explaining that she had a fear of the applicant. In January 2020, when the complainant was 14 years old, she did speak to the police and described the detail and extent of the abuse. She said she felt able to do so after a friend had made a complaint to police.

8. The prosecution case was that whilst her mother was out of the house the applicant encouraged the complainant into his bedroom, locked the door and abused her. The abuse was frequent over a 5-year period. When she asked him to stop, he told her to "shut up" and he threatened to hurt her if she refused.

9. The sexual assaults, on specific occasions and on at least five multiple occasions, were of touching the complainant's breasts with his hands or fingers (the first pair of counts), sucking her breasts (the second pair of counts), rubbing his penis against her breasts to ejaculation and then rubbing his semen over her breasts (the third pair of counts), touching her vagina with his fingers (the fourth pair of counts), licking her vagina (the fifth pair of counts) and making the complainant touch his penis and masturbate him (the sixth pair of counts).

10. The applicant's electronic devices were seized on his arrest and examined: 166 indecent category A images; 370 category B images and 3602 category C images were found. A category B video of the claimant was also recovered on the hard drive. These were the four offences that the applicant pleaded guilty to. We refer to them as "the image offences" in this judgment.

11. To prove that the applicant had raped and sexually abused the complainant the prosecution relied on the following. Firstly, the ABE interview conducted with the complainant when she was 14 years old and her responses, aged 17, to questioning at the hearing held under section 28 of the Youth Justice and Criminal Evidence Act 1999. During her interview she described the nature and frequency of the sexual abuse. She described the applicant holding her head down and penetrating her mouth with his penis (counts 2 and 3). She said he had attempted to penetrate her vagina with his penis, which had hurt, but she was unsure whether any part of his penis had penetrated her (the attempt offence, count 1). Secondly, the evidence of her mother as a witness of first complaint to show the consistency of the disclosure and the credibility of the complainant. Thirdly, the evidence of a friend of the complainant to who partial disclosure was made as a witness of first complaint. Fourth, the applicant's previous convictions for making and possessing indecent images of children in 2003 and the images offences he had pleaded guilty to in 2023. It was said these demonstrated a propensity to commit offences of a similar nature and a sexual interest in children, pursuant to section 101(1)(d) of the Criminal Justice Act 2003.

12. The applicant was arrested on 28 June 2020. His laptop and a computer tower were seized and he was interviewed. He denied the allegations and suggested they had been made up by the complainant's mother, from whom he was separated and they were in the process of divorcing. He suggested the complainant was lying on her mother's behalf. At that stage, he said that no indecent images of children would be found on his electronic devices including the laptop and computer tower. Once the images had been recovered the applicant was re-interviewed. He exercised his right to silence and made "no comment" to questions asked.

13. The defence case at trial was that the complainant's allegations were entirely false. The evidence from her mother and from her friend was not independent, it was at best only evidence about what the complainant had told them and the lack of detail that she gave at that stage was highlighted. Moreover, it was said that the allegations had been instigated by the complainant's mother who had manipulated her daughter into giving a false account.

14. The applicant gave evidence at his trial. He denied he had any sexual interest in children and sought to explain the multiple images found on his electronic devices as a result of a fascination he had with the development of girls' breasts.

Grounds of appeal against conviction

15. The applicant acts in person in relation to his appeal against conviction. By letter dated 6 February 2025, the applicant wrote to the Court indicating he no longer wished to pursue his grounds of appeal against conviction. However, he has not returned the form that was sent to him (Form A) withdrawing his appeal. In the circumstances the appeal remains listed before us and it is necessary for us to address the grounds that were submitted. In summary, the applicant's grounds of appeal are as follows:

Ground 1. His legal team did not adduce evidence that his semen was yellow at the time, due to medication he was taking. This was vital evidence in showing his innocence.

Ground 2. His counsel did not question the prosecution's witnesses to demonstrate their lack of integrity.

Ground 3. He was not shown the complainant's first video interview until his trial. Ground 4. His solicitors did not adequately represent him and ignored a great deal of evidence that would have been beneficial in proving his innocence.

Ground 5. His counsel did not re-examine him so as to allow him to address the points raised by the prosecution, in particular as to his reason for downloading the images found on his devices.

Ground 6. He only had one meeting with his barrister outside of court and none with his solicitors and they did not adequately prepare him for his trial.

Ground 7. As a result of his health conditions he had difficulty with concentration, memory and processing information. Yet this was not taken into account during the trial and, as a result, it was difficult for him to keep up with what was happening.

Ground 8. His counsel was late every day to court, leaving hardly any time to discuss the case before having to enter the courtroom.

16. The applicant waived privilege and his trial counsel (Elizabeth Power) responded to the applicant's points in a letter dated 15 November 2023. By an email sent on 26 November 2023, his former solicitors agreed with counsel's comments. In addition to addressing the eight specific grounds, Ms Power referred to the weight of evidence there was against the applicant. She said that the complainant was "very compelling", whereas the applicant's evidence "was inconsistent and at times, verged on, frankly, the preposterous." She notes that the applicant's explanation for why he had so many indecent images of children on his devices was simply not credible. The images downloaded were of young female children in all sorts of poses. There was no specific focus upon breasts. Further, the video footage he had retained of the complainant was focused on her crotch area.

17. In relation to the specific grounds, Ms Power's responses were as follows:

Ground 1. Given the allegation related to a time when the complainant was between 6 to 11 years of age and given she had provided her account some years later as a 14-year-old, details such as the colour of the applicant's semen was unlikely to significantly undermine her account. Further, there was no medical evidence that supported the applicant's account as to the colour of his semen at the time and colour is, to some extent, a matter of interpretation.

Ground 2. The complainant and her mother were questioned in an appropriate and professional way. There was no evidential basis for questioning her mother about her relationships after the applicant.

Ground 3. There was only one recorded interview with the complainant, her ABE interview on 19 June 2020. The applicant had an opportunity to consider and comment upon this.

Ground 4. The applicant's case was pursued with professionalism. His medical notes were obtained to see if anything could be made of them as to his various medical conditions and a medical report was obtained to consider his mental state.

Ground 5. The applicant gave his explanation as to why he was in possession of many sexual images of young females when he gave his evidence-in-chief. When he was cross-examined, the prosecution challenged the credibility of this explanation and the applicant thus had another chance to put forward his account. His evidence on this point was weak and it would not have been in his interest to draw further attention to his discredited account by returning to it in re-examination.

Ground 6. She had in fact met with the applicant at each of his appearances before the Crown Court and had a conference with him at his solicitor's office to prepare a Defence Statement.

Ground 7. At no time during the hearing did the applicant suggest that he was overwhelmed with the proceedings or that he needed further time and more breaks in the evidence. He was fully engaged with the process. On the one occasion when he indicated feeling unwell, his counsel instigated the court rising early for the day.

Ground 8. It is untrue that she was late. Each morning she conducted a conference with the applicant before court started. Inevitably there were times when she also had to liaise with the prosecution.

18. The Respondent's Notice also takes issue with the grounds of appeal, emphasising that the evidenced established a strong case against the applicant. By the nature of their contents the respondent is unable to comment on some of the grounds of appeal but the Notice includes the following observations. There was no evidence as to the precise colour of the semen seen by the complainant other than a general description of "white stuff". The cross-examination of the complainant and mother was appropriate and competent and defence counsel is extremely experienced and she performed her duty to her client admirably.

Appeal against conviction, discussion and conclusions

19. We do not consider there is arguable merit in any of the applicant's grounds or that his convictions are arguably unsafe.

20. We note that no complaint is made about any aspect of the judge's summing-up or his legal directions to the jury.

21. The case against the applicant was a powerful one for the reasons we have already identified.

22. Taking each of the grounds of appeal in turn.

Ground 1. Pursuit of the point about the colour of the applicant's semen would not have assisted the applicant for the reasons identified by his former counsel. More generally, we observe that if the complainant was fabricating her account to please her mother, it is surprising that she was uncertain and equivocal about whether penetration had taken place in relation to the attempt allegation that was the subject of count 1.

Ground 2. As the Recorder rightly explained to the jury in his summing-up, it was necessary for the complainant to be questioned in a way that was appropriate to her age. His summary of her cross-examination indicates that all relevant matters were properly explored by Ms Power. Equally, the Recorder's summary of the cross-examination of her mother indicates that she was properly questioned and challenged by the applicant's counsel as well. The applicant's complaint was not voiced during the trial itself and it is refuted by counsel who appeared for the prosecution, as well as by Ms Power.

Ground 3. The applicant's response to Ms Power's letter (which was received by the Court on 20 December 2023), disputes that he saw the recording of the complainant's ABE interview before the trial. In any event, he accepts that he saw a transcript. We note that the applicant does not suggest anything specific that he would have wanted to raise had he seen the video at an earlier juncture and it is clear from Ms Power's account that he was given an appropriate opportunity to convey his instructions to his legal team.

Count 4. This contention is entirely non-specific and, as such, it does not add anything to the applicant's other grounds.

Count 5. We agree with Ms Power's assessment. To have re-examined the applicant about why he had downloaded and retained the indecent images would only have drawn further attention to what was a very weak aspect of his case.

Grounds 6 – 8. We accept Ms Power's account. It therefore follows that the applicant's account of having had a limited opportunity to meet with his counsel, of struggling to keep up with the proceedings and of his counsel consistently arriving late during the trial is simply untrue. We are quite satisfied that Ms Power would have asked for more time to speak with the applicant and/or for more breaks in the proceedings if this had been necessary and/or it had been raised with her at the time.

23. Accordingly, we refuse the application for leave to appeal against conviction.

24. For the avoidance of doubt, an earlier bail application made by the applicant with a view to obtaining additional unspecified evidence to support his appeal is also refused.

The Sentencing Decision

25. As the application to appeal in relation to sentence only concerns the sexual assault counts, we can summarise the Recorder's sentencing remarks relatively briefly.

26. The Recorder was satisfied that the applicant had engaged in a course of paedophilic offending over many years, during which he had abused the complainant whenever he got the chance to do so. He describes how the victim had been "very, very deeply" affected by the offending and had experienced acute psychological symptoms. The counts 2 and 3 rape of a child under 13 offences were taken as the lead offences. Culpability was placed in category A, given the abuse of trust; and harm was assessed at level 1, given the effect on the complainant and the frequency of the offending over a long period of time. The starting point for those offences was 16 years, with a range of 13 - 19 years. When the Recorder came to identify the starting point for the sexual assault offences, he erroneously referred to the starting point for those offences as also being 16 years with a range of 13 - 19 years. The correct starting point for an A1 offence of sexually assaulting a child under 13 years would have been 6 years, with a range of 4 - 9 years.

27. The Recorder identified the applicant's previous convictions and the images offences as aggravating factors. He concluded the applicant presented a high risk of harm to children and to prepubescent children in particular, as he was a serial sexual offender with entrenched paedophilic tendencies who, given the opportunity, would offend continually. He considered that a determinate sentence alone was insufficient to manage the risk that the applicant presented to the public of serious harm and that an extended sentence was the only available sentence that would provide the public with the required degree of protection.

28. In relation to counts 2 and 3, in light of his findings as to the applicant's dangerousness, the Recorder imposed custodial periods of 15 years and extended licence periods of 4 years, making extended sentences of 19 years' duration in total. In respect of the sexual assault offences, the Recorder imposed concurrent sentences of 17 years, comprising custodial sentences of 13 years and extended licence periods of 4 years. (The other concurrent sentences were as we have indicated earlier.)

Ground of appeal against sentence

29. The sole ground of appeal was prepared by counsel (Abigail Nixon) following a representation order granted by the Registrar for these purposes, once it was appreciated that an apparently unlawful sentence had been imposed. The ground contends that the sentences passed on each of the sexual assault offences were unlawful as they exceeded the statutory maximum sentence of 14 years.

30. The Respondent's Notice concedes that the sentences imposed on counts 8 to 19 were unlawful for this reason. Counsel apologises for not having drawn this to the Recorder's attention when he sentenced the applicant.

Extension of time

31. Given that the application for leave to appeal against sentence is well-founded, we will grant the 430-day extension of time that is sought. We accept that the applicant could not have been expected to identify the unlawful aspect of his sentence himself.

Appeal against sentence, discussion and conclusion

32. The term of an extended sentence of imprisonment imposed pursuant to section 254 of the Sentencing Act 2020 must not exceed the maximum term of imprisonment with which the offence is punishable in a case of a person aged 21 or over: see section 254(5). The maximum sentence available for an offence contrary to section 7 of the Sexual Offences Act 2003 is 14 years.

33. Accordingly, the extended sentences of 17 years imposed by the Recorder in relation to the sexual assault offences (counts 8 to 19) exceeded the statutory maximum and were unlawful. We therefore grant leave to appeal and quash the sentences imposed on these counts.

34. As we have indicated, under the offence guideline for sexual assault of a child under 13, the correct starting point for a single A1 offence is 6 years, with an offence range of 4 - 9 years. Given the aggravating features - the applicant's previous convictions, the images offences, the number of offences and the fact that the offending was committed in the home, a substantial uplift to the starting point figure would be warranted. However, we also bear in mind totality and the fact that counts 2 and 3 were treated as the lead offences.

35. In all the circumstances, we impose extended determinate sentences of 12 years pursuant to section 279 of the Sentencing Act 2020 in respect of each of counts 8 to 19, comprising a custodial term in each instance of 8 years and an extended licence period of 4 years. These sentences are concurrent to each other and concurrent to the other sentences imposed by the Recorder, which remain undisturbed.

36. Accordingly, the overall length of the applicant's sentence is not affected. Whilst there have been no other grounds of appeal raised, we confirm that, in our view, the other sentences imposed were entirely appropriate given that the applicant's offending entailed a campaign of rape and serious sexual abuse over a 5-year period on a child under the age of 13, undertaken in breach of trust and leaving the victim severely affected.