Brian Nurdon [2019] EWCA Crim 1674

R v Brian Leslie Nurdon [2019] EWCA Crim 1674 concerned an appeal against conviction and sentence by a man convicted in the Crown Court at Cardiff of historical sexual offences. The Court of Appeal (Lord Justice Davis, Mrs Justice Lambert and Sir Kenneth Parker) refused the renewed application for leave to appeal conviction and dismissed the appeal against sentence.

Mr Nurdon was tried in September 2017 on an indictment containing twenty-five counts of sexual offences. The jury convicted him of one count of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, acquitted him of nineteen counts, and could not agree on five further counts. The Crown sought a retrial on those five counts. On 14 March 2018, following retrial, Mr Nurdon was convicted of three further counts of indecent assault and two counts of rape. He was sentenced to a total of eighteen years’ imprisonment: twelve years concurrent for each rape and eighteen months consecutive for each of the four indecent assaults, those consecutive terms also consecutive to the rape sentences.

The offences were historical, committed between 1979 and 1985 when Mr Nurdon was aged between twenty-nine and thirty-five. He lived in Albany Street, Newport, with his partner and young daughter. The three complainants, now middle-aged women, were then aged between thirteen and seventeen. SB was seventeen at the time of the indecent assault for which he was convicted at the first trial. DE was between thirteen and fifteen when indecently assaulted; she had been the complainant in nine counts of which Mr Nurdon was acquitted at the first trial. HL was between thirteen and fifteen when subjected to two indecent assaults and fourteen at the time of the two rapes. All three lived locally and would visit Mr Nurdon’s home when truanting from school to watch television, listen to music and drink alcohol. The offences took place in his house, car and camper van.

Mr Nurdon’s renewed application for leave to appeal conviction concerned the convictions relating to DE and HL. He argued that the judge erred in ruling inadmissible the previous acquittals relating to DE and that the judge wrongly rejected a submission of no case to answer. The latter ground challenged not only the conviction for indecent assault of DE but also those concerning HL.

On the admissibility of the acquittals, Mrs Justice Lambert observed that previous acquittals are inadmissible save in exceptional circumstances, being evidence only of another jury’s opinion and not relevant to the issues before a subsequent jury. The court approved the approach in R v Deboussi [2007] EWCA Crim 684, namely that a jury may exceptionally be told of a previous acquittal only where there is clear evidence from the verdict that the jury had not believed a witness and that witness’s credibility is directly in issue in the subsequent trial. Even then, the court must consider whether fairness requires the jury to know. The Court of Appeal found no such exceptional circumstances. It was not inevitable that the acquittals meant the jury had rejected DE’s evidence and found her untruthful; the jury may have entertained doubts about her age or the remoteness of the events, and the judge had directed them to consider each count separately. Admitting the acquittals would have risked dangerous distraction and satellite argument, especially as the jury might have learned of other counts on which no verdict had been reached. Leave was refused on that ground.

As to the submission of no case to answer, the court accepted that the ages of DE and HL were relevant to consent but noted that both victims asserted they were under the age at which they could lawfully consent and that the allegations related to a course of conduct over time. The points raised about contradictions in the evidence were matters for the jury’s determination at the end of the trial. Leave was refused on that ground also.

On sentence, Mr Nurdon appealed with leave against the sentences for the four indecent assaults. The judge had sentenced him to eighteen months’ imprisonment for the assault on DE, involving digital and fist penetration of her vagina when she was between thirteen and fifteen. The judge recorded that the maximum sentence was two years and that the offence in isolation justified the maximum but reduced it to eighteen months to reflect his intention to impose consecutive terms in observance of totality. He took the same approach to the other indecent assaults: eighteen months for the assault on SB, who was seventeen and digitally penetrated while asleep on a sofa, and eighteen months each for the two specimen indecent assaults on HL, aged between thirteen and fifteen, involving insertion of a vibrator and a snooker cue. For the two rapes of HL, the judge imposed twelve years’ imprisonment concurrent on each count. He applied the modern guideline and categorised the offences as category 2A, taking into account severe psychological harm and HL’s vulnerability by reason of age and the location of the offending in a quiet place away from her family. He considered but rejected category 1, concluding that having regard to the offending in the round it was not justified. He made a downward adjustment for totality within the guideline range of nine to thirteen years.

Three grounds of appeal were advanced. The first was that the judge failed to differentiate between the indecent assaults, which varied in gravity, involving victims of different ages and different forms of penetration. The court recognised that the judge did not differentiate as he could have done but held that this did not render the overall sentence manifestly excessive. Any difference between the sentence for SB and those for the younger victims subjected to more serious assaults would have been marginal and could have been reflected by marginally higher sentences on the latter counts. The judge’s focus throughout had been on the overall sentence rather than individual components, an approach the court found unobjectionable in principle in such a case.

The second and third grounds asserted that consecutive sentences should not have been passed for the two indecent assaults on HL and that those sentences should have run concurrently with the rape sentences. Miss Cox for Mr Nurdon argued that the indecent assaults were part of a series of similar offending against the same person over a similar period and that the resulting fifteen-year sentence for offences against HL was manifestly excessive measured against overall criminality. The court disagreed. The offending involved insertion of dangerous hard objects, causing additional degradation and humiliation. HL had suffered serious psychological harm, was vulnerable by reason of age, and the offending spanned two years during her early teenage years. She had made two suicide attempts as a teenager and had been unable to put the events behind her. The court held that Mr Nurdon’s overall criminality justified a sentence of fifteen years’ imprisonment for the offences against HL. If the indecent assault sentences had been ordered concurrent with the rape sentences, the judge would have been justified in increasing the rape sentences to fifteen years to reflect two rapes and two serious indecent assaults on a young teenage victim. No challenge was made to the imposition of consecutive terms for the indecent assaults on the other two victims, a concession the court found properly made given the Sentencing Council Guidelines. The court accepted that the total sentence of eighteen years was high but did not find it manifestly excessive or inconsistent with the appellant’s overall criminality.

In short, the Court of Appeal refused leave to appeal conviction on the grounds that the judge was entitled to exclude evidence of earlier acquittals and to reject the submission of no case, and dismissed the appeal against sentence on the ground that the total of eighteen years’ imprisonment was not manifestly excessive having regard to the sustained and degrading nature of the offending against three young victims over a period of years.

D [2007] EWCA Crim 684