DM v R
[2024] EWCA Crim 1187
Gary Bennett v R
7 July 2023
[2023] EWCA Crim 795
Court of Appeal
A man was convicted of child sex crimes in 2016. He waited a very long time to try and appeal, and the court said he should have appealed sooner. Even though there were a few minor problems with the original trial, there was enough evidence to support the guilty verdict, so his appeal was rejected.
Key Facts
- •Gary Bennett was convicted in 2016 of three sexual offences against a child: exposure, causing a child to watch a sexual act, and rape.
- •He received a 1-year determinate sentence and an 11-year extended sentence.
- •Bennett's application for an extension of time (1965 days) to appeal his conviction was refused by a single judge and is now before the Court of Appeal.
- •The significant delay in applying for leave to appeal is the central issue.
- •The main evidence against Bennett was the child's testimony and forensic evidence from his laptop showing access to pornography around the time of the alleged offences.
- •At trial, the complainant became distressed during cross-examination, leading to the abandonment of some questions.
Legal Principles
A person seeking an extension of time to appeal must give reasons for the delay (Crim PR 36.4).
Crim PR 36.4
The court considers various factors when deciding on an extension of time, including the length of delay, reasons for it, interests of justice, public interest in finality, victim's interests, retrial practicability, and potential injustice to the defendant.
R v Ashley King [2000] 2 Cr. App. R. 391; R v Hughes [2009] EWCA Crim 841; R v Thorsby [2015] EWCA Crim 1; R v Wilson [2016] EWCA Crim 65; R v Roberts & Others [2016] EWCA Crim 71; R v James & Others [2018] EWCA Crim 285; R v Gabbana [2020] EWCA Crim 1473; R v Patterson [2022] EWCA Crim 456; R v FG [2022] EWCA Crim 1460
In cases of significant delay, a compelling case on the merits is needed to justify an extension of time.
Case law cited in section 8
A judge is not always required to give a direction to the jury on a complainant's distress during evidence, particularly if the distress did not occur during the initial complaint.
Crown Court Compendium; R v JS [2019] EWCA Crim 2198; R v Thompson [2014] EWCA Crim 743; R v Lake [2023] EWCA Crim 710
A direction reminding the jury to avoid sympathy and emotion should be given if the case is likely to generate such responses.
R v Razaq Assadullah [2004] EWCA Crim 2917; R v David G [2006] EWCA Crim 500
The Sexual Offences (Amendment) Act 1992 protects the identity of victims.
Sexual Offences (Amendment) Act 1992
Outcomes
The application for an extension of time was refused.
The court found the delay was considerable and largely unexplained. While some errors in the judge's summing-up were identified (failure to address complainant's distress and lack of direction on avoiding emotional responses), these were not deemed sufficiently material to render the convictions unsafe, particularly given the corroborating evidence.