England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT LEICESTER
HIS HONOUR JUDGE DE MILLE AND A JURY

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/03/2005

Lord Justice Judge:

1. On 31st October 2003 in the Crown Court at Leicester, before His Honour Judge de Mille and a jury, Roderick Flint was convicted by a majority verdict (10:2) of 3 specimen counts of rape, and two specimen counts of gross indecency with a child. He was sentenced to a total of 14 years' imprisonment.
2. At the conclusion of the hearing on 8th February, we allowed the appeal, quashed the conviction, and ordered a new trial.
3. The complainant in this case was the appellant's step-daughter. Her mother met the appellant when she was aged between 5 and 6 years old. He was some 13 years older than she was. They all lived together in a three-bedroomed house. According to the complainant, she was subjected to systematic sexual abuse and repeatedly raped by the appellant from 1979 to 1988, starting when she was about 7 years old, and continuing throughout her childhood and puberty until she was 16. She was abused in her bedroom, in the car, indeed virtually everywhere, including the attic. The sexual abuse extended to organising the complainant to play sexual games, with a little friend, while he spied on them from a hole he had made in the attic.
4. Grounds of appeal relating to the attic, and the space available in it, and possible further evidence from the complainant's then childhood friend were raised before us. In the result we did not have to deal with them. The critical issue in the appeal arose from the judge's decision that s 41 of the Youth Justice and Criminal Evidence Act 1999 precluded the admission of evidence or cross-examination of the complainant about part of her sexual history.
5. S 41 provides:

"(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

….

(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)."

6. We must begin by putting the judge's decision into its factual context, basing ourselves on his ruling that part of that history could be adduced in evidence.
7. The complaint was long delayed. It was not made until early 2002, shortly before the complainant's thirtieth birthday. When it was investigated, and later at trial, when he gave evidence, the appellant consistently denied that any form of sexual activity had taken place during the complainant's childhood or her adolescence. The unusual feature of the case, agreed by them both, was that between about 1991 and 1995/6 when the complainant was aged between 18 or 19 and 24 years, and the appellant between 30 and 36 years, they lived together and shared a full consensual sexual relationship. Essentially, the complainant replaced her mother in the appellant's bed, and her mother slept in the bedroom vacated by the complainant's brother. Thereafter the two of them went on holiday together, sending postcards to the complainant's mother, as full partners.
8. At trial, the complainant described how her mother was informed of the exchange. She said:

"Rod [the appellant] wanted me to tell her that we had a relationship. I remember going into the kitchen … and trying to tell her and then I couldn't. So I ran upstairs crying and I think then Rod must have told her. All I said was: "There's something going on", that was all the words I could get out, and my mum came up to me and she said: "What?". I don't know if I told her at that point or Rod had told her at that point but she said: "Do you love him?" and I said: "Yes", she says: "Well, as long as you're happy, I'm happy" and that was how it went."

9. Counsel for the Crown returned to the moment when the complainant had said to her mother that she loved the appellant. He asked:

"… You said that you said to your mum, in answer to a question, yes, you loved him, is that right, you did say that?

A: Yes.

Q. And was that true?

A. Yes, in a way, not sexually but I did love him …

Q. Can you explain what you mean?

A. He protected me. I felt protected. I felt safe. I never wanted anything sexual to happen."

10. In answer to the defence contention that the complainant would not have entered into a long consensual sexual relationship with the appellant, living with him as his partner, when he had so dreadfully abused her as a child, the Crown's response was that her behaviour was consequential on "grooming". This adult sexual relationship followed the pattern of childhood abuse, when the complainant did what she was instructed or pressurised to do. Sexual activity with the appellant had been part of her life for so long that she submitted to his control. She was passive. In cross-examination she was asked why she continued to live with the appellant when she was aged between 20 and 24, and what had stopped her leaving him at any time. She replied:

"I was just scared.

Q. You were just scared.

A. Yes.

Q. Scared of Rod?

A. Scared of what he might do.

Q. Scared of what he might do. And so the whole time, until aged 24 you were living under his domination?

A. Yes.

Q. Unwillingly?

A. Yes.

Q. Unhappily?

A. Yes."

11. She reiterated that until the age of 24 she was the victim of a sexual abuser, and that she was unhappy and was reluctant to engage in sexual activity with him. In the context of the adult relationship she was asked in terms whether the appellant was her lover or her abuser, and she replied, "He was always my abuser". She insisted that she did not want to have sex with him and only did so because she was scared.
12. The appellant asserted that the complainant had initiated the sexual relationship between them when she was about 18 or 19 years old. Her complaints were false, motivated by a desire for revenge after he had brought the relationship to an end. He was asked whether he dominated her, or whether it was an equal partnership between a man and woman. He replied:

"It was equal partnership. She was with me, well she was with me when she wanted to be with me."

He did not pressurise her onto a variety of different holidays with him. The attraction between them was mutual. Sexual intercourse took place regularly between them. He was asked:

"Did she ever show any disinclination at all to engage in sex with you?

A. Not in the slightest."

13. When he was cross-examined, the appellant denied that he was totally to blame for the adult relationship, or that he had groomed or dominated her. He described the complainant as his partner at the time, a grown woman, with whom he had a shared relationship.
14. The importance of this conflict of evidence is readily appreciated. If the complainant enjoyed a full and happy adult relationship with the appellant, neither being raped nor dutifully submitting to his dominant control, although not amounting to positive proof that she had not been abused as a child, the relationship would have called into question how she could ever have brought herself into enthusiastic participation for a number of years with her former abuser. If the jury accepted that the adult relationship was mutually pleasing, and in particular pleasing to the complainant, then that provided evidence which might serve (depending on the jury's view) to support his denial that there had been an abusive relationship between them when she was a child. If on the other hand, after replacing her mother, the complainant had done no more than submit to the appellant, because she was "scared" of and dominated by him, then the adult relationship was consistent with her complaint and represented no more than the logical extension of years of abuse. On this basis it would have been astonishing if her complaint had been motivated by a desire to revenge herself on the appellant because he had brought their relationship to an end. It would have come as a relief that he had.
15. We must now examine the judge's ruling, sought by counsel for the appellant before the start of the trial and before the complainant was asked any questions about the adult relationship. He suggested that it was relevant in two ways. First, an adult sexual relationship based on mutual attraction was inconsistent with the complaint of childhood abuse, and second, the ending of that relationship by the appellant motivated what he asserted was a false complaint of childhood abuse. After examining s 41 of the Youth Justice and Criminal Evidence Act 1999, and considering the decision of the House of Lords in R v A (No. 2) [2002] 1 AC 45, the judge concluded that the fact of the adult relationship could be adduced before the jury. He appeared to focus on what he described as a "cornerstone" of the appellant's case, that the complainant's false allegations were motivated by malice, following his decision to end their relationship. He concluded that if the appellant were prevented from asking questions about the adult relationship, he would be unable to advance this crucial element of his defence. Any conclusion by the jury on this issue adverse to him when they were ignorant of the adult relationship would be "unsafe". We agree with the judge, although we are not entirely sure whether his ruling expressly addressed the full extent of the potential relevance of this evidence.
16. Before us, Mr Robert Brown for the Crown, in a thoughtful and helpful submission, accepted that the judge's ruling was right. Without this evidence the jury would have had to approach their decision as if the childhood abuse had somehow come to an end in a wholly unexplained way, and that the complainant had then, again inexplicably, delayed 14 years to make her complaint. At the same time, they would have been ignorant of the appellant's case that the complainant had a specific motive deriving from the ending of the adult relationship for making a false allegation.
17. In his ruling however, the judge refused to allow evidence to be adduced or questions asked of the complainant about some photographs and two video tapes in the appellant's possession. The video tapes were self-made by the complainant as an adult, apparently using a video camera. They were divided into twelve parts, some showing the complainant, in effect stripping for the appellant, for use in their lovemaking, and some pornographic, showing among other things, the complainant masturbating, with an accompanying soundtrack in which her voice can be heard suggesting in coarse language how much she would prefer to be having sexual intercourse with the appellant. Sir Jonah Walker-Smith for the appellant suggested that the complainant is entirely happy during the strip tease parts of the video, and thoroughly enjoying what she is doing in the pornographic parts. The Crown accepts that she "appears" to be happy, and "appears" to be enjoying herself. It was not necessary for us to watch the videos, but we were provided with useful material with which to make a preliminary assessment between the two contentions.
18. Some photographs taken when the couple were on holiday were exhibited. The judge excluded any titillating photographs. We were provided with them. The precise details do not matter, but these photographs show the complainant posing in a number of different ways for the appellant. Taking two of the last three photographs in the bundle, photographs 28 and 30, as examples, one impression given by them may very well be that the complainant was totally at ease and entirely happy, and indeed thoroughly amused when the appellant took these photographs of her, in one case topless running towards him on the beach, and in another posing naked with her jeans pulled halfway down her thighs with her back to him while leaning forward against a wooden fence, with her face turned towards the appellant's camera.
19. The judge was asked to consider a further set of topless photographs taken by the complainant herself in a photograph booth, in the absence of the appellant. These photographs lacked any probative significance, and we need not refer to them again.
20. The complainant's witness statement described the purchase of the photographic equipment. She was older than 21 years, but no older than 24. She said that as she made the videos, she thought that she would have to spend less time "actually having sexual intercourse" with the appellant and that "in a way it kept him satisfied", so that he would not trouble her. When she made the videos he told her to look as though she was enjoying herself. So she tried to look happy for him. She said that she did not enjoy making the films but knew that if she did so that she would feel safer. The appellant's case would have been that this material was self-explanatory. The sexual relationship was mutual, and the videos and photographs demonstrated that there was indeed a powerful sexual attraction between them.
21. The judge concluded that the videos, and indeed the photographs, including photographs 28 and 30 which we have described, should be excluded. He said that the videos were made because the complainant was under the appellant's influence and she did so in the hope that the sexual part of the relationship "might not continue". Although the judge recorded the appellant's case that the complainant made the videos voluntarily, he concluded that they would not advance the defendant's case and that they could not be used on the issue of credibility. His conclusion, of course, assumed that the complainant's evidence about the nature of the adult relationship was true, and failed to recognise that the videos and photographs might serve to demonstrate that it was not.
22. In fairness to him we should note that the judge was troubled about the possible proliferation of collateral issues. First, it was common ground between the complainant and the appellant that they had used drugs together. The Crown would have wanted consideration to be given whether the complainant's apparent cheerfulness might have resulted from drug taking. In the event the drug issue was explained at the trial by both the complainant and the appellant. We simply do not know what conclusion might have been drawn about the drug taking, but the complainant did not suggest that she may have derived sexual pleasure from the relationship after drugs. Second, from early 1998, following the breakdown of a different, later sexual relationship, the complainant was treated on a number of occasions for a variety of problems with her mental health. There was evidence that she had repeatedly overdosed. There was no expert evidence about any possible impact between the complainant's damaged health and any childhood abuse. The Crown suggested that it would have had to consider whether to call such evidence. The defence pointed out that there was no evidence of damage to the complainant's mental health either during the period of childhood abuse, or during the adult relationship. In any event, however, it is critical to notice that the complainant was not admitting that she was happy with the sexual element of the adult relationship, as a consequence of the way in which she had been corrupted by the appellant when she was a child, but that she was simply submissive to the appellant after years of childhood abuse. Finally, the judge was deeply concerned about the potential humiliation of the complainant if she was cross-examined about the activities shown on the videos. As we have already indicated, in the result, he excluded the videos and, save where she was fully-clothed, the photographs.
23. After his ruling prohibited the use of the video, the complainant was informed of the judge's decision. Although she knew that she would have to give evidence about the fact of the adult relationship, and could explain, and therefore would be subjected to cross-examination about her attitude to it, she was also able to assume that she would not be cross-examined on the basis that the videos, and the remaining holiday photographs, showed that she was an enthusiastic participant.
24. In summary, the judge's ruling proceeded on the basis that the fact of the adult relationship should properly be disclosed to the jury, and that its admission did not contravene s 41 of the 1999 Act. However his ruling in relation to the videos and photographs produced a disturbing and artificial result. The question is whether s 41 compelled it. In our judgment it did not.
25. S 41 of the 1999 Act is concerned to provide protection for complainants in sexual cases by restricting evidence or questions relating to his, or her, sexual behaviour or history. Unless it falls within the permitted statutory criteria, the deployment of such evidence (which for the purposes of this judgment hereafter includes questions in cross-examination) is prohibited.
26. In relation to childhood abuse, the issue of consent could not and did not arise. The appellant adamantly denied any sexual impropriety. Therefore, provided the evidence related to a "relevant" issue in the case, s 41(3)(a) applied. In our judgment the adult relationship was relevant, not only as the judge expressly found, to the appellant's contention that the complaint of childhood abuse was motivated by a desire for revenge, but also to the jury's consideration of the even more critical question, whether the appellant had abused the complainant when she was a child. In short the adult relationship was relevant to both issues rather than the one expressly identified by the judge when making his ruling.
27. S 41(4) provides that the evidence shall not be regarded as "relating to a relevant issue" if its purpose, or the main purpose, is to impugn the credibility of the complainant. In one sense, of course, any evidence which directly challenges the evidence of a complainant, or seeks to demonstrate a malicious motive, involves an attack on her credibility. However merely because cross-examination of the complainant may impugn her credibility, in the context of the issues which we have just described, it does not necessarily follow that the purpose, or the main purpose for deploying it is to do so. (See R v Martin [2004] EWCA Crim 916.)
28. Another feature of this appeal is that in consequence of the admission of the fact of the adult relationship evidence was given by the complainant at trial which fell within s 41(5). Rightly in this case, having regard to the judge's pre-trial ruling that the adult relationship was relevant, the Crown solicited the complainant's account of it. The appellant was then entitled to rebut that account, and he did so, but without being able to call evidence to support his case that the complainant was not submitting but fully participating. In passing we note that s 41(4) only applies for the purposes of s 41(3): it does not apply for the purposes of s 41(5).
29. It is sometimes loosely suggested that the operation of s 41 involves the exercise of judicial discretion. In reality, the trial judge is making a judgment whether to admit, or refuse to admit evidence which is relevant, or asserted by the defence to be relevant. If the evidence is not relevant, on elementary principles, it is not admissible. If it is relevant, then subject to s 41(4) and assuming that the criteria for admitting the evidence are established, in our judgment the court lacks any discretion to refuse to admit it, or to limit relevant evidence which is properly admissible. In short, once the criteria for admissibility are established, all the evidence relevant to the issues may be adduced. As part of his control over the case, the judge is required to ensure that a complainant is not unnecessarily humiliated or cross-examined with inappropriate aggression, or treated otherwise than with proper courtesy. All that is elementary, but his obligation to see that the complainant's interests are protected throughout the trial process does not permit him, by way of a general discretion, to prevent the proper deployment of evidence which falls within the ambit permitted by the statue merely because, as here, it comes in a stark, uncompromising form.
30. With these principles in mind, we return to examine the judge's ruling about the videos and photographs. The dispute about the nature of the adult relationship – submission, or happy participation – was vital to the jury's decision whether there had indeed been an earlier abusive relationship. Both protagonists gave conflicting accounts to the jury about the start of the relationship, and when it was adult, its nature. We shall not repeat our summary of the evidence. In the result, the jury had the fact of the adult relationship admitted before them, together with contradictory evidence about the way it started, and a critical dispute about its nature, relevant to the question whether the childhood abuse happened at all, as well as a possible motivation for revenge. Yet evidence of potential value to the resolution of the dispute was not before the jury which considered part of the evidence relating to the adult relationship, but not all, and certainly not all the evidence favourable to the appellant.
31. The judge permitted the evidence of the adult relationship to be given so as to enable an issue critical to the defence to be adduced. Having permitted this evidence to be given, he concluded that he should impose significant limits to the examination of the case on a factual basis which (a) was in issue between the complainant and the appellant and (b) which, at least arguably, would have been falsified by the very evidence which he excluded. Without the video and photographic evidence the jury may well have concluded that the relationship was indeed one in which the complainant simply submitted to the appellant. If so the jury might reasonably have concluded (a) that the relationship did indeed represent the logical conclusion of childhood abuse and (b) that the motive for the false complaint attributed to her by the appellant was itself false. If the sexual intercourse resulting from submission to him had produced specimen counts of rape, the evidence which apparently showed her enthusiastic participation would have been admissible to deal with the specific charge. However as submission, not rape, was alleged, her evidence of submission was shielded from proper cross-examination when, from the appellant's point of view, it required to be and on one view could be directly rebutted by objective evidence. Therefore his account was deprived of worthwhile support which her demeanour in the videos and the photographs may well have provided. In effect the judge's ruling, while intending to permit a proper examination of the complainant's alleged motivation for a false complaint was limited in such a way that the nature of the adult relationship could not be fully examined. In our judgment there is a very real possibility that the conclusion of the jury on two critical issues we have identified was indeed rendered unsafe. If it was unsafe on either issue, in the particular circumstances of this case, it is impossible to conclude that the verdicts themselves were safe.
32. Accordingly these convictions were quashed. We concluded that a new trial should be ordered. We shall give directions after hearing counsel.
33. As stated above, we acknowledge that the trial judge had to ensure that the complainant was neither humiliated nor gratuitously harassed. However in our view that consequence would not necessarily have followed the admission of the evidence from the videos and photographs. Thus, for example, while it would have been inappropriate for the complainant to answer questions while a video was being shown to the jury of her masturbating, we do not see why the videos, or the relevant parts could simply have been shown to the jury in the absence of the complainant, to enable them to make up their own minds about such insights as they could derive from this material about the true nature of the adult relationship, and whether she was indeed submitting, or happily enthusiastic.