R v Driss Serhir
[2024] EWCA Crim 54
R v Ernest Kalu Obi
25 June 2024
[2024] EWCA Crim 805
Court of Appeal
A man was convicted of sexually assaulting a child. His lawyers appealed, arguing problems with the police interview and use of past convictions. The appeal about the conviction was rejected, but the judges changed his sentence because the original sentence was illegal. They made the new sentence similar in length but legally correct.
Key Facts
- •Ernest Kalu Obi (53) convicted of two counts of sexual assault of a child under 13 and one count of assault by penetration of a child under 13.
- •A fourth count of sexual assault was left to lie on the file.
- •The offences involved the 7-year-old daughter of a woman who knew the applicant.
- •The applicant had a previous conviction for sexual activity with a child in 2017.
- •The ABE interview with the complainant was conducted with her mother present, breaching the Memorandum of Good Practice Guidance.
- •The applicant's defence was one of complete denial.
- •The trial judge initially sentenced the applicant to 11 years' imprisonment (count 3) and 8 years concurrently on counts 1 and 2.
- •The sentence on count 3 was found to be wrong in principle due to a failure to impose a special custodial sentence under section 278 of the Sentencing Act 2020.
Legal Principles
Sexual Offences (Amendment) Act 1992: Restrictions on publication of complainant's details.
Sexual Offences (Amendment) Act 1992
Section 78 of the Police and Criminal Evidence Act 1984 (PACE): Exclusion of improperly obtained evidence.
R v K [2006] EWCA Crim 472
Section 101(1)(d) of the Criminal Justice Act 2003: Admissibility of bad character evidence.
Criminal Justice Act 2003
Section 74(3) of the Police and Criminal Evidence Act 1984 (PACE): Evidential presumption of guilt from previous conviction.
Police and Criminal Evidence Act 1984
R v C [2011] 1 Cr App R 17: Judicial control over challenging previous convictions.
R v C [2011] 1 Cr App R 17
Section 278 of the Sentencing Act 2020: Special custodial sentences for offenders of particular concern.
Sentencing Act 2020
R v A [2020] 1 WLR 5014 and R v D [2022] 1 Cr App R(S) 47: Approach to sentencing appeals involving mandatory sentences.
R v A [2020] 1 WLR 5014; R v D [2022] 1 Cr App R(S) 47
Section 11(3) of the Criminal Appeals Act 1968: Restrictions on increasing sentences on appeal.
Criminal Appeals Act 1968
Outcomes
Renewed application for leave to appeal against conviction refused.
The breaches in the ABE interview, while substantial, did not render the evidence unreliable or the trial unfair.
Renewed application for leave to appeal against sentence granted in part.
The original sentence was unlawful due to the failure to impose a special custodial sentence under section 278 of the Sentencing Act 2020.
Sentence on count 3 quashed and replaced with a special custodial sentence of 8 years and 2 months (7 years 2 months custody and 1 year extended licence).
This corrected the unlawful sentence while adhering to the principles in R v A and R v D, ensuring the release date would not be earlier than under the original sentence.