England and Wales Court of Appeal (Criminal Division) Decisions

FLITTER, R v. [2000] EWCA Crim 68 (13th December, 2000)

Case No: 2000/01105/X5

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 13th December 2000

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On 27th January 2000 in the Crown Court at Reading, before His Honour Judge Lait, the appellant was convicted of rape and on 25th February sentenced to four years' imprisonment. He now appeals against conviction, the Single Judge having given leave on Ground 3 only of four grounds:

(1) The learned judge erred in refusing the defence application to cross-examine Rebecca Middleton regarding her taking the contraceptive pill and her relationship with a Mr Carey ...

(2) The learned judge erred in refusing the defence submission of no case to answer at the close of the prosecution case.

(3) Following argument the learned judge erred in leaving recklessness to the jury when it did not form part of the prosecution case.

(4) In his summing-up, the learned judge erred when he made the following comment and/or suggestion to the jury regarding the alleged complainant:

`You may think it is not always easy (to complain of rape) etc and "possibly she could not face the consequences of naming [the defendant]."'"

2. The complainant, then aged 18, was an acquaintance (and no more) of the appellant. As a result of that acquaintance, he knew where she would be drinking on the evening of 18th March, where she had arranged to meet friends. He arrived after her, she went to join him and they spent the evening together. They danced and kissed. They did a tour round several local public houses, leaving the last one at about 1.30am on 19th March. They could not get a taxi. She agreed to go to the appellant's home to telephone for a cab. She made no complaint as to his behaviour all this time. That involved them crossing the park, and in relation to what happened there, their accounts differed dramatically.

3. Her evidence was that as they walked in the park, the appellant steered her off the footpath onto the grass. She asked where they were going and he told her not to worry. He then turned towards her and pushed her backwards so she fell to the ground, hitting her head. He lay on top of her and kissed her. She told him she wanted to go home and tried to sit up, but the appellant pushed her back down again. She said he began to feel her body as she continued to try to push him off her. She was not consenting, and made it clear by her words and conduct that she was not consenting. Her evidence was that his attitude seemed to change and he was nasty, and did not seem to care any more about her at all, when earlier he had been affectionate. She testified that he undid his trousers and tried to undo her trousers; he shouted at her because he had difficulty in doing this. She was by this stage frightened and was unable to stop him forcing down her trousers. He then pulled her knickers to one side and forced his penis inside her, using his knees to force her legs apart. She said that she squealed as he penetrated her and asked him to stop. He was rough and hurt her; she felt a stinging pain as he entered her. Intercourse lasted four to five minutes. She was not sure whether he had ejaculated or whether he used a condom. She said that at some stage he took his mobile phone out of his pocket and she knocked it out of his hand. Afterwards he told her that she had broken it. He rolled off her and got up; she remained lying on the ground feeling shocked and in pain.

4. His account was that over the course of the evening they had kissed and held hands several times, were getting on well and were affectionate to each other. When they left the last public house in the early hours of the morning they found there were no taxis. He suggested they telephone a taxi from his home. She agreed and they walked off together.

5. The appellant's evidence was that they walked along the footpath kissing before moving onto the grass, where they lay down holding each other. She undid her trousers and pulled them down to her knees. He pulled his jeans down, she pulled her G-string to one side and opened her legs and used his hand to guide his penis into her. It felt as though she was sexually aroused, and they had sexual intercourse. At no stage had she told him to stop or indicated that she was not consenting. The only noise she made was a moaning, a sound of response rather than protest and he was unaware that she had been hurt. He described their mood after intercourse as "wonderful". They kissed and afterwards resumed their walk, passing a fire and ambulance station on the way to his house.

6. She went to his house because she didn't know where she was nor how she would get home. His mobile was broken so she could not call a taxi, so she had no alternative but to go back to his house to telephone for a taxi. She was reluctant to go with him, but she assumed his parents would be there and nothing worse could happen. She became aware at around this time that she was bleeding from her vagina. She sat on a "fake fur" rug on their floor and noticed when she left that she had left a bloodstain on it. She also left a bloodstain on the seat of her taxi, when that took her home. Both the appellant's parents said they had not noticed any stain on the rug.

7. After the complainant reached home in the taxi, she went to the bathroom, still bleeding, where her mother found her. She told her mother that she had started her period which was not true. She went to bed. The following day, she was still bleeding and in great pain. She spoke to her sister's husband Chris, and told him she had been raped. Chris took her to the doctor, and later he and her sister told her parents she been raped. She was examined by her GP and was referred to the hospital. She initially told medical staff that she did not want the police involved, but by 4.10pm she had changed her mind. She spoke to police about 8.30pm, saying that she had been raped by a stranger in the park, giving a detailed account of the incident and a description of the attacker. By 10.45pm she admitted tearfully that she did know her attacker, but she did not want to make a complaint. She was upset, tearful and apologetic that she had not been straight with the WPC. When she heard that people thought she had been with the appellant earlier in the evening, she burst into tears and named the appellant as her attacker.

8. We turn to the sole ground of appeal for which leave has been given, which we repeat for convenience:

"(3) Following argument the learned judge erred in leaving recklessness to the jury when it did not form part of the prosecution case."

9. Mr Coode for the appellant put this ground of appeal forward on the basis of that line of cases where the Crown, for one reason or another, have "... nailed their colours to the mast" and set out to prove that the defendant knew that the complainant was not consenting, but the judge wrongly allowed the case to be summed up on a basis which had never been put forward by the prosecution, namely that the defendant knew the complainant was not consenting or was reckless as to whether the complainant was consenting. This requires an examination of the offence of rape, which is now a statutory offence.

10. The indictment simply read

11. Section 1(1) reads:

"1 Rape of woman or man

(1) It is an offence for a man to rape a woman or another man.

(2) A man commits rape if:

(a) he has sexual intercourse with a person ... who at the time of the intercourse does not consent to it; and

(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it ..."

1. 12. That section in its original form came into the law by Section 1 of the Sexual Offences (Amendment) Act, 1976. Until then, rape had been a common law offence. That section codified it. The actual ingredients of the offence are that: 1) sexual intercourse took place; 2) without the consent of the victim. If that was proved, then the guilty mind of the accused had to be proved: 3) that the man knew the victim was not consenting; or 4) he did not believe that the victim was consenting, and could not have cared less whether s/he was or not, but pressed on regardless.

13. Miss Preston for the Crown disputed that she had put the Crown's case as alleged in paragraphs 8 and 9, based on knowledge only. Her first point relied on the defence Case Statement which said:

"The accused's case is that the sexual intercourse was consensual. Alternatively, if [the complainant] was not in fact consenting, the accused maintains that he did not know that she was not consenting, nor was reckless as to whether she was consenting or not."

14. That is expanded at paragraph 2b of the same document:

"The reason why the accused takes issue with this matter is because there was no way the accused could not have known that she was not consenting. At no stage did she ever say that she was not or give any sign or indication whatsoever that she was not."

15. Additionally Miss Preston submits:

"It is in any event not accepted that the Crown's case had moved its position at all. The Crown's case in the light of Miss Middleton's evidence was that she believed that the defendant knew that she was not consenting. However, it was not for Miss Middleton alone to substantiate this assertion to the jury, they were further entitled, and indeed duty bound, to also consider the defendant's account and behaviour. If the jury took the view that the defendant ignored the complainant's protestations, they would be properly entitled to conclude that the defendant acted recklessly."

16. In response, Mr Coode said that the Crown had opened the case in such a way as to indicate that they were taking on the burden of proving knowledge, and not relying on recklessness. Miss Preston convincingly replied that it was not her practice to open the law, and while she obviously would have emphasised her primary case: that the appellant knew the complainant was not consenting, she was not abandoning recklessness - indeed why should she? Questioning of Mr Coode by the Court elicited his final position: that though he accepted that he was not told so in terms by Miss Preston, it was clear that the Crown had nailed their colours to the mast and had undertaken to prove knowledge to the exclusion of recklessness. Miss Preston demonstrated to our satisfaction that she could not and would not have cross-examined without having put recklessness.

17. Having heard both accounts, we are satisfied that Miss Preston is right as to how she put the case, but that the point first emerged in the open when there was discussion before speeches as to how the judge should leave matters to the jury. We are told by Miss Preston for the Crown that the judge raised the topic, indicating that he intended to give the jury the full direction, including recklessness. He clearly concluded that recklessness was open to them. In our judgment he was clearly right to do so.

18. We are reinforced in that conclusion by the combined experience of the Court in participation in rape trials. We are aware that in the case of R -v- Bashir [1983] 77 Cr App R 59, the trial judge amended the rape indictment before him to allege "knowingly" and "recklessly" in separate counts, and the Court (per Tasker Watkins LJ) described that course as "wise". Whether that remark was prompted by the unusual feature of that case, namely that the defendant "somewhat surprisingly" had said he could not remember the events of the evening, we know not. But our experience suggests that the offence is, so far as we are aware, in practice always indicted as it was here, without "knowing" and "reckless" being the subject of separate counts. Additionally, we have never in practice come across a prosecutor who has abandoned the alternative form of mens rea, namely "... at the time he ... is reckless as to whether that person consents to it", and fought the case on knowledge ("... at the time he knows that the person does not consent.") alone. That would be not only foolish but bizarre, and we are satisfied that it simply did not happen here. Mr Coode's misunderstanding of the Crown's position was cleared up before speeches and this ground of appeal must fail.

19. Mr Coode invited us to give leave on two of the three grounds on which the Single Judge had refused leave. We do not think it right to do so. The time of the Court should not be taken up with weak points. As to 1), the judge exercised his discretion correctly. As to 2), the judge was right to conclude that the credibility of the complainant was a matter for the jury. It would have been quite wrong for him to stop the trial.