Miscarriages of JusticeUK

Adam Johnson Loses Child Sex Case Appeal but Should he Have?

Ex-England footballer Adam Johnson has lost a Court of Appeal challenge against his conviction for sexual activity with a schoolgirl. The 29-year-old was jailed for six years last March for sexually touching and grooming the 15-year-old fan. The former Sunderland player was refused leave to appeal his conviction and sentence in July and launched a second bid. Three judges rejected the latest appeal and a bid to reduce his sentence. At the appeal hearing, Eleanor Laws QC argued against her client's conviction on the grounds the trial judge "misdirected" the jury on issues of his "credibility".

Justice Rafferty, Sweeney and Goose, who heard the appeal, were quite clear that the trial judge made several errors and misdirected the jury. But shafted Mr. Johnson anyway!

Johnson v R. [2017] EWCA Crim 191 (16 March 2017)

Grounds of Appeal

Miss Laws QC who did not appear below advanced two grounds.

Ground One - Timing of Plea

20. The judge erred in permitting the Crown to cross-examine as to the timing of his guilty pleas and to explore theories as to his reasons for pleading guilty when he did. The line of cross-examination was misleading. The effect was prejudice, creating the impression that timing was an attempt to save his job and mislead his football club, the Crown, Court and public. The judge should have stopped cross-examination on irrelevant matters, not reminded the jury of them but directed the jury to ignore them. He gave the jury no help on how to deal with the late guilty plea.

Ground Two - Adverse Inference

21. The judge misdirected the jury when he gave a s34 Criminal Justice and Public Order Act 1994 adverse inference direction on failure to mention that the meeting on 2 March could not have lasted longer than 15 minutes since he had to reach the stadium by 1800 and would have been fined if late. In interview the applicant had mentioned having to be at the Stadium by 1800.

Judge's Conclusion

22. The inevitability of a plea to Counts 1 and 2, admitted in interview, was regardless of challenge to KL's truthfulness about parts of her account. The question is thus the relevance to guilt on Counts 3 and 4 of the late plea to Count 2. The applicant concedes that his remorse, if any, put in issue by a question from his own counsel, meant that the judge's decision to permit cross-examination was not an impugnable exercise of discretion.

23. That said, cross-examination was permitted on, for example, Dubai, free kicks, money, name-calling - topics unlikely to help the jury on the central issue of credibility. It would have been wise to preclude them or, on reflection, in summing-up to urge the jury to ignore them.

24, The jury also had no help in how to approach the late plea. Having permitted cross-examination, the judge ought to have distilled its relevance. There was no direction, for example, that a conviction should not hang upon the delay in admitting guilt on Counts 1 and 2. All this was unfortunate. It did not however imperil the safety of the conviction.

25.More troubling is the direction on adverse inference. The Crown sought to separate arrival time at the stadium from a fine for lateness. It sought the inference on the latter not the former.

26. Before giving evidence in chief the Applicant had not raised the relevance of a fine (or absence thereof) upon which he relied in an exercise in deductive reasoning. Were he late he would have been fined. He was not fined so could not have been late. If he were not late he could not have spent as long in the car with KL as the Crown suggested.

27. The judge directed the jury in terms of insufficiency of time to do the alleged sexual act.

28. It would have been wiser to avoid a S34 direction all together. The Applicant had in interview explained the scheme governing arrival time at the stadium, and had thus set up the line of reasoning upon which he later relied when introducing the non-existent fine. He had mentioned stadium, time, onward journey, and penalty. This was adequate to protect against a S34 direction.

29. That said, the error does not imperil the safety of the conviction. The jury had to be sure that he committed the sex act pleaded. Whether he had available to him 10 minutes or 45 minutes he had time to complete it. That is an end to the point.

30. The renewed application for leave to appeal against conviction is refused.

Extract from the Appeal: