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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 >> AWG, R. v [2025] EWCA Crim 564 (11 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/564.html Cite as: [2025] EWCA Crim 564

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
(HHJ LAZARUS) [T20217335]

		Royal Courts of Justice Strand London WC2A 2LL
		11 April 2025

LADY JUSTICE MACUR:

1. This is a case in which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Under those provisions, no matter relating to the victim shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as a victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. Consequently, as a result of such restriction, this case is listed under the randomly assigned initials "AWG". There will be no reference to the name of the applicant to avoid jigsaw identification.
2. On 5 December 2024, the applicant was convicted of two offences of assault of a child under 13 by penetration, one offence of sexual assault of a child and one offence of causing a child under 13 to engage in sexual activity contrary to sections 6, 7 and 8(1) of the Sexual Offences Act 2003 respectively, and two offences of making indecent photographs of a child contrary to section 1(1) of the Protection of Children Act 1978. He is yet to be sentenced in circumstances that will become clear hereafter. His application for leave to appeal conviction was referred to the Full Court by the Registrar. In summary, the judge fell into error when directing the jury on three of the counts on the indictment which were framed as specimen counts charging the applicant with offences of assault by digital penetration of C's vagina, assault by digital penetration of C's anus and sexual assault by rubbing his penis against C "on at least five occasions"; that is, the judge directed the jury that to convict the defendant they must be sure that the offences had occurred on "at least one occasion". This error was only discovered after conviction and prior to sentencing.

The Facts

3. The applicant, who was a counsellor, met "CM" in 2018. She had a 5-year-old daughter ("C") who is the complainant. The applicant would stay with CM overnight. In the period April to June 2020, C made certain disclosures to her paternal grandmother and subsequently to her mother, of what amounted to sexual misconduct by the applicant towards her. CM informed the police on 17 June. The applicant was arrested on 30 June 2020. On examination of his electronic devices the indecent photographs which formed the basis of three counts on the indictment (see above) were recovered. C was video interviewed on 12 July 2020. Her responses formed the basis of the first four counts on the indictment and the ABE video interviews were played as her examination-in-chief.
4. C claimed the applicant had touched her in her "privacy bits". He had put his finger up her "... thing every time he was with her." C would be in her bedroom or in her mummy's bedroom, in the bathroom or anywhere in the house, "he would always touch me". Her mother would normally be cooking breakfast or in the shower or the toilet at the time. The applicant hurt C "probably here when he was poking his finger up me", pointing to the front of her shorts with her right hand "and here", then pointing to the back of her shorts."
5. C was 8 years old when she was cross-examined in accordance with the provisions of section 28 of the Youth Justice and Criminal Evidence Act 1999. This pre-recorded cross-examination was played at trial. Her recall during that cross-examination was imprecise on various points but did not undermine the primary allegations.
6. The applicant made a blanket denial of the offences of sexual misconduct towards C in counts 1 to 4. He said he had no sexual interest in C or any other child. He did accept that he helped with C's care, including bathing her when needed, but said that this was "rare" and only when specifically asked. He said that there was little to no opportunity to be alone with C in the household. C would neither have seen nor touched his penis. He had first become aware of the allegations on 30 June 2020, when he had been arrested. In respect of the images in count 5, he said, related to one or possibly two images of the vaginal area of C, which had been sent by one of her grandmother's to ask about rashes or to document injuries subsequent to C visiting her father. He did not recall seeing the image of the unknown teenager which formed the basis of count 6 and he had not downloaded it. He said he had no sexual interest in young females. He did accept that he had recorded the video image in count 7 which the advice on appeal describes as:

"The moving image... showed the back of an adult hand moving apart the knees of [C] so that her vagina was visible. You could hear what was agreed to be the Applicant's voice in the background but not what was said. His account was that he had seen a flash of something red as [C] had come out of the bath and was checking for injury. The video was only 8 seconds long as he satisfied himself there was no injury but just some red thread. Although there was no direction for cross admissibility of counts, the Crown suggested that the jury should see the images in light of their findings in respect of the sexual assaults on [C]."

7. The judge provided counsel with his written directions and 'Route to Verdict' in advance of delivering what would be a split summing-up. When summing-up the case to the jury the judge gave unremarkable directions of the ingredients of each of the respective sexual assaults alleged but went on to say:

"So, first of all, count 1, assault of a child under 13 by penetration. There's just one question for you to answer: 'Are you sure that the defendant placed at least part of his finger passed [C's] vaginal lips on at least one occasion?' If you are sure that the defendant did this, your verdict is one of guilty on count 1 and you go on to count 2…

Count 2 is exactly the same, but on this question we're asking you to decide whether you're sure that the defendant placed at least part of his finger inside [C's] anus on at least one occasion. And again if you are sure that he did this, then your verdict must be one of guilty, and if you are not sure that he did this, your verdict is one of not guilty.

Count 3 is a different question but again one straightforward factual question: 'Are you sure that the defendant rubbed his penis against [C] on at least one occasion?' If you are sure that the defendant did this, your verdict is one of guilty on count 3 and you go on to count 4..."

Consequently, as indicated above, the direction in relation to the first three counts did not reflect that they were charged as specimen counts occurring on "at least five occasions".

8. Mr Fishwick, who appears on behalf of the applicant, asserts that the judge's misdirection to the jury, unnoticed by either himself or prosecution counsel before it was too late, leaves a real "lurking doubt" as to the safety of all of the convictions. Nevertheless, in writing he realistically concedes, as long-established jurisprudence makes clear, that a misdirection is not necessarily fatal to conviction if "on the whole of the facts and with a correct direction the only reasonable and proper verdict would have been one of guilty." Further, that the failure of counsel to comment on the judge's draft directions when given the opportunity to do so is likely to influence the assessment of the significance of the alleged efficiency. However, he submits that it cannot be said that the only reasonable verdict of the jury was one of guilty in respect of the specimen offences and that even though there was no similar error in the directions given in relation to the specific offences charged, the verdicts were necessarily "coloured by the verdicts were there was a material misdirection."
9. That is, he submits that the greater number of incidents that the Prosecution alleged to have happened would have meant the greater chance of someone catching the applicant 'in the act'. If the jury had been told that they had to find that the offending behaviour happened on at least five occasions, they would have found it much more difficult to be sure on each count. The jury would not have been able thereafter to dissociate their decision in respects of count 1 to 3 from their decision in respect of count 4, and inevitably the jury's decision in respect of counts 5 and 7 must have been coloured by their decisions in respect of the other counts.
10. Asked to explain the basis of this submission, Mr Fishwick indicated that the manner in which he 'ran' the case was predicated upon the framing of the indictment; that is on the basis that the jury could not be sure that in such confined circumstances in which the applicant, CM and C resided that there would not have been the opportunity on at least 15 opportunities, plus the one occasion to which count 4 referred, for these offences to have occurred unnoticed by CM. If the offences on the indictment been framed as specific counts, he would have challenged CM as being motivated by revenge in reporting C as alleging she had been sexually assaulted by the applicant.
11. Ms Hirst, on behalf of the prosecution, does not accept that the evidence of frequency of offending was weak, or that the error in the summing-up renders the convictions unsafe. She submits that the verdicts indicate that the jury were satisfied that the applicant had behaved in the way alleged on at least one occasion; the convictions on the specific counts indicate that they had rejected the applicant's evidence full stop. The result of the error of the judge is to the benefit of the applicant in sentencing.

Discussion

12. There is no issue but that subject to issues of credibility and reliability of recall, C's evidence-in-chief founded a legitimate basis of the trial indictment. Ms Hirst would also submit that the evidence of the indecent photographs represented in count 5 and the video represented in count 7 also reflected this frequency.
13. There was realistically no submission of no case to answer at the close of the prosecution case. Nor is there any issue as to the way the judge summed-up C's evidence to the jury. The only issue, as we indicate above, is that judge incorrectly defined the parameters of the first three counts on the indictment in indicating that the jury should be sure that they only occurred on at least one occasion rather than on at least five.
14. Realistically, Mr Fishwick has made no submissions regarding the failure of the judge to direct the jury that they must all agree that the offence occurred on "at least one" and the same occasion in the course of conduct that C alleged. It is Ms Hirst who cites R v Hobson [2013] EWCA Crim 819 to distinguish it. Hobson concerns specific allegations regarding two separate incidents in two different locations, "wrapped up together in the context of a specimen count", whereas the nature of the multiple-count allegations in this case were not specifically anchored to any specific occasion or location. Paragraph 23 and 28 of the judgment in Hobson recognises the distinction:

"23 ... in most cases where a specimen count is relied on, it is enough for the judge to tell the jury, as the judge did in this case, that they may convict if they are sure that the offence has been committed at least once. Where the complainant cannot particularise any specific incident and merely alleges a pattern of similar conduct, the question for the jury will be whether they are sure that the account of the complainant is reliable. There will be no room for the jury to focus on one incident rather than another because no single occasion is sufficiently distinct, and it would be meaningless and unhelpful to tell the jury that they had to be sure in relation to the same incident."

…

"28. ... the critical question is whether the evidence before the jury was such that there was a realistic possibility that a reasonable jury could have reached its verdict in respect of a specimen count by focusing on different occasions. If so, the summing-up would be defective and the convictions would be unsafe without a direction that the jury had to be sure with respect to the same occasion."

15. Mr Fishwick's 'probability' arguments were and are jury points, and were obviously rejected. There is no question that C's evidence would have been edited. We do not understand why Mr Fishwick would consider it imprudent to challenge CM as to her motivation , if those were his instructions, whether the indictment charged "at least five occasions" or just one.
16. In summary, there is no reason to doubt the integrity of the jury verdicts in respect of counts 1 to 3 in the context of the judge's directions. However, sentencing must proceed on the basis that the verdicts relates to one occasion of sexual assault in each of the counts 1 to 3 and not "at least five".
17. Therefore, we reject the application for permission to appeal and remit the case back to the trial judge for sentence accordingly.