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Cite as: [2001] EWCA Crim 2844

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Rooney, R v [2001] EWCA Crim 2844 (19th December, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2844
		Case No: 2001/2256/Y3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
Mr Justice Wright

Royal Courts of Justice
Strand, London, WC2A 2LL

19 December 2001

B e f o r e :

LORD JUSTICE WALLER
MR JUSTICE ROUGIER
and
MR JUSTICE STANLEY BURNTON
____________________

Regina

- and -

Peter R

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Michael Mansfield QC and Peter Clark appeared for the Appellant
Charles Gratwicke and Miss Kerry Musgrave appeared for the Crown
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Waller :

On 26 March 2001 in the Crown Court at Lewes before Wright J the appellant was convicted of rape (count 2) and indecent assault on a female (counts 1, 3 and 4) and was sentenced to a total of 6 years imprisonment. He appeals against conviction by leave of the single judge.

This conviction followed a retrial. The appellant was originally convicted in April 2000 at the Crown Court at Maidstone on an indictment containing six counts. On that occasion he was convicted of an additional count of rape said to have taken place in Barbados. He was acquitted of a further count of indecent assault. He was sentenced to a total of 7 years imprisonment.

On an appeal against that conviction in November 2000, the Court of Appeal Criminal Division found that the Crown Court had no jurisdiction in relation to the rape which was alleged to have taken place in Barbados as the alleged offence preceded the introduction of the Sexual Offenders Act 1997. Counsel for the prosecution before the Court of Appeal on that occasion, sought to persuade the court simply to quash the count relating to the Barbados incident. The submission was that the essential structure of the judge’s summing-up would have been the same so far as the other counts were concerned since the history of the Barbados incident would have had to be led in evidence as part of the background material.

The Court of Appeal was unpersuaded by the above argument and quashed the convictions on all counts saying, amongst other things:

“.. the Crown, in opening to the jury, would have had to explain that the allegation of rape (in Barbados) was not justiciable before them and explain the reason why it could not be. Counsel would have had to explain the basis upon which they relied upon that material, either as similar fact (which is unlikely) or as background (which is more likely). Moreover, the judge would have been obliged to give a specific, tailor-made direction to the jury as to how to approach and treat the evidence. This direction would not have been mere ‘fine tuning’ as suggested by Miss Musgrave. (counsel for the Crown on that occasion).”

Points on this appeal

The points taken by Mr Mansfield QC orally before us arise out of the way in which certain matters which were dealt with at the first trial came to be dealt with at the retrial. Putting the matter shortly for the moment, first, it is asserted that the retrial should have been stayed for abuse of process because a shoe-box containing certain material which had been made available to the defence at the first trial for the purpose of cross-examining the complainant, had been handed back to the complainant and destroyed before the retrial. Second, between the first trial and the retrial there came into force section 41 of the Youth Justice and Criminal Evidence Act 1999 passed for the protection of complainants in proceedings for sexual offences. The judge felt obliged by virtue of the provisions of that section to prevent the defence cross-examining the complainant on a matter in relation to which she had been (a) cross-examined at the first trial and (b) had accepted that she had lied. Mr Mansfield submitted that the judge failed to appreciate fully the powers he had under section 41 and in particular section 41(5), and should have exercised his discretion in favour of allowing the questions to be put at the retrial.

Third, as appears from the above quotation from the judgment of the Court of Appeal in relation to the first trial, the evidence in relation to the incident in Barbados did have to be dealt with carefully by the trial judge at the retrial. Mr Mansfield submitted that there was no objection by the defence at the retrial to the Crown leading the evidence in relation to the Barbados incident because the defence themselves would seek to rely on what the complainant said in the Barbados incident as part of their case that the complainant was fantasising and making up all the allegations as against the appellant. But, submitted Mr Mansfield, that aspect of the defence argument was not reflected in the summing-up.

The facts

The complainant was aged 19 at the time of the trial and was a student at university. She told the court that the appellant came into her life as her mother’s boyfriend when she was aged about 10. She explained how she did not get on well with her mother who was, according to her, too disciplined and restricted. The appellant was much more indulgent and allowed her to smoke and drink alcohol. She felt that she could go to him for advice and could speak freely to him.

Count 1 Indecent Assault

The complainant told the court that in April or May 1996 her mother had to go into hospital for the treatment of bunions. By this time her mother had separated from the appellant but nevertheless the appellant came to the house in order to care for the complainant who was by that time aged 14. The complainant believed that from time to time the appellant and her mother continued to have sexual intercourse as the separation had been amicable. The appellant, according to the complainant, spent 6 weeks sleeping in her mother’s room, which was situated next door to her own. On one occasion, the complainant had slept through her alarm. The appellant came into her room to get her out of bed. He turned her towards him and began to kiss her on her face, neck and ears using his tongue. He lifted the covers. She was wearing a nightdress and a pair of knickers. He started to lick along her bikini line. She did not remember saying anything to him but was very shocked by what he had done. He then left and went off to work.

The complainant said that she later told her friend SD about what had happened although she did not say at that stage who it was who had done it. About two months later when she was away with S and the family, S managed to wheedle out of her who it was that had done this to her. She did not tell her mother as she did not want to cause trouble in the family. She did not know what to do about his behaviour and she accepted that she regarded him as one of her best friends.

In cross-examination she said that she had hoped that the one incident would be it, and that she would have found it hugely embarrassing to tell her mother what had happened. She agreed that she continued to visit his house and that they had remained friends. She had blocked out of her mind completely what had happened.

The Barbados incident

The complainant described how in May or June 1997 there was a wedding in Barbados of a member of the appellant’s family. The complainant went out to Barbados with the appellant and his son, her step-brother, J. There were about 25 people altogether and they went to a hotel that was set out in small blocks of scattered apartments. All three of them had one apartment to themselves which consisted of one bedroom with a double bed and there was a sofa-bed in the living room. She sometimes slept in the double bed with her brother and on other times the appellant took the double bed with her brother.

The complainant told the court that at the very outset of their arrival the appellant “came on to me”. He told her that he was attracted to her. She knew what he meant but she was confused about it. She was 15 years old at the time and had a boyfriend of her own but there had never been any serious sexual activity between them and she was a virgin at the time. The appellant also had a girlfriend at the time. He made suggestive remarks to her. She was upset by his change in attitude as she wanted him to be a friend and did not want him to be attracted to her. She burst into tears and told him that he could not be attracted to her. She told the court that he was 16 years older than her and was the father of a little boy whom she regarded as her brother. During the remainder of the time in Barbados she tried to continue as normal as possible as she did not want to raise suspicions or cause hassle. She was conscious of the fact that every other person in the party was a member of the appellant’s family. The appellant and his father had paid for the trip and she did not wish to appear ungrateful.

There was an occasion when they all went out on a boat called The Jolly Roger. The jury it seems were shown a video of the party that took place. The video showed a good deal of alcohol was consumed. The complainant in evidence accepted that she had seen the appellant kissing a former girlfriend during their outing, and others in Barbados, but denied that this had made her jealous. On the evening after the Jolly Roger outing they returned to the apartment and the appellant then tried to kiss her in a sexual way. She had walked away from him and said “No”. She was angry as she had already told him that she did not want this.

On the evening of the bridegroom’s stag night the appellant went out and the complainant and her brother went to a barbeque with all the women. They then returned to the apartment and went to bed in the double bed upon which her brother went to sleep. By this time she was very wary of the appellant due to his behaviour. The appellant returned to the apartment and complained that there had not been enough to drink at the stag night and that he was bored. He climbed into the bed and started to kiss her using his tongue. He wore a T-shirt and shorts or swim wear by this time. She said that she was aware that she was on holiday with his family and thought that if she made a complaint then no-one would believe her. She could not stop him at what he was doing and so she just gave in. He took off her shirt, kissed her breasts, put her hands inside her bikini and put his fingers inside her vagina. She tried not to think about what was happening and just blocked it out. He kissed her vagina and asked her to touch his penis which she did.

The examination-in-chief then went like this.

“…Or where did he ask you to touch him ? (A) On his penis. (Q) And you said you did. Why did you touch him? (A) Because I felt I had to; I had never had a sexual experience before and I thought it was something that I had to do. (Q) So you touched his penis. You said that he wanted you to put his penis in your mouth. Did you do that? (A) Yes. (Q) And did you do that of your own accord? (A) He asked me to. (Q) First of all, the touching of his penis, how long did that go on for? (A) I can’t remember exactly because I was trying to forget everything that was happening. Not for very long though. (Q) When he told you to put his penis in your mouth, and you did so again how long was that for? (A) Not for very long (Q) How did you feel whilst this was going on? (A) I didn’t like it. I didn’t know what else to do because I was powerless. He was the one who was in control.”

The appellant then, according to the complainant, went into the bathroom to clean his teeth. She took this opportunity to put her bikini pants back on. When the appellant returned he was naked and he took her bikini pants off again. He placed her legs, according to her, across his shoulders, and tried to put his penis inside her. It was very painful and he could not enter her so he turned her over onto her hands and knees and entered her from behind. She had nowhere to go and felt that she had to let him do it just to get it out of the way even though she felt disgusted. After he had entered her she felt horrible and she slumped down and moved away from him. She went to the area near the front door and he came after her and grabbed her face and put his penis inside her while they were standing and continued to kiss her. Eventually she got away from him and she was hysterical and was screaming and shouting. He said that if he had known that she had not wanted it then he would not have done it. She told him that he had known that she did not want it as she had told him so. In some way she felt guilty as he had a girlfriend and she had a boyfriend and she felt that she had betrayed both of them. His attitude was that it was just sex and that no-one would ever need to know. On the following day he told her “if you can’t laugh about it don’t do it”. He twisted it to make it appear that she had wanted it to happen although he had known perfectly well that she had not.

She wrote a letter to her friend CY and told her that something scary had happened between her and the appellant. The jury had a copy of the letter part of which read:

“The first night that we got here Pete told me exactly what he thought of me, which is quite worrying. I just have to keep saying, “No”. I’ll tell you what he said when I get back. Don’t mention it to anyone.”

The complainant told the court that this referred to his earlier comments about being attracted to her. There was also a second letter which had not survived but which CY agreed had been in the same envelope that mentioned that something scary had happened to her in Barbados. She said that this referred to the sexual intercourse that had taken place.

The Crown also drew the attention of the jury to another passage which read

“I never knew how much I needed everybody, don’t turn your backs on me now. As you say you never realise what you’ve got till it’s gone. Very true indeed.”

She told the court that this was a reference to the desperate state that she felt because of the way she had been treated by the appellant and that she felt alone in Barbados. In cross-examination she said that she had thought that nothing would happen as her brother had been present. She denied that she had said to Tara or Laura that she wanted to “shag Peter”. Tara and Laura were 12 years older than her and Laura, the appellant’s sister was about to get married and Tara was an ex-girlfriend of his. (Both Laura M and Tara P had told the court that she had said this when sitting around the swimming pool at the hotel on the night before the wedding. She had said that she fancied him and asked why he had her mother when he could have had her. Laura said that she had had a quiet word with her brother and said that he should be careful or to watch out as the complainant had a crush on him).

On returning home the complainant told CY and SD about what had happened and made them promise that they would not tell anyone. She did not tell her mother as she knew how upset she would be. The appellant still came round to visit her young brother. About 1 year later she spoke to him in the presence of S and said words to the effect of that he had taken her virginity while in Barbados. He did not say anything in response and did not care that she had told C and S. She admitted that she continued to regard him as a friend and as a source of cigarettes and advice and she regularly visited him at his house although quite often while she was with her friends. He treated her as though nothing had happened though sometimes she would catch him looking at her in a way which she recognised and he also groped her from time to time.

Count 2 the alleged rape

In May 1998 she was grounded by her mother and she had been angry with the appellant as he had agreed to the terms of her grounding. The appellant was still coming round to the house on a regular basis. On one occasion she was allowed to go over to his house, even though she was grounded, as there was a video she wanted to see. However she did not have enough money to get back from his house and as he had been drinking he could not drive her home and so her mother had agreed that she could stay the night. Alcohol was freely available and she had quite a few drinks and had become woozy. They were watching television and a porn channel preview came on. She was curious as to whether he had any porn video tapes. He would not show them to her but told her that she would be surprised by some of the things he did have. He asked if he could kiss her and she had told him that he could not. He was also drunk. He came around the back of the sofa to where she was sitting and kissed her neck. She told him no again but he carried on. She did not try to move away as it would have been pointless but she told him several times that she did not want him to do this.

Her memory was fragmented as she was more drunk than she had been before but they finished up on the floor. He lifted her top and kissed her breasts and pulled down her jeans. It was pointless to try and stop him. He asked if she was drunk and she said that she was not. He then asked her to let him take her upstairs and kiss her all over. She did not say anything as it had gone so far that if she had refused at that stage he would have got angry as he had on other occasions. She allowed him to lead her by the hand upstairs into his bedroom. Her jeans were off although she could not recall how. She only knew that she was naked and that she had not taken off her clothes. She tried to block out the incident as much as possible. He asked her if he could come in her mouth and she said no. She also refused to touch him. She felt that he could use her body but she wanted no part of it. She disconnected from what was going on. She could not stop him. She did not want to make him angry and his whole attitude made her feel bad. He again put her in an all fours position, touched her vagina with his fingers and tongue, put his fingers inside her and then inserted his penis into her vagina.

She told him just to do it but she had not wanted him to do it and he knew it. Had she been in control she would not have been there at all. When she had told him to just do it he had replied that he had protection. The next day she went to the bathroom to check herself as she was sore and he said “You know how to make a man feel wanted” which had been a sarcastic remark. He then said that it had to stop and that he did not want her to feel that she had to wear a chastity belt every time she came around. She thought that maybe he felt guilty and did not want her to feel threatened. She knew that what had happened was not natural and did not want to tell her mother as she saw it as her own problem.

In cross-examination the defence case was put that it was all a product of her imagination and fantasy. It was suggested that her behaviour in any event was such that it would lead to a genuine belief that she was consenting. She alleged that the incident happened before the appellant’s 34^th birthday, but on his birthday she had sent him a card with what was described as a very affectionate inscription inside. From May 1998 she said that she became increasingly angry about what had taken place. She spoke about it again to S and C. She agreed that there was one occasion when she had kissed him and which had surprised him, but she felt that it was something that she had to do. As time went on she realised that what was happening to her was sexual abuse. He was still sleeping with her mother from time to time and the complainant said that she felt very confused and brooded about matters. On one occasion there was an argument between the complainant and the appellant over an unrelated matter during which she told him that she hated him and asked “Don’t you know what you’ve done to me?” Her mother heard this and was troubled and asked what it was. The complainant was in floods of tears but worried about what would happen if the family broke up and what would happen to her brother. Therefore the outburst died down and was not discussed further.

Count 3 Indecent Assault

In April 1999 the complainant’s mother went to Dorset with her young son and left the complainant behind to catch up on her studies. The appellant was staying at the house that night and came to ask if she wanted to go drinking. She wanted food. She didn’t mind being with him in public so they went out and met his father in a pub where she had 2 or 3 Bacardi Breezers. She and the appellant then went to around 4 more pubs and she had eight or nine drinks over as many hours and she was very drunk. When she got back home she wanted to go to bed. However at this stage it appeared that her mother had returned as the car had broken down. The appellant helped the complainant up to bed where she collapsed. She remembered that he had tried to take off her jeans and that her mother had been there. She recalled that someone had said “What are you doing”. She woke a few hours later and went downstairs in a top and knickers and was surprised to find the appellant in the living room. Her memory was hazy due to alcohol but she remembered sitting next to him on the sofa and he started kissing her again using his tongue and putting his hands inside her knickers. She did not try to stop him and she was “still all over the place with the drink”. He put his finger in her anus and asked her if she liked it. She remembered that she was on the carpet and that he was touching her vagina. She then remembered waking up back in her bed still with the same top and knickers on. Her thoughts were “Oh God not again”.

Her mother was furious. The complainant thought that was because she was drunk but in fact it was something to do with the fact that a camcorder had been set up. The complainant felt sick when she heard this and thought that the appellant might have filmed what he had been doing to her. The appellant accepted that he had a camcorder on the floor which he had plugged in and switched on although not to record. The appellant, so he said, was worried that she had a crush on him after what his sister had told him and he needed the camcorder as protection to show that nothing untoward had happened. The complainant’s mother said in evidence that the camcorder was propped on the banister pointing through the door at the bed and that the red light was on. She said that she saw the appellant pulling off the complainant’s jeans so that she could see her knickers. She said that she was very angry and said “What the hell do you think you are doing?” She only got mumbling from the appellant as he also had been drinking. Her daughter had insisted that she could handle the matter.

Count 4 Indecent Assault

In June 1999 it was the birthday party of the appellant’s sister. By the end of the evening the complainant was merry but not really drunk and after returning home fell asleep on the sofa. She next recalled the appellant trying to wake her up and also trying to remove her trousers. She got away from him, put on a nightdress and knickers and was wearing a sanitary towel as she had her period. She then went to bed. A little time later the appellant came in and said “Can I wank over your arse”. The complainant told him to leave her alone but he got into bed with her and refused to leave. He put his hands in her knickers and placed his fingers in her vagina. She had pretended to be asleep but thought it best to pretend to wake. She had felt movements behind her that suggested that he was masturbating but he told her that his jeans were undone as his stomach was bloated. She told him to go or she would call her mother. He made some remark like “It’s alright when you want it”. Then he left. By this time she had decided to tell her mother. She had not told her everything that had happened as she had not wanted her to know. Originally there was disbelief but eventually her mother accepted it and she went to the police.

S D also gave evidence of the complaints that the complainant had made to her, and said that she too had also been sexually abused by a member of her family when she was aged about 6. When she and the complainant were about 14 years old she had told the complainant of what had happened to her and the complainant said that it had happened to her also, although she would not say who it was. S then said that later that year the complainant did tell her that when she was in Barbados the appellant had sex with her three times. It was very difficult for the complainant to talk about it and she was very embarrassed. The complainant said that she had not wanted to have sex with him and that it had happened in the bedroom when her brother was there. She also told of a further occasion on their return when the appellant had tried to get into her bed and that when she told him to get out he had asked her what her problem was and said that she had enjoyed it when they were on holiday. At that stage the complainant described almost continual sexual harassment that caused her to be visibly down or depressed from the time that she came back from Barbados. She was cross-examined. It was put to her that the account was either part of a sexual fantasy participated in by both girls or that she was just backing up the claims made by her friend the complainant that were simply untrue.

The defence case

The appellant was interviewed by the police and gave an account which he repeated in evidence before the jury. He said that all the allegations were untrue. He said that there had never been any sexual contact between himself and the complainant. There had been some kind of discussion on one occasion in the presence of her friend S when the complainant spoke of losing her virginity with somebody that she refused to name. His case was that the complainant had made up and was fantasising about each and every incident. In particular, in relation to count 1, he recalled a time when he had overslept and his friend had banged on the door. He woke the complainant up and told her that she would be late for school, but nothing else happened.

In relation to the Barbados incident he denied that he had told the complainant that he was attracted to her or had behaved in the way that she had described. There was no incident of sexual intercourse or sexual behaviour between them either during the holiday or when they returned home.

As regards count 2 he agreed that the complainant had come round to his house during a period when she had been grounded. He denied that he made an excuse to get her over to his house or that he had purposely drunk too much to prevent him driving her home. He denied any sexual activity.

As regards count 3 he accepted that there was an occasion on which he took her around a number of pubs and when she had become drunk. She was too drunk to undress herself and that was why he had started to remove her trousers, although in hindsight he thought that it would have been better to have left her alone. Afterwards he went down to the living room and left the next morning without having seen her again. He denied that there had been any sexual contact at all. The camcorder had been on so that when she woke in the morning and wondered what had happened he could have shown her that nothing took place. He said that he had not been thinking logically as a result of the alcohol that he had consumed.

As regards count 4 after the party he said that he had woken her up after she had fallen asleep on the sofa. She went to bed and he had not seen her again that night. He denied that any sexual contact had taken place. He had been told by his sister of the crush that the complainant had on him but he had not felt it necessary to take any steps to moderate his behaviour.

A witness, AC, was also called and described the appellant as a typical rugby player in that he “knew how to drink”. The appellant was nevertheless very responsible and did not drink when he cared for his young son. He was surprised to hear of the “pub crawl” that the appellant had taken the complainant on. When he met the family all together the atmosphere was always natural and relaxed.

Abuse of process

An application was made at the commencement of the retrial for the judge to stop the trial on the basis of abuse of process. The basis on which that submission was made related to certain material in two shoe boxes which had been in the bedroom of the complainant, seized by police prior to the first trial, and made available, albeit very late, to defence counsel at the first trial. Defence counsel at the first trial received this material either on the first or second day of the trial. The relevance of the material was that it was thought to support the defence case that the complainant fantasised about sexual matters. Defence counsel inspected the contents of the two shoe boxes and selected certain material out of the two boxes which she put to the complainant in cross-examination. Those items were copied and exhibited so that they were before the jury. Counsel for the appellant at that first trial did not seek any adjournment in order to have a further opportunity of inspecting what was in the boxes, and no suggestion was made, either at the first trial or on appeal from the first trial, that adequate opportunity had not been available to counsel for the appellant to inspect what was in those boxes.

The material that defence counsel selected was available to counsel for the appellant at the retrial and is in the bundles of documents prepared for this appeal. That material clearly provided a basis on which it could be put to the complainant that she did, either herself or with her friends, produce highly sexually suggestive material. Thus, it certainly laid a basis on which the defence of the appellant that the complainant fantasised could be put fairly to the complainant.

Unfortunately, between the first trial and the retrial, the shoe boxes, apart from the material that had been exhibited at the first trial, were returned to the complainant. It seems that the complainant then destroyed the contents of those shoe boxes. That of course laid the ground for defence counsel at the retrial, if the abuse of process argument failed, to cross-examine the complainant on the basis (a) that the material that was available demonstrated an ability to fantasise, and (b) that the destruction of the other material was on the basis that that other material would only support the possibility of the complainant fantasising.

The application to stay the retrial on the basis of abuse of process was that the appellant could not have a fair trial if he did not have the original material from the shoe boxes available. Furthermore, it was submitted that the police had an obligation to preserve the material (which on any view they did) and thus this was one of those circumstances in which the court should stay the proceedings on the basis of abuse of process. Reference was made before us to authorities such as R v Medway [2000] Crim LR 415 and R V Feltham Magistrates’ Court ex parte Ebrahim [2001] EWHC Admin 130, cases relating to videos from CCTV cameras having been mislaid.

No complaint is made about the test which the judge applied in this case. Where the application to stay is founded on the loss of material that might have been relevant, as the judge put it “it has to be apparent to the court that either there has been some malicious suppression of evidence (which is not suggested here), or that the loss of material is such as to make it impossible for the defendant to have a fair trial”.

There was no question of the police having deliberately or maliciously returned this material for the purpose of it being destroyed. That might have given rise to different considerations. It may have been negligent of the police to have returned the same, but that is possibly more with the benefit of hindsight than it would have been evident at the time. We say that because defence counsel had the opportunity to inspect the material in these boxes and had selected that material which they wished to put to the complainant at the first trial, and the police might have been forgiven for thinking that that was the only material that was relevant so far as the defence case was concerned. One can see with the benefit of hindsight that with new counsel coming in to represent the appellant the appellant was at some disadvantage in his counsel not being able to examine all the material from scratch.

The exercise which the judge had to conduct was a balancing exercise. There was the disadvantage to which we have referred. However, that was counterbalanced to some extent by factors to which the judge expressly referred i.e. that Mr Dampier, the police officer who had seized the material, and defence counsel who had previously represented the appellant, were available for the purpose of giving assistance as to what else might have been in the shoe boxes. There was furthermore the counterbalancing factor that it was possible that the appellant would be better off in the following sense. If the contents of the shoe boxes were still available that might have established that there was no material adverse to the complainant other than the material which defence counsel had previously selected. However, in the circumstances in which the contents of the shoe boxes had been destroyed by the complainant, the defence was able to make a powerful point that in addition to such material as the jury had seen, there might well have been other material which would have supported the case adverse to the complainant but the complainant had destroyed it. We think this last point outweighs the point made by Mr Mansfield in relation to the evidence Mr Dampier ultimately came to give, which was to the effect that he had serious difficulty in remembering what was in the shoe boxes; it further outweighs the point he made about the probability that counsel previously representing the appellant would have very little memory of what was in the shoe boxes by virtue of the time that had gone by.

In our view the judge was clearly right to rule that a fair trial was possible and not to stay the retrial on the basis of abuse of process.

Cross-examination under section 41 of the Youth Justice and Criminal Evidence Act 1999

In relation to the examination in chief which we have set out in quotation marks in paragraph 15 above, counsel for the appellant sought to cross-examine the complainant relying on what had occurred at the first trial. As will be seen from the quoted passage, the complainant in her evidence was saying that she “had no sexual experience before”, and by inference was suggesting that she had never indulged in sexual activity involving putting a penis in her mouth. At the first trial that evidence was given in almost precisely the same form. Without protest, counsel at the first trial were allowed to cross-examine the complainant by reference to the fact that she had admitted to the appellant’s sister in Barbados that she had in fact indulged in such a sexual activity during the previous summer in Cornwall when she was only 13. At the first trial the complainant admitted that she and another teenage friend had gone on to a beach in Cornwall and had given a “blow job” to two youths. The complainant also thus admitted that when she had suggested to the contrary in her evidence she was lying.

The question which arose at the retrial was whether section 41 precluded the judge giving leave for cross-examination of the complainant on the same basis as defence counsel had cross-examined at the first trial, and in addition on the basis that the complainant had admitted lying at the first trial.

The section was a new section and was being considered by those acting for the Crown and the defence and by the judge at a time before the decision of the House of Lords in R v A (No 2) [2001] 2 WLR 1546 had been published.

Section 41 of the Youth and Criminal Evidence Act 1999 states:

“(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court -

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied -

(a) that subsection (3) or (5) applies, and

(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either -

(a) that issue is not an issue of consent; or

(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or

(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar

(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence.

(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

(5) This subsection applies if the evidence or question -

(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).”

It will be seen from the structure of the above section that according to its express provisions there is an embargo against the adducing of evidence or asking questions in cross-examination about any sexual behaviour of the complainant unless either subsection (3) applies, in which event the further embargo imposed by subsection (4) will itself apply; or unless subsection (5) applies in relation to which it will be noted subsection (4) does not create any embargo. If the cross-examination can be brought within subsection (3) without subsection (4) applying, or within subsection (5), then the judge has a discretion to allow the questioning.

Mr Mansfield’s submission was originally two pronged. He wished to submit as one prong that the provisions of section 41(3)(a) applied in which event he would also wish to argue that subsection (4) should not be construed so as to have prohibited the asking of the questions. That argument would have faced the difficulty of the language of subsection (4). But, Mr Mansfield would have submitted that albeit the House of Lords when they decided R v A (No 2) supra did not have the circumstances of the present case in mind, the decision would have supported a submission that subsection (4) should be read down so as to allow the questions to be asked so as to make it compatible with Article 6 of the European Convention on Human Rights. He would have submitted words would need to be implied into the subsection similar to those suggested in paragraph 45 of Lord Steyn’s speech in R v A (No 2) supra.

There is however no need to get in to that territory because Mr Mansfield had a second prong upon which he relied, subsection (5) to which subsection (4) does not apply, and Mr Gratwicke for the Crown accepted that the situation in this case was covered by section 41(5). He accepted that the evidence in relation to which the defence were seeking to cross-examine was “evidence adduced by the prosecution about any sexual behaviour of the complainant”. He accepted that questions about whether the complainant had indulged in the sexual activity which she was asserting that she had not, were questions necessary to enable the evidence adduced by the prosecution to be “rebutted”. He further accepted that although such cross-examination would go to the credibility of the complainant as a witness, since subsection (4) was expressly confined to subsection (3), it must have been the intention of Parliament to allow the impugning of the credibility of the complainant as a witness when the evidence fell within subsection (5).

In those circumstances Mr Gratwicke accepted that the judge in fact had a discretion as to whether to allow questions to be asked of the complainant in relation to the activities which she had admitted at the first trial relating to the incident on the beach in Cornwall.

The judge in his ruling suggested that he was exercising a discretion but, it is again accepted by Mr Gratwicke that in reality that was not so. It appears from the submissions that were made at the time, and the interchange between counsel and the judge, that the judge did not take the view that the evidence fell within subsection (5) and that the judge did feel in fact prohibited from allowing these questions to be put to the complainant having regard to the fact that they related to her credibility.

Mr Gratwicke realistically accepted that if the judge had appreciated what was now being conceded by the Crown, that he did have a full discretion and that there was no embargo simply because the evidence might impugn the credibility of the complainant as a witness, then the exercise of his discretion would have been, and should have been, in favour of allowing the questions to be put, particularly in the light of the way matters had gone at the first trial.

Thus, Mr Gratwicke accepted that the judge was wrong in his ruling, the questions should have been allowed to have been asked, and the jury should have been aware that the complainant had not told the truth when she asserted she had never had any sexual experience whatever.

The Barbados incident

The complaint of Mr Mansfield on this aspect is that the defence did not resist the calling of the evidence in relation to all that happened in Barbados because they themselves wished to rely on the same. The defence wished to rely on the same for the following purposes. They wished to say that the evidence described various sexual activities attempted, all of which took place on a bed in which the 5 year old brother slept without being disturbed and that was simply incredible. They wished to assert that far from the Barbados incident demonstrating, as the Crown suggested, the complainant’s objection to any sexual activity, it was part of an incredible story in that if the complainant had reacted in the way that she said she reacted to the Barbados incident it was incredible that she would allow herself to be in the company of the appellant from time to time as she was thereafter. The defence wished to point to inconsistencies between what the complainant said in evidence happened in Barbados i.e. one act of sexual intercourse, whereas she had told her friends that she had intercourse three times with the appellant in Barbados. The defence wished to suggest that the complainant’s evidence in relation to the Barbados incident supported the defence case that the complainant was fantasising and had made everything up.

The complaint is that when the judge summed-up the matter to the jury, he dealt with the Barbados evidence in the following way:

“The evidence is put before you for two purposes, and two purposes only, and this is the only basis upon which that evidence is relevant to your consideration of his conduct, of Mr R’s behaviour towards Miss R in this country. The first question, the first relevance, is this …. was over, her reaction, in the defendant’s presence …. That evidence, if you accept it, may assist you to decide what her state of mind would have been on the second occasion that an act of sexual intercourse took place ….

And secondly -- …. If you accept her evidence about how she reacted on the first occasion, to determine the extent to which that reaction should have informed the defendant as to whether she was, or might have been, likely to have been truly consenting on the second occasion. ….

The second relevance of the Barbados evidence …. is that it is put before you by the Prosecution to assist you in assessing the truthfulness of her assertion that on this occasion also, the second occasion, she simply felt powerless to resist Mr R ….”.

So, it was submitted by Mr Mansfield, the jury were told that it was only for the above purposes that they should look at the Barbados evidence at all, and the judge did not remind the jury that the defence also relied on the evidence to support their case that this was all fantasy so far as the complainant was concerned.

Mr Gratwicke in response submitted that the judge made absolutely plain what the appellant’s case was, doing so from p.28H through to p.30D. The judge there made clear that the appellant’s case was that the complainant’s allegations were all the product of a teenage crush by the complainant and the product of a teenage fantasy that had been generated in her own mind by the complainant. He further submitted that the details of the evidence in relation to the Barbados incident was summed-up by the judge when dealing with the complainant’s evidence. He further submitted that the judge was not bound to make all the points which defence counsel would have made with considerable force in the final speech of the defence, as to the way in which the defence relied on the Barbados evidence as supporting their case of fantasy.

We think that Mr Gratwicke is right in his submissions. The judge is making clear in his initial directions on the Barbados incident that the Crown could rely on that evidence for only two purposes. That was an important direction to give. It would have been confusing to suggest that the defence in effect relied on the evidence in the sense of it being evidence for the defence. The judge does not have to put every argument of counsel as long as the defence of the appellant is amply explained. In this case the defence was amply explained and no valid complaint can be made that certain arguments of defence counsel was not repeated in the summing-up.

Other points

There were other points addressed in the supplemental skeleton argument of the defence. They were not pursued orally, and rightly so.

Safety of the conviction

The fact that questions were not allowed to be put to the complainant which should have been was an irregularity. What we have to consider is whether those questions and answers were so central to the appellant’s case that it must follow that the appellant had an unfair trial and that the conviction was unsafe. Mr Mansfield sought to make the questions and answers more central by arguing (a) that if it had been known by the jury that the complainant had on one occasion when she was aged 13 put a penis in her mouth, that would provide a basis on which she would have known how to fantasise about at least that aspect the allegations that she made against the appellant; and (b) although the cross-examination would have related to what the complainant was alleging had happened in Barbados (not the subject of a charge at the retrial), it would have been relevant to a further allegation in relation to count 2 (i.e. a charge the subject of a retrial) where she also alleged that the appellant asked if he could come in her mouth.

We take the view that the questions and answers were not central. They relate to an incident when the complainant was only 13 years old. They have to be viewed in the context of the totality of the very detailed evidence given by the complainant in relation to allegations spanning a number of years. The appellant putting his penis in the mouth of the complainant was not the real issue so far as the Barbados incident was concerned, nor the real issue so far as count 2 was concerned. Whether the complainant had been raped, and whether she was making up the allegation that she had been raped, was the real issue on count 2, and indeed had been the real issue in relation to the Barbados incident.

We have a transcript of the evidence of the complainant in this case. We have summarised a great deal of it in this judgment. The detail of that evidence was such that the jury must have been sure that what she was describing was no “fantasy”. If the complainant had admitted the incident on the beach in Cornwall when she was aged 13, that admission would have had to have been weighed in the context of the other compelling evidence. In our view it would have carried little if any weight in the context of the central allegations being made.

We do not think in the context of the whole that the inability of defence counsel to ask the questions which the judge ruled he was not entitled to ask, rendered the appellant’s trial unfair, and we have no doubt about the safety of the convictions. The Crown very properly submitted that the safety of the convictions should be tested simply by the points put forward by Mr Mansfield, and that no assistance should be gained from the fact that a jury on a previous occasion had found the appellant guilty with all the evidence in play. That is a very proper position for the Crown to take up. We have accordingly remained loyal to the Crown’s position.

We announced at the conclusion of the hearing on Friday 23 November 2001 that we were dismissing the appeal for the reasons that we would give in writing. These are those reasons.

- - - - - - - - - -

The Court was asked to certify the following question as a point of law of general public importance:

"Where evidence or questioning, pursuant to section 41(5) of the Youth Justice & Criminal Evidence Act 1999, has been wrongly excluded at trial, and is subject to a necessary pre-condition that the court must be satisfied that its non-admission might have the result of rendering a jury's conclusion unsafe on any relevant issue (section 41(2)), can a conviction obtained in such circumstances be regarded as safe particularly when the main issue is credibility and the excluded material concerns two incidents of perjury in the instant case?"

LORD JUSTICE WALLER: The question that has arisen at this stage is as to whether we should certify a question for consideration by the House of Lords and the consideration whether we should give leave to appeal to the House of Lords. The point that is raised by the question was not argued before us on the hearing of the appeal. It arises in this way. What is submitted by Mr Mansfield is that if a judge is going to give consideration as to whether cross-examination should take place under section 41 of the Act, which we considered in the main judgment, the judge would have to be satisfied, first, that the provisions of either subsection (3) or (5) of section 41 have been complied with and second he would have had to have been satisfied that a refusal of leave might have the result of rendering unsafe a conclusion of the jury.

The only point that was considered in the judgment was whether one of those subsections, (3) or (5), applied; and we held effectively on a concession by the Crown that subsection (5) did apply. No argument was addressed to the question of whether the judge should have applied his mind to the question of the safety or otherwise of the conviction if he refused or did not refuse leave to ask the questions. But we are inclined to think, even in the absence of full argument, that we would have ruled the same way as we have, ie that the judge would have allowed the questions to be answered on the basis that a refusal might have had the result of rendering unsafe a conclusion of the jury.

The question we would then have had to address our minds to was whether that conclusion would be inconsistent with a finding by this Court on an appeal as to whether the conviction was or was not unsafe. When we came to address that question, we held, as our reasons show, that in the context of the whole we thought that the conviction was safe. What is sought to be suggested is that there is some inconsistency between that finding and a ruling that the judge should have allowed the question to be answered because it might at that stage have had the result of rendering unsafe a conclusion of the jury.

We are of the view that there is in fact no inconsistency between those two situations. We say that because the judge is addressing the matter at an early stage of the trial and the language of section 41(2)(b) is the language of "might" have the result, whereas the Court of Appeal is addressing question in the light of all the evidence and the whole of the trial and is addressing the question whether the conviction is in fact unsafe. That would seem to lead to the conclusion that there is only one answer to the certified question.

But this Act is a new Act. There is a commentary in Archbold which suggests that the use of the word "unsafe" has been deliberately used. It would thus seem to us wrong not to certify the question. Accordingly we do certify the question as asked. On the other hand, having formed the view that we have, that the answer is as we have previously suggested, we do not give permission for leave to appeal to the House of Lords. That should be addressed by their Lordships.

MR MANSFIELD: My Lord, I am grateful.

LORD JUSTICE WALLER: We would be grateful if a copy of the transcript of that judgment could be made available with a copy of the transcript of this judgment.

MR MANSFIELD: Yes, thank you.

LORD JUSTICE WALLER: Thank you very much.