Lee Undrill [2019] EWCA Crim 1292

**R v Lee Undrill** [2019] EWCA Crim 1292 concerned a renewed application for leave to appeal against conviction for assault on a child under 13 by penetration and breach of a Sexual Offences Prevention Order, heard by the Court of Appeal (Criminal Division) comprising Lord Justice Bean, Mr Justice Choudhury, and His Honour Judge Potter.

On 30 March 2017 at Snaresbrook Crown Court, Mr Undrill was convicted after trial before His Honour Judge Shanks of assault on a child under 13 by penetration contrary to section 6(1) of the Sexual Offences Act 2003 (Count 1). He subsequently admitted breaching a Sexual Offences Prevention Order. He was acquitted on Count 3, which alleged sexual assault on a separate child victim. No verdict was taken on Count 2, an alternative count of sexual assault relating to the same incident as Count 1. The application for leave to appeal against conviction was made out of time and had been refused by the single judge.

The prosecution case arose from events on 28 August 2014 when Mr Undrill’s partner, Ms H, was babysitting two six-year-old twin sisters, E and S. In an Achieving Best Evidence interview conducted on 10 September 2015, E alleged that while she and her sister were watching a film in Ms H’s bedroom, Mr Undrill had entered the room when Ms H and another woman, Ms D, had gone outside to smoke. E stated that Mr Undrill had hugged her, touched her bottom, then put his hands under her knickers and inserted his finger into her vagina. E’s twin sister S initially made a similar allegation in her ABE interview but in evidence stated that Mr Undrill had not touched her, which led to his acquittal on Count 3. The jury also heard expert medical evidence from Dr Gray concerning a medical examination of the complainant.

The defence case was a complete denial. Mr Undrill gave evidence that he had not been alone with the complainants and had had no opportunity to commit the offences. He was supported by Ms D, who testified that on the day of the alleged incident Mr Undrill was never left alone with the children.

The first ground of appeal contended that the trial judge should have withdrawn Count 1 from the jury at the close of the prosecution case because there was no case to answer. Mr Newton, appearing for the applicant, acknowledged that trial counsel had not made such a submission, though counsel had successfully submitted no case to answer on Count 3. There had been an earlier unsuccessful application before Judge Paneth to have Count 1 dismissed on the basis that the ABE interview did not disclose a case to answer.

The Court of Appeal rejected this ground. Lord Justice Bean held that trial counsel had been entirely right not to make a submission of no case to answer in respect of Count 1 because there was in fact a case to answer. The court noted that while there was no rule preventing renewal of an unsuccessful pre-trial application to dismiss at the close of the prosecution case, such an application would properly have been rejected. Examining passages at pages 9, 10 and 17 of the ABE interview, the court identified phrases including “He done it under my knickers,” “He put it in but it wasn’t hurting,” “He put his finger sideways,” and “He put it at the front.” The court concluded that Judge Paneth had been correct to refuse the application to dismiss Count 1 and that a similar application at the close of the prosecution case would likewise have failed.

The second ground criticised the trial judge’s legal directions to the jury. The judge had first explained at page 92 of the transcript the difference between Count 1 and Count 2, then returned in greater detail at page 93 to what was required to constitute the offence on Count 1, correctly emphasising that on an allegation of assault by penetrating the vagina, the slightest penetration is enough. At page 94F, the judge stated “The real issue is whether it happened at all.” Mr Newton submitted that this phrase and the passage which followed amounted to directing the jury that there was a simple binary choice: if they believed the complainant they should convict, and if they disbelieved her or had a reasonable doubt they should acquit. He contended that the judge should have directed the jury that even if the incident occurred, they needed to focus on whether there was penetration as alleged or merely touching.

The court found no merit in this ground. Lord Justice Bean held that Mr Newton’s submission was tantamount to asking the judge to tell the jury that in addition to the defendant’s primary case that nothing happened at all, they should consider the alternative that if something did happen it might only have been touching rather than penetration. The court held that such a direction would have detracted from the simplicity of the defence case. The judge could not be criticised for having set out the legal directions as to the ingredients of the offences charged and then identifying the real issue in the case.

The third ground alleged that the summing-up as a whole did not give the jury a balanced picture as between the prosecution evidence and the defence evidence, including the testimony of the defendant’s supporting witness Ms D. Mr Newton referred to the number of pages devoted to the prosecution evidence compared with those devoted to the defence evidence in the summing-up.

The court rejected this submission. Lord Justice Bean observed that it was very common for prosecution evidence to contain much greater detail than defence evidence, particularly when, as in the present case, the thrust of the defence was that what the complainants said simply did not take place and the defendant had no opportunity to carry out the alleged offences on the day in question. Such a case was capable of brief summary. When the court asked Mr Newton what essential point in the defence evidence should have been made to the jury but was not, he was unable to give an answer. The court found nothing in ground three.

The fourth ground related to the separate offence of breach of the Sexual Offences Prevention Order. The court held that this conviction stood or fell with the safety of the conviction on Count 1.

In short, the Court of Appeal refused permission to appeal against conviction and refused the extension of time sought, finding no arguable basis for questioning the safety of Mr Undrill’s convictions on either count.