R v Sands 2026
S and complainant (C) were in a relationship for approximately 3 years between 2016 and 2019. Their twins were born prematurely in July 2017, resulting in additional care responsibilities for C. On 31 October 2019, C contacted police about S stalking her through a mobile phone app he had installed. C subsequently disclosed to police that S had tried to rape her anally a few weeks before and made further disclosures of sexual abuse during the relationship.
When police arrested S on 1 November 2019, they seized his mobile phone and discovered 12 videos of S and C having sex, including one from 9 September 2019 showing anal penetration while C could be heard saying she did not like it and wanted him to stop. On 28 May 2020, S pleaded guilty in the magistrates' court to stalking C between August and October 2019, for which he received a community order. On 23 August 2024, S was convicted at Canterbury Crown Court of rape (counts 1 and 3), attempted rape (count 4), and voyeurism (count 5), but acquitted of sexual assault (count 2).
Count 1 related to S having sex with C while she was asleep in 2017.
Count 3 related to anal rape recorded on video on 9 September 2019.
Count 4 involved attempted anal rape in October 2019.
Count 5 concerned making videos of sexual activity without C's knowledge or consent.
S was sentenced to 12 years' imprisonment for these offences.
S appealed against conviction on grounds that the judge failed to give proper directions regarding evidence of his past behaviour, and against sentence on the basis it was manifestly excessive.
S argued that the judge failed to give directions on the use to which evidence about his past behaviour towards C could and could not be put (grounds 2 and 4). S also submitted that circumstances of the case were analogous to R v MA [2019] EWCA Crim 178, requiring similar directions on how evidence of controlling behaviour should be used. S contended that the judge was wrong to refuse applications under section 41 of the Youth Justice and Criminal Evidence Act 1999 to adduce C's previous sexual behaviour, particularly text messages with another man (ground 5).
Held
Appeal dismissed.
The Court of Appeal dismissed S's appeal against conviction and sentence.
All the evidence of S's past behaviour towards C was properly admissible under section 98 of the Criminal Justice Act 2003, including the stalking conviction and evidence from the ABE interviews, as they were relevant to the relationship context and issue of consent. The court rejected the comparison with R v MA [2019], noting that in this case there was no allegation of physical, non-sexual violence during the relationship in addition to the sexual offences, and the section 98 evidence related specifically to the sexual relationship and control. The judge had presented the issue of consent clearly and fairly to the jury, making it plain that their conclusions about the history of the relationship related to whether C had submitted to or consented to sexual activity.
On the section 41 application (ground 5), the court found that the judge had applied the correct legal principles and exercised her judgment appropriately in allowing limited questioning about C's text messages with "B" while restricting the admission of the full content.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
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