England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 12 May 2005

1. LORD JUSTICE MAURICE KAY: The appellant is 36 years of age. On 23rd July 2004 in the Crown Court at Maidstone he was convicted of an offence of rape. On the same occasion the jury acquitted him of an offence of possessing a firearm with intent to cause fear or violence. For the offence of rape he was sentenced to six years' imprisonment. He now appeals against that conviction by leave of the single judge.
2. The complainant in the case was born on 28th February 1986. She was therefore 18 at the time of trial. At the age of 15 or 16 she had become addicted to crack cocaine, and in order to fund that habit she commenced work as a prostitute in Rochester. She described in evidence two particular encounters with a man who she said raped her on the second occasion. The first time she had met him was at Ford Pit Hill. He had pulled up in a car when she was working as a prostitute. She had asked him if he wanted business and he had said that he did. She entered his car and he insisted on taking her to Gillingham. He said that he lived in Gillingham and worked at the Medway Maritime Hospital. She said the man had short dark curly hair and a bold expression on his face. He was - in her words - "half-caste" and was not wearing spectacles. He was smartly dressed, in a shirt and trousers, and the interior of his car was spotless. He drove to a road and to a house that had smooth white walls. The house was divided into two apartments and he lived in the upper apartment. She described a spacious kitchen and a glass topped dining table. She went into the bedroom and asked to be paid up front. She was given cash. The man undressed and used a condom, which she had provided. She said that he behaved like a gentleman and they had consensual sexual intercourse. That, then, was the first occasion.
3. She said that a few weeks later, early one evening, she was plying her trade at Rochester Railway Station. She saw the same car that she had seen at Fort Pit Hill and the same driver. He asked her to get into the car. She described it as a turquoise car with an emblem of a lion holding a flag. The driver said that he was in a hurry and that they would not be going back to his house but would be remaining in the local area. He drove to a car park surrounded by bushes and trees. They both climbed into the back of the car. She asked for money up front, but he said that he would give her the money afterwards. She insisted on money first, and he started to get angry. She then moved into the front passenger seat and as she did so she felt a hand on the back of her head. The man grabbed her hair and she hit her head on the back seat and window. She started crying. He said that he wanted sex but was not going to pay for it. He said that if she did not have sex with him he would hurt her. He took out his erect penis and asked her "to give him a blow job". She refused and started screaming. She then felt a metal object at the side of her head and saw a gun in his hand. She had not taken any drugs at this point. He started to pull at her trousers. No condom was used. She next felt that the man had penetrated her. He was hurting her and she was hysterical. She did not want to have sex with him. He then withdrew and put his trousers back on. She got out of the car and made a mental note of his car registration number. She said that, shortly afterwards, she saw some other working girls and told them what had happened, but they took no interest. She later went home to bed and had no intention of reporting the matter.
4. Some months later she spoke to Donald Brown, an employee of the Youth Offending Team in Medway, who had been helping her to find accommodation and to sort out her life. She told him about the rape. She had seen the same car days after the rape and had remembered the number initially as 'PE336 MRO'. That, it is apparent, would not be an accurate enumeration. She saw the car again and took the number as 'P336 MRO' and sent this, via a text message, to Mr Brown on 7th March 2003. She went to the police station. When she went to the police station she saw the same car again and the face of the driver and said that it was the same man.
5. She tried to identify the house to which she had been taken on the first occasion, but the house that she pointed out turned out not to be that of the defendant, although it was in the same part of Gillingham. It seems that at no point was she taken inside the house that she identified, nor was she taken inside the defendant's house by the police. She attended an identification parade on 13th October 2003 and immediately identified an image of the defendant.
6. She said that she had not gone to the police initially because she blamed herself for the incident. She had only mentioned the incident to Mr Brown off the record and had really had no intention of taking the matter to the police. That T.H.E.N. was her evidence.
7. The appellant was arrested on 25th July 2003. He was interviewed and he said that he had never had any dealings with prostitutes; he was simply not interested in them.
8. He gave evidence at his trial. He described living with his wife initially in Chatham and then moving to Gillingham in February 2002. He indeed worked at the Medway Hospital as a nursing assistant. He denied that he had had sexual intercourse with the complainant on any occasion. He was not the person who had picked her up at Ford Pit Hill, nor was he the person who had picked her up by Rochester Railway Station. He said that nobody else had driven his Astra car, which had the registration number which had been relayed by the complainant. He said that he looked after the car and washed it regularly, but he insisted that he was not guilty of any offence. He is a man of previous good character.
9. Those, then, were the accounts of the principal parties in this case, and, as we have indicated, the jury accepted the complainant's account of rape but did not find the appellant guilty of the firearm offence.
10. On behalf of the appellant Mr Haynes' seeks to raise four grounds of appeal, and in relation to them it will be necessary to say a little more about parts of the evidence.
11. The first ground of appeal relates to an occasion earlier than the first time the complainant was describing being picked up in Ford Pit Hill. Before the case was opened to the jury Miss Horlick, on behalf of the prosecution, sought a ruling from the judge that she be permitted to open to the jury, and thereafter call, evidence to establish that on 13th April 2003 the appellant had been seen by a police officer in his car by Rochester Railway Station in the early hours of the morning in conversation with two working prostitutes. It is not suggested that any transaction was effected on that occasion. What happened was that a police officer intervened and spoke to the appellant - for it was admittedly he. He gave an account of simply being lost and asking for directions. The officer, clearly not accepting that account, warned the appellant that if he was seen in the area again he would be arrested for kerb crawling.
12. The prosecution submission was that, because in the interview the appellant had maintained that he had no interest whatsoever in prostitutes and by way of anticipation he was likely to say that in evidence, the prosecution were entitled to adduce the evidence in order to rebut that assertion. The defence sought to resist that submission, arguing that the evidence was irrelevant and therefore inadmissible, or, alternatively, that it ought to be excluded, by inference, under section 78 of the Police and Criminal Evidence Act 1984.
13. The judge said this:

"I am satisfied that this evidence is relevant and admissible for the two reasons which were advanced to me by the Crown."

Mr Haynes sought clarification as to whether the judge was ruling that the evidence was not hearsay, and the judge indeed confirmed that.

14. Mr Haynes repeats the same submissions in this court. In our judgment the evidence was undoubtedly relevant and admissible. The prosecution were on notice that this man of good character was asserting that he had no interest in prostitutes. He had said that in his interview and was likely to say it in evidence. In those circumstances the relevance of the evidence is plain to see if, undisputed and accepted by the jury as evidence of consorting with prostitutes, it would refute the evidence of a lack of interest in such activity. That was a matter of some importance in the context of this case.
15. We have been taken to the details of the evidence because one of the points Mr Haynes seeks to make is that in a sense the evidence ought not to have been admitted because it was evidence of the police officer's opinion as to what was going on in the street. It seems to us that that submission is not well founded. What happened was that the police officer gave evidence of what he had seen at 4 am in the red light area of Rochester. He had given evidence which undoubtedly referred to the appellant and his car, and he had given evidence of a kind which justified the inference that the driver was not simply stopping to ask for directions but was stopping to pursue an interest in what the prostitutes had to offer. It is the case that the appellant later gave evidence reiterating his lack of interest in prostitutes and reiterating his innocent explanation for being where he was and talking to the women with whom he was talking. It is not necessary to become involved in more of the detail than that; it was evidence that was relevant and admissible.
16. It is not wholly clear that the judge's attention was drawn specifically to section 78 and the exercise of a discretion to exclude. We shall assume that it was and that the judge was declining to exclude the evidence under section 78 on the basis that it was not {}productive of the unfairness, having regard to the interests of both parties, which would necessitate that result. In our judgment that would be a lawful exercise of his discretion. It was probative evidence if the evidence of the police officer was accepted and the evidence of the appellant was rejected; it went to an issue that had been raised and was to be raised by the defence. It was potentially an important issue having regard to the entire context of the case, and we cannot conclude that any discretion was exercised unlawfully.
17. It is the second ground of appeal which led the single judge to grant leave in this case. It relates to the cross-examination of the complainant. Mr Haynes very properly raised with the judge, in the absence of the jury, certain lines of questioning that he wished to pursue with the complainant. Some of those lines were concerned in a broad sense with the previous sexual experience of the complainant and were thought (at least possibly) to raise issues under section 41 of the Youth Justice and Criminal Evidence Act 1999. The origin of the intended questioning appears to have been some disclosed but unused material of which we have seen a typed copy. It suggested that Mr Brown had said to someone else that there were two occasions on which the rapist had assaulted her: the first time by strangling her, the second time by the production of a gun. That, of course, conflicted with the complainant's evidence that on the first occasion the man had behaved like a gentleman.
18. So far as that was concerned, Mr Brown had made a statement making it clear that what the complainant had told him was consistent with what she was later to tell the court in evidence and not with what appeared in the unused material hearsay document.
19. The other proposed questions related to the possibility that the complainant had made allegations of rape on one or more previous occasions but that they had been false allegations. The source of that was the same unused material. There is a reference of something said to have been stated to Mr Brown about a gang rape but about which he was not asked to make a further statement, and there was a reference attributed to the complainant's father suggesting that there had been "an alleged rape incident" two years previously. In the event the judge would not permit those lines of questioning. Mr Haynes submits that he was wrong to exclude them.
20. It is well known that problems of questioning about previous sexual experiences which may or may not have been truthfully recounted present difficulty in this area. The starting point is section 41 itself, which provides as follows:

"(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 ...

(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."

21. In making his application to the trial judge Mr Haynes made it totally clear that he was not seeking to elicit material in order to damage the complainant's sexual reputation - she was, after all, a working prostitute. He made it clear that his purpose in seeking to ask the questions was to elicit evidence that the previous allegations were false and that, on that basis, the present allegations being considered by the jury were also the more likely to be false. In this difficult area we have considered the judgment of this court given by Keene LJ in the case of RT and MH [2001] EWCA Crim 1877 and in particular paragraph 41. He said this:

"However, it is open to a judge to guard against abuse of the system. The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them. It would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant's past sexual behaviour as such under the guise of previous false complaints. But in any case the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements were not met, then the questions would not be about lies but would be 'about the sexual behaviour of the complainant' within the meaning of section 41(1). The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue. That may not provide a watertight guarantee that in every single case evidence about the complainant's past sexual behaviour will be excluded, but it would normally prevent the sort of danger to which we have referred. We understand that in the present cases there is a proper evidential basis for the questions which the defence seeks to put."

22. In his ruling in the case before us the judge said this:

"Mr Haynes conceded that while there was an evidential basis for asserting that the allegations contained in the fourth, fifth and sixth of his proposed questions had been made there was no evidential basis for asserting that those allegations were untrue. Nevertheless, he wished to ask the questions and if the complainant said that the allegations were true to underline the fact that none of the allegations was taken ultimately to court, his ultimate purpose being to suggest to the jury that the complainant had been lying when making those earlier allegations and was lying about the present allegation which the jury are trying."

23. It seems to us that the concession that was made by Mr Haynes was very properly made. There simply was not an evidential basis for asserting that the previous allegations were false. Indeed, the material that was in the hands of Mr Haynes and which we have seen is extremely unclear as to how many allegations had in fact been made. On one perfectly proper construction, it may be that the several references are to the same allegation. Moreover, although Mr Haynes wished to investigate the fact that the allegation or allegations had not been taken to court, there is absolutely no material that was available to him or to the judge or to us to suggest that that was as a result of their having been admitted to be or found to be false.
24. On a proper analysis it seems to us that the very asking of the question brought the matter within section 41. Once it was in that domain then section 41(4) attached, because, as had been made perfectly plain by Mr Haynes, his purpose for asking the question was to seek to impugn the credibility of the complainant. He was seeking to establish that she had not been giving a reliable account of the appellant and indeed her very description of being raped at all was not accepted by the defence.
25. Mr Haynes seeks to overcome the classification of his line of question as being concerned with the credibility of the complainant by reference to what this court said in the case of Funderburk (1990) 90 Cr App R 466 at page 475, namely:

"... where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point."

26. All that preceded the present legislation. Section 41(4) plainly predicates a situation in which the court can identify a line of questioning as being for the purpose of "impugning the credibility of the complainant as a witness". That clearly was the sole purpose of the proposed questions in the present case. There was no intention to damage the sexual reputation of the complainant. The purpose was to establish her as a maker of false allegations of rape. That, in our judgment, is undoubtedly a matter of credibility rather than being related to any substantive issue between the prosecution and the defence in this case.
27. As the questions were not permitted to be asked, no one will ever know what the answers may have been. It would be perhaps surprising if they had been admissions of falsehood. If the matter fell to be considered outside section 41 as a result of the answer that was given by the appellant, had that situation arisen then it would have fallen squarely within what Keene LJ said in the passage to which we have referred. The fact is, as Mr Haynes has rightly conceded, he did not have a proper evidential basis for asserting that the previous allegations were untrue. In the circumstances we consider that the ruling of the judge at all stages on this issue was correct. It is pertinent to observe that the purpose of the legislation is not simply to preserve the sexual reputation of a complainant, it is to protect her from having to relive previous experiences and ordeals in the witness box save to the extent permitted by that section. As we have indicated, in our judgment the section does not permit what Mr Haynes was seeking nor does the approach indicated by the case of RT and MH, see also the case of C and B [2003] EWCA Crim 29.
28. Finally, we come to the third and fourth grounds of appeal, which Mr Haynes frankly concedes would be worth little as free-standing grounds of appeal. He seeks to say that the unsafety of the conviction is established by the cumulative effect of the matters to which we have already referred and the matters to which we are about to refer.
29. The third ground of appeal is expressed in this way in Mr Haynes' skeleton argument:

"During his summing-up, the learned judge wrongly invited the jury to speculate as to whether the explanation for incorrect details of the applicant's flat supplied by the complainant was that she may have become confused due to the large number of addresses she may have visited as a prostitute. Although the learned judge agreed to instruct the jury to disregard his comment, there is a danger that the jury may have wrongly adopted the suggestion."

30. We agree that the comment was not an appropriate one. Indeed, we infer that the judge also agreed because in due course he directed the jury in the following terms:

"... before the short adjournment I commented upon the possibility that [the complainant] might have been with her other clients to other flats or houses and seen other furniture or furnishings. I have reflected upon that comment and I direct you to ignore it and not to consider that possibility because you would be speculating and guessing, which the jury must not do. You decide the case on the evidence which you have heard."

31. In our judgment that was sufficient to remedy the problem that had crept into the summing-up. There is no sustainable ground of appeal by reference to that sequence of events.
32. Finally ground 4: this is built on a criticism of a form of questioning of the complainant by counsel for the prosecution. The complaint is that in part of her examination in chief counsel referred to the rapist as "the defendant", although that of course was the very issue in the case. As she candidly accepts, to the extent that she did so, she ought not to have done so. There was complaint made about it to the judge and he dealt with that in his summing-up. He said that the question had been asked "When did you first meet the defendant?" He went on to say:

"The question should not have been asked in that way, because put in that way it carries the implication that the person she met for the first time had consensual sexual intercourse with and subsequently met again, only to be raped at gunpoint, was indeed the defendant. In other words, this question preempts the very issue which you are here sworn to try."

The judge gave a further explanation as to all that, and, as with the previous ground of appeal, in our judgment what he said was sufficient to remedy the difficulty.

33. It follows from what we have said, in our judgment, none of these grounds of appeal, taken separately or together, point to the conviction being unsafe. In our judgment there was a strong case against this appellant in any event. True it is that the complainant was a troubled young woman, with problems of drug addiction and prostitution, but the evidence that she had given included a number of features which it would have been extremely difficult for her to have given if she had not been giving an essentially accurate account. She was right about the employment of the appellant; she was right about her description of the car, its tidiness, its registration number and its ownership by the appellant. It is significant that the place to which she said that she was taken was not close to where she was picked up on the first occasion but was in Gillingham and indeed in the very part of Gillingham that the appellant inhabits. It is true that the house she pointed out turned out to be a house that was not his, but, as we have indicated, she was not taken inside that house so as to confirm or refute her initial identification. She did describe aspects of the interior, including a free-standing wooden mirror in the bedroom, which coincided with an item in the appellant's actual bedroom. There were other aspects about which her description was not accurate. However, one must not forget that she gave a physical description of the man which closely matched that of the defendant and even though it was a year later she had no difficulty in picking him out in an identification procedure.
34. In our judgment this was a safe conviction and the appeal against conviction is therefore dismissed.
(Submissions re: appeal against sentence then followed.)
35. LORD JUSTICE MAURICE KAY: We now briefly consider the matter of sentence, the trial judge having sentenced the appellant to six years' imprisonment.
36. We have considered that sentence in the light of the Millberry guidelines. It seems to us, as the judge accepted, that there were no aggravating features apart from the age and consequent vulnerability of the complainant. Against that, one has to take into account the fact that she had agreed to have sexual intercourse with the appellant, not only on a previous occasion but also on the occasion in question, albeit that she changed her mind when a dispute arose about payment. The judge accepted that such violence as there was did not exceed that necessary to carry out the rape: no medical attention needed to be sought by the complainant; she recommenced work as a prostitute within two or three days.
37. We also bear very much in mind that the appellant is a 35-year-old man with no previous convictions and indeed with, until these events, a positive good character. Balancing those factors out it was not appropriate to go beyond the sentence figure of five years. Accordingly, we shall allow the appeal against sentence, quash the sentence of six years and substitute a sentence of five years' imprisonment.