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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 >> Fowler, R. v [2025] EWCA Crim 586 (15 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/586.html Cite as: [2025] EWCA Crim 586

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LEICESTER
(MR RECORDER AUTY) [T20220235]

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

MRS JUSTICE STACEY:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. 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. The applicant renews his application for an extension of time and for leave to appeal against both conviction and sentence following refusal by the Single Judge. He seeks leave to adduce fresh evidence consisting of an email from the mother of one of the complainants to the officer in the case and the convictions of another complainant, and to amend his grounds of appeal to include disclosure failures and the fresh evidence sought as a further ground of appeal.
3. On 26 July 2023 in the Crown Court at Leicester before Mr Recorder Auty, the applicant (who was then aged 69) was convicted of two counts of sexual assault contrary to section 3(1) of the Sexual Offences Act 1992 (counts 1 and 2) and three counts of indecent assault on a male person contrary to section 15(1) of the Sexual Offences Act (counts 3, 6 and 7). He was acquitted of two other counts (counts 4 and 5).
4. On 27 September 2023, the applicant was sentenced by the trial judge to an extended sentence of 10 years comprising a custodial term of 8 years extended for 2 years for count 1, with shorter concurrent sentences ranging from 1 to 3 years for the remaining counts.

The Facts

5. There were three complainants on the indictment. The complainants shall be referred to as "C1", "C2" and "C3", in count order which follows the date order of the prosecution which is not the chronological order of the date of the commission of the offences.
6. C2's family lived next door to the applicant's family and the applicant and his wife had become friends with C2's mother. Between 1990 and 1992, when C2 had been about 8 to 10 years old, he had camped in the garden with the applicant and his children. When the applicant's children were asleep the applicant touched C2's penis (count 3, indecent assault) for which he was convicted. The applicant was acquitted of pushing C2's head down towards his genitals to try to make him perform oral sex on the same occasion (count 5, indecency with a child). The applicant was also acquitted of an alleged incident assault on another occasion on a trip to a swimming pool with the applicant and his sons, when it had been alleged that C2 had been left alone with the applicant in the changing room and the applicant had touched his penis (count 4, indecent assault).
7. On a separate occasion C2's mother had asked the applicant to speak to her son when he was in his bedroom in his pyjamas. C2's mother had asked the applicant to comfort her son after she had had an argument with C2 who was being difficult with her. The applicant had gone in his room, spoken to C2 and then masturbated him with his hand inside his pyjamas (count 6, indecent assault).
8. C2's family moved to New Zealand in 1992. C2 informed his mother of what the applicant had done to him in 2005. Some few years later he told his then girlfriend that he had been abused by an adult neighbour in Leicester. C2 had had a very troubled life and had been anally raped by his stepbrother when he was 11, had had substance abuse issues and a series of bad relationships with friends and family over the years, which was all information that was before the jury. C2 returned to the UK firstly in 2007 and then again in 2015 and brought his complaint to the police in 2019. His mother had visited the UK in 2010 and learned that the applicant had been accused of abusing another child whose mother had been a friend of the applicant's wife, just as she had been. It was agreed that the allegation C2's mother had learnt about must have been a reference to C3. C2's mother informed her son, C2, that there had been another complaint against the applicant.
9. C3 had been a school friend of the applicant's son. In July 1994, when he was 9 years old, he had stayed overnight at the applicant's home with his son for a sleepover. He awoke to find the applicant straddling him and masturbating him (count 7, indecent assault of which he was convicted). C3 told his parents the very next day who reported it to the police but they took no further action at that time. Social Services were also told, as the applicant and his wife were in the process of adopting a child, with the result that the adoption process was put on hold for a while. After the police dropped their case about 6 weeks later, and after Social Services had received a forensic psychologist's report, the adoption was ultimately approved.
10. C1, who has learning disabilities, complained that in 2005 or 2006, when he was aged 12 or 13, the applicant had touched his penis and masturbated him in showers at a squash club on three occasions under the pretext of showing him how to wash his foreskin. The applicant had masturbated himself at the same time, on one occasion to the point of ejaculation and had tried to move C1's hand onto the applicant's penis (count 1, sexual assault). On one further occasion between 2006 and 2008, the applicant had pulled the complainant's hand to make him touch the applicants penis (count 2, sexual assault) for which he was convicted, when C1 was 13 to 14. The applicant was a colleague of C1's father who had become very ill with cancer. The offending occurred when the applicant took C1 and his father to his squash club to help out so that the father could watch his son playing squash. The offending occurred in the shower after the game while C1's father waited in the bar for them to join him for a drink. C1's mother's evidence was that C1 had suddenly stopped wanting to play squash with the applicant and at the time she did not know why.
11. Whilst an inpatient in a psychiatric unit, C1 informed a nurse about the incident in 2017, who reported the matter to the police. On the same day, C1 posted an offensive post on Facebook that the applicant was a paedophile, which the applicant became aware of through one of his sons.
12. After C1's police interview, the case was then linked by the police to the earlier two complaints brought by C2 and C3.
13. The applicant denied that any of the offences had occurred. He did know each of the three complainants and he accepted that he had taken C1 to squash when his father had cancer, he accepted that C2 had had a sleepover in a tent in the garden and that C3 had a sleepover in the house with his children. But he said he had never been in C2's bedroom, nor had he ever taken C2 to swimming lessons which was corroborated by the applicant's son (a reference to count 5 of which he was acquitted). The applicant's evidence was that there had never been any inappropriate behaviour on any of the occasions when he was with any of the complainants. He had only ever tried to be kind and caring to neighbours, colleagues and friends and their children and had never committed any abuse.
14. The applicant gave evidence that C3 was a habitual liar and that C2's mother knew of C3's allegation. The applicant's wife and his children gave evidence in support of their father.

Sentence

15. In sentencing, the Recorder set out the facts and noted the devastating effect of the abuse that had robbed each of the three children of their childhoods. He noted the applicant's good character and the contribution that he has made to wider society, but was mindful of what he described as the cruelty and sadism of this kind of abuse. There was grooming and significant abuse of trust in each case, and the applicant had used his standing and status in society to gain the trust of the complainants and their parents.
16. It was agreed that counts 1 and 2 were category 2A offences. The judge considered that the fair and just sentence would be 5 years because of the four occasions on which the abuse had taken place. He then went on to consider totality in the context of the other offences which he considered to be less serious. He made count 1 the lead offence with short concurrent sentences for the others. He considered the contents of a pre-sentence report and found that the applicant was dangerous as defined in the Sentencing Act 2020.

Grounds of Appeal

17. The applicant is represented by fresh counsel in this appeal and the McCook procedure has been followed.
18. Grounds 1-6 are related and can be dealt with together. The applicant's two-fold concern is firstly that C2 knew of C3's complaint and secondly, because of the Facebook post by C1 in 2017, that the applicant was a child sex offender, C2 and C3 may have also known of that complaint yet none of this was said to have been properly drawn to the jury's attention.
19. The background is that the prosecution applied early on in the case, under section 101(1)(c) and (d) of the Criminal Justice Act 2003, to admit the evidence of each of the three complainants as cross-admissible with each other. The application was not opposed by the defence. The case was then put by the prosecution on the basis that the three complaints were entirely independent of each other and the three did not know each other which was never challenged by the defence. It was, strictly speaking, accurate. At the highest the evidence both then (and with the benefit of C2's mother's email, which we will come to later), was that shortly before 2010, C2 had learned there had been another complaint against the applicant and had mentioned it to her son and that was the full extent of it.
20. None of the three complainants were asked directly about this in evidence but the Recorder asked a leading question of the officer in the case that:

"As far as the police were aware, and there is no suggestion to the contrary, none of the three knew each other or had any connection with other, did they?"

The officer in the case agreed that that was correct. In summing-up the judge said that:

"No-one suggests that they know or have met one another or could have been aware of one another's complaint."

21. The applicant's criticism is that in an email from C2 to DC Parker of 28 February 2020, in the unused material, C2's mother had become aware of another complaint which was not before the jury. She had been told the name of the complainant's mother's which was a very unusual name and was the same as C3's mother's name, but she did not have the correct first name of C3. That detail was not included in the witness statement of C3's mother that was then read to the jury by agreement and trial counsel was not aware of it. Even though the email was not before the jury, the jury was well aware of C2's mother's knowledge of another complaint and that she had told her son C2 about it as that was in the mother's statement that was agreed could be read to the jury.
22. The fact that the email to DC Parker revealed that C2's mother had discovered the allegation from a friend of hers who worked in a Social Services' Department who may therefore have breached confidentiality is beside the point and would not assist the jury in relation to any issues in the trial.
23. The jury also had all the information about C1's Facebook post and the applicant's son gave evidence about his knowledge of it in his father's defence.
24. The jury was therefore not misled by the evidence - it was the police who had connected the three complainants from each of their individual and entirely separate complaints. The police were not aware that any of the complainants had knowledge of the other complainants, and the defence team did not object to the cross-admissibility application and were on notice of how the prosecution intended to put their case. The cross-examination of the applicant on these matters was not unfair.
25. The defence cross-examined the officer in the case to draw out that C2 had loose knowledge that an allegation had been made historically. There was a mistake about the name, but the first name of C3 is not material when the unusual name of his mother was correct.
26. The cross-examination of the applicant on cross-admissibility was not misleading and enabled in fact the applicant to emphasise that he thought that the complainants knew of the other allegations.
27. In his summing-up the judge referred to evidence of C2's knowledge and that it may have had some influence on his evidence, even if he did not know the detail, which again demonstrates fairness and even handedness.
28. Furthermore and critically, the chronology of disclosure does not support a concoction theory. C2's family moved to New Zealand when he was 8 to 10 in 1992, shortly after the incidents occurred in relation to him. C2 informed his mother in 2005 about what the applicant had done to him, long before he learned of another possible complaint. C3 first made his complaint in 1994 and C1 made his Facebook post in 2017. There could not therefore have been any collusion in terms of the complainants putting their heads together to concoct false allegations, as was accepted by Mr Scott. The fact that C2 learned of the fact of another allegation some considerable time after he had disclosed to his mother the fact of the abuse by the applicant, does not leave any lurking doubt about the safety of the conviction.
29. Ground 7 criticises the legal directions to the jury which did not include a direction that there was no obligation on the applicant to prove that the allegations had been concocted or to suggest any motive for fabrication, when there had been considerable cross-examination of the applicant about whether any of the complainants had had a motive to make allegations up against him. However, trial counsel had approved the legal directions and had not suggested that such a direction be included and we find that one was not necessary in this case. Although the applicant was cross-examined about the lack of motive to lie, it did not form a significant part of the prosecution case: the main plank of the prosecution case was the compelling evidence of the complainants themselves. The directions on the burden and standard of proof was sufficient to prevent a  jury from concluding that the applicant would have to prove his innocence by providing a motive or concoction.
30. Ground 8 has now been withdrawn.
31. Grounds 9 and 10 concern count 2, which was drafted as a multiple-incident complaint. It was clarified during the hearing that this in fact related to just one incident and the intention was for the indictment to be amended accordingly, although this did not in the event happen. However, it was explained to the jury that this count concerned a single incident, and it was also made clear in the Route to Verdict and in the summing-up. The oversight of not formally amending the indictment did not amount to an irregularity or render the conviction unsafe. The reference to "on two or more occasions" in the count on the indictment was not material to the case the applicant faced as the jury were well aware. Its relevance was only to sentence - (see R v A [2015] EWCA Crim 177 at [43] to [47]) but it is clear from the sentencing remarks that it was quite properly treated as a single-incident offence by the judge.
32. Whether looked at individually or if taken together there are no arguable grounds that the conviction was unsafe. It was for the jury to decide who they believed on the relevant issues on all the evidence.

Fresh evidence application

33. The applicant applies to rely on the fresh evidence of C3's previous convictions. These were not before the trial since prosecuting counsel had wrongly informed defence counsel that C3 had no previous convictions. In fact, he had 18 convictions for 30 offences from 2001 to 2018, ranging from drugs, theft, public disorder, offences relating to police courts and prisons and cautions for burglary and criminal damage.
34. As they were not known about, no application was made under section 100(1) to admit a non-defendant's bad character. The issue in the proceedings the convictions was said to go to was C3's credibility which was at the front of the applicant's defence - he described C3 as a habitual liar.
35. However, it is not easy to see how his previous convictions would have had a substantial probative value or are of substantial importance in the context of the case as a whole. It was known that he had had a troubled life, the dishonestly offences were for theft and shoplifting and it would seem from his sentences on the PNC that he pleaded guilty each time he was before the courts. The cases we were referred to of Brewster and Cromwell [2010] EWCA Crim 1194;[2010] 2 CrAppR 20 and R v BVY [2024] EWCA Crim 1355 concerned different facts. As acknowledged by Mr Scott, all these cases are highly fact sensitive and provide no assistance. Furthermore, C3 had first reported the assaults to his parents in 1994, when he was a very young boy, long before his convictions and cautions, some seven years before his first offence. His account had remained consistent over the years.
36. Although the PNC record is not disputed and thus is certainly capable of belief, and the explanation for not adducing it below is compelling since the defence were misled into thinking there were no previous convictions, it is unlikely that the trial judge would have ruled them to be admissible and, even if the fresh evidence was permitted to be relied on, whether or alone or taken together with the other grounds of appeal, the ignorance of the jury about C3's previous convictions does not lead to any lurking doubt that the conviction of the applicant for the offences relating to C3 were unsafe.
37. The applicant also applies for the email from C2's mother to the officer in the case to be admitted as fresh evidence. As the single judge notes, it would be admissible, is capable of belief, but the fact that the jury did not know about it would not lead to any lurking doubt that the conviction was unsafe for the reasons set out in our conclusions on grounds 1-6. The jury knew the gist of it anyway. Similarly, even if leave were given to the applicant to amend the grounds of appeal as sought the application for leave to appeal against conviction would still be refused.
38. None of the proposed grounds of appeal address the strength of the evidence given by the three complainants which the jury was entitled to believe. This was a careful jury which were not sure about two of the allegations - the swimming pool incident, or the attempted oral sex in the tent - and who must have analysed the evidence with care and attention to detail. There was ample evidence for them to be satisfied to the criminal standard of the other allegations.

Sentence

39. The proposed grounds of appeal on which leave is sought is that the sentence was manifestly excessive since the custodial term of the sentence on count 1 of 8 years was 4 years beyond the top of the range for a 2A offence. On a notional calculation, before factoring in totality, the Recorder arrived at a sentence of 5 years for count 1, which was 1 year outside the top of the range for the offence and more than double the 2-year starting point. The applicant was being sentenced for only five discrete non-penetrative acts of sexual assault. Insufficient credit was given to his lack of previous convictions and his positive good character was wrongly treated as an aggravating factor, it was submitted. As to the dangerousness finding, the pre-sentence report was said to have identified only a low risk of further conviction. No submissions were sought from counsel before the Recorder made his dangerousness finding which was a procedural irregularity and there was no explanation by the Recorder of why a determinate sentence would not have been sufficient to address any risk posed.
40. There is no dispute that counts 1 and 2 were 2A offences under the guidelines. There were two category 2 harm features of touching naked genitalia, and the victim C1 was particularly vulnerable due to his personal circumstances of his learning disability and tragic family health problems. It was culpability A since there was a significant degree of planning and significant abuse of trust. There were no other aggravating features but there was the mitigating factor of the applicant's good character.
41. The sentencing judge was mindful of the totality principle and the need to sentence the applicant to reflect all the offending behaviour which spanned 15 years, was committed against three separate children and which had had a severe impact on each of them, especially C2. There had been grooming of the complainants and the applicant had also befriended and groomed their parents. In the case of C1, he took advantage of the ill-health of his father to create opportunities to abuse his son, described by the judge as "a monumental breach of trust." In the case of C2, he took advantage of C2's mother, who trusted the applicant and believed that he would act in the best interests of her son, suggesting he go to comfort him in his bedroom. It was an inference that the judge was entitled to make on the evidence even though C2's mother had no recollection of it specifically. In the case of C3, the applicant exploited his own son by using his own son's friendship with C3 to perpetrate his abuse.
42. The trial judge will have been well placed to assess both the harm and level of culpability and he explained his reasoning carefully in his sentencing remarks.
43. As noted by the author of the pre-sentence report and the Recorder, the applicant took advantage of his position in society as a respected academic in nursing at the De Montfort University, his voluntary activities with his church and with LOROS (a hospice charity serving Leicestershire and Rutland) where he sat on the Board of Trustees. The Recorder was entitled to conclude that this not only reduced the amount of credit he could be given for this in addition to his lack of previous convictions, but was amounted to an aggravating feature as he used the standing and status that he enjoyed in the community to provide opportunities to perpetrate the offences.
44. As to the finding of dangerousness, it would seem that the pre-sentence report was ordered in order to assess the question of dangerousness which was addressed extensively in the report itself. Although it perhaps would have been preferable for the Recorder to have reminded or invited counsel to make representations about dangerousness if it was refuted, we do not consider it was necessary for him to have done so. The difficulty however with the pre-sentence report is that there appears to be an inconsistency between the analysis and assessment of the risk of reoffending. On the National Probation Service Offender Group Reconviction Scale (OGRS), the analysis was that there was a potential risk of further offences calculated with a 3 per cent risk within 12 months and 7 per cent within 24 months. Utilising the Government Risk of Recidivism assessment tool (RSR), an even lower score of 0.55 was obtained. The pre-sentence report author noted that it indicated that Mr Fowler was assessed as representing a low risk of reoffending in a manner which could potentially pose a serious risk of harm to others. Given the historic nature of these offences and there being no evidence to suggest Mr Fowler has continued to offend, the author concurred with the assessments. However later on in the report the report author reaches a contradictory conclusion that there was a high risk of harm to young boys.
45. We are satisfied that, predominantly in light of the internal inconsistency within the pre-sentence report (and to a lesser extent the fact that although not strictly necessary it would have been highly preferable if counsel had had had the opportunity to address the pre-sentence report, or had drawn the court's attention to it), that the conclusions are not sufficient to entitle the sentencing judge to conclude that the applicant was dangerous within the meaning of section 280 of the Sentencing Act 2020 without explaining how he reached that decision.
46. We find that the 8-year custodial term was a severe sentence but the trial judge would have been in the best position to assess the evidence and understand the level of harm and culpability. The extended manipulation by the applicant of the parents of the complainants, the use by him of his position in society, his denigration of the complainants and personal attacks which formed part of his defence strategy are just a few examples of the aggravating features in this case as is his continued refusal to accept his offending. It was particularly audacious for him to have continued his abuse of young boys after C3 had first reported him in 1994, which demonstrates a chilling determination. We do not accept that there has been double counting.
47. Taking all the facts into account and the totality principle that required the judge to consider three separate complainants over the period of 15 years for a number of offences the custodial element of the extended sentence of 8 years was fully justified. However, the finding of dangerousness was not justified.
48. In summary, the renewed application for leave to appeal against conviction is refused. On the application for leave to appeal against sentence, we grant any necessary extension of time, we grant leave to appeal against sentence and we quash the extended sentence on count 1 and substitute a determinate sentence of 8 years. The finding of dangerousness insofar as it has a separate existence is also quashed. The sentences in the remaining counts remain the same. We grant a representation order for counsel in respect of the sentence application.
49. We would like to express our thanks to Mr Scott for his very detailed and extensive submissions and his assistance to the Court today.