Introduction and Background
The case of Adam Johnson, the former Sunderland footballer, has generated a lot of interest (see here for some previous coverage and links).
Sentenced to 6 years last year, he tried to appeal both his sentence and conviction, and was turned down in relation to both on the papers by the Single Judge.
He renewed both applications to the Full Court of Appeal (as was his right). When this was announced, we expressed the view that he was unlikely to get anywhere, and so it turned out to be on 16th March 2017 when the Court dismissed both application.
Unusually for a renewed application (which generally has no value as a precedent), the judgment was published. This was no doubt because of the high profile nature of it. As always, it’s worth reading. It’s short and direct from the source.
The argument at appeal centred around questions that Mr Johnson was asked, and the Judge’s direction on ‘adverse inference’ – the idea that the jury can hold it against Mr Johnson that he didn’t mention certain things in interview.
Mr Johnson was asked questions about why he did not plead guilty to the counts that he did until the day of trial. The Court said that given Mr Johnson had said that he felt remorse, the prosecution were entitled to ask about this.
Interestingly, the Court were slightly critical for the fact that there were a variety of questions about matters that were not particularly relevant, which should either have been excluded or at least the jury told to ignore it.
Having said that, this would not have made the conviction unsafe.
More interestingly was the direction on the adverse inference. Mr Johnson had said in interview that he had to be at the stadium on the day in question (2nd March) by 6pm. He didn’t say then, but was to say in evidence, that he would have been fined by the club had he not been there.
The significance of this was the amount of time that he would have had with the victim. The prosecution sought an adverse inference on what he had said about the fining, but not the 6pm deadline.
The Court of Appeal agreed with Mr Johnson that the Judge should not have given an adverse inference direction in these circumstances (which must be right). However, they held that it did not impact on the safety of the conviction (which is again probably true).
After setting out the issues and the facts of the case, the Court said that what the Single Judge had said (see para 40) was correct – the sentence was severe, but not manifestly excessive.
Of interest to lawyers is that the Court did say that this was not really a case of abuse of trust, or that his good character (which enabled him to be in the position to carry out the offending) was anything other than a mitigating feature, albeit of less value in the circumstances. It was not enough to mean that the Judge fell into error in the sentence however
This is then the end of the road for Mr Johnson (barring any new evidence, although it is hard to envisage what this could be) as far as the legal process is.
He has served a year of his sentence, and will be released in another two, before spending another three years on licence.
It is unclear whether Mr Johnson would attempt to resurrect his football career, but the experience of Ched Evans would suggest that if he tried, there is no chance that he would be successful.