England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
COURTS MARTIAL APPEAL COURT

		Royal Courts of Justice Strand London, WC2 Thursday, 24th June 2004

1. LORD JUSTICE KENNEDY: In May and June 2002 in the Crown Court at Birmingham, this appellant was convicted of four counts of rape, one of which alleged rape per anum and two counts of robbery. He was sentenced to a total of 15 years' imprisonment and on 13th May 2003 his appeal against sentence was dismissed.
2. The Court did, however, indicate that there might be a viable ground of appeal against conviction and on 24th February 2004, a different constitution of this Court gave the appellant leave to appeal against conviction.
3. The appellant is 45 years of age. The prosecution case against him was that, being a large and powerful man, in 2000 and 2001 he had raped, robbed, falsely imprisoned and assaulted a number of women prostitutes in Birmingham. The original indictment contained 41 counts. It was reduced to 19 counts for the indictment which was placed before the jury. There were 12 alleged victims named in those 19 counts.
4. As we have said, verdicts of guilty were returned against the appellant on six counts which concerned five victims. He was acquitted on six other counts and the jury was unable to reach a verdict in relation to the remainder.
5. With one exception, which for present purposes is not material, because there was no agreement in relation to that count, all of the counts which alleged serious sexual offences were specimen counts. It is the judge's direction as to how to approach specimen counts which gives rise to this appeal.
6. What the judge said was this:

"Some times separate criminal acts which each constitute the same criminal offence may be identifiable separately by the circumstances surrounding them, or by some other feature, such as a date or a place. Sometimes though these repeated acts do not stand out separately from one another in this way. In either case, a single count may be included in the indictment as a specimen count of those repeated criminal acts. Where the incident which you are considering in relation to a specimen count is one which is identifiable separate from the others, you may only convict upon that count if you are sure that the defendant committed that offence on that particular occasion.

On the other hand, if the incident cannot be identified separately, you may convict on the specimen count if you all sure there was an occasion when the defendant committed an offence as alleged in that specimen count."

7. The judge had given to the jury a written note of his directions in law and the wording in that written note is almost identical to what he said in the passage which we have just quoted. We interpose to say a word about the written note. It was provided, we are told, to counsel, at quite an early stage, before final speeches had been made, and counsel were invited to make any representations they wished in relation to the directions in law which the learned judge proposed to give. That was, in the view of this Court, an entirely proper and helpful step for the judge to take.
8. One of the reasons for taking that step is to ensure that this Court is not troubled, so far as possible, with disputes as to whether directions in law were right or wrong. Of course, as Mr Singh, who did not appear below, but who appears before us, submits on behalf of the appellant, if a direction is wrong this Court will have to consider its effect, even if the point was not taken below. But The fact remains that this Court is and will be slow to interfere where responsible counsel at trial did not think there was any error.
9. We return to what the judge said. In the written note which he gave to the jury the passage which is relevant reads as follows:

"Sometimes separate criminal acts which each constitute the same criminal offence may be identifiable separately, by the circumstances surrounding them or by some other feature such as a date or a place. Some times though, these repeated acts do not stand outside separately from one another in this way. In either case, a single count may be included in the indictment as a specimen count of those repeated acts. Where the incident which you are considering in relation to a specimen count is one which is identifiable separately from the others, you may only convict upon that count if you are all sure that the defendant committed that offence on that particular occasion. On the other hand, if the incident cannot be identified separately, you may convict on a specimen count, if you are all sure that there was an occasion when the defendant committed an offence as alleged in that specimen count."

10. What is submitted by Mr Balbir Singh, for the appellant, is that the judge's direction, in its final sentence, was too general. It failed to make it clear to the jury that they must be all be agreed as to the essential ingredients of the offence. As he put it to us today, if they were sure that within the time span the offence was committed, they also had to be agreed as to the occasion on which it was committed. At another stage his submission was that there was a need to have unanimity as to the occasion on which the offence was committed.
11. In the skeleton argument, for the purposes of this appeal, Mr Singh put it this way: this was a material misdirection, in that the jury could only convict on a specimen count if they were all sure that the applicant had committed the offence contained within the specimen count but, all were agreed as to the same occasion.
12. It is clear from what was said first by Hodgson J in R v Moore and by Lord Ackner in the same case that whether or not a direction of the kind envisaged in the authority of R v Brown (1983) 79 Cr App R(S) 155 has to be given, depends upon the nature of the case both for the prosecution and for the defence. Furthermore, that such a direction will rarely be required. Lord Ackner, in Moore (1988) 86 Cr App R(S) 234, at 252, said:

"Clearly each ingredient of an offence must be proved to the satisfaction of each and every member of the jury, subject to the majority direction. It is equally essential that the jury be directed in a manner easily comprehensible and devoid of unnecessary complications. Whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury's satisfaction each ingredient of the offence, must depend essentially upon the precise nature of the charge, the nature of the prosecution case, of the defence and what are the live issues at the conclusion of the evidence."

13. We have had our attention helpfully invited not only to Brown and to Moore, but also to two other authorities, R v Mitchell (1994) Crim LR 66 and R v D [2001] 1 Cr App R 194. There are a welter of authorities in relation to this aspect of the law. But the authorities to which we have been referred distil the principles as well as any. We therefore turn to the counts with which this appeal is concerned. Counts 1 and 2 concerned the same young woman, KM. One count alleged vaginal rape and the other anal rape. She said that the appellant, who knew her, had at the end of 2000 held her prisoner and sexually abused her for weeks until she was eventually able to attract the attention of people outside. He agreed that she had lived with him during that period, but contended that all sexual activity had been consensual.
14. Count 10 related to another young woman, PL. She met the appellant in late 1999 and initially she was happy with the relationship which she had with him. But it soon soured. She lived with him and, according to her, he became violent to her and repeatedly raped her. Again, it was the defence case that there had been a consensual relationship between them but that in this case, the police had promised PL money if she provided evidence against the appellant.
15. Count 12 concerned another young woman, AA. The appellant met her in August or September 2000, and she too ended in his flat. From then on she too was said to have been subjected to domination and rape. It continued on and off until she managed to leave the Birmingham area. Once again, the appellant admitted the relationship, but not the alleged offending.
16. Clearly, each young woman said she had been vaginally raped and in the case of KM raped per annum more than once. There was not much to distinguish one incident from another. The prosecution, and this is of importance, did not seek to make such a distinction on the facts.
17. The appellant, on the other hand, said that there was no sexual activity without consent. In those circumstances, it is important to remember that the need for a direction such as was given in the case of Brown, only normally arises in one of two distinct circumstances. First, where there are ingredients of the offence which have to be proved by the prosecution and which the prosecution put forward on alternative basis. For example, there may be representations relied upon in a case of obtaining property by deception, and the jury need to be told that they must be agreed as to the relevant representation or representations, and their causative effect. That is the situation where the jury is dealing with a necessary ingredient of the offence itself.
18. Secondly, there are cases when factually the prosecution is relying upon separate incidents. The offences alleged to have been committed on separate identifiable occasions. Where that situation arises, the jury needs to be told that, if they find the offence proved, they must be agreed as to which of say two occasions the offence was in fact committed.
19. The present case, as we have indicated, for the most part fell squarely into the latter category, that is to say it was a case which was factual but where the Crown were unable to identify occasions different from each another, when the offence was said to have been committed.
20. The position was in fact different in relation to count 11, where no verdict in the end was returned, because in relation to that complainant, there was only one occasion when she said that she had been anally raped.
21. In those circumstances, it seems to us that the approach adopted by the judge was not merely free from criticism but entirely right. He distinguished and rightly distinguished between cases where, first, the same criminal offence may be identifiable by circumstances surrounding them, or by some other feature, such as a date or a place, and secondly, repeated acts lacking identifying features. Either, as he pointed out, either type of case could feature in a specimen count. But if the jury was considering an alleged offence in the first category of case, they were told, and rightly told in terms, that they could only convict if they were all sure that the defendant committed the offence on that particular occasion. On the other hand, if the alleged offence lacked identifying features and they were considering allegations in the second category of case, then they could convict if they were all sure that there was an occasion when that offence was committed. They could not be thinking in a material way about different occasions precisely because there was really nothing to separate one occasion from another. There was no way of identifying the separate occasions. Accordingly, in our judgment, the direction given by the trial judge was correct and this appeal against conviction must therefore be dismissed.