England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Tuesday, 1st March 2005

1. LORD JUSTICE KEENE: On 30th January 2003 in the Crown Court at Bristol before His Honour Judge Campbell-Boothman, the appellant was convicted of the rape of N by a majority of 10: 2. He was sentenced on the same day to 4 years' imprisonment and required to sign on the Sex Offenders Register. He was acquitted by the jury in relation to charges of making threats to kill and attempting to cause grievous bodily harm with intent, both those charges also relating to N.
2. His application for leave to appeal against the conviction for rape was refused on paper, and was not renewed. That application had been based on alleged inconsistency of the jury's verdicts.
3. His conviction now comes before this Court as a result of a Reference, dated 29th November 2004, by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. By virtue of that same section the Reference is to be treated as an appeal by Mr Warren, under section 1 of the 1968 Act. Since the Reference by the Commission, Mr Warren has applied for and been granted unconditional bail.
4. The appeal is not resisted by the Crown, and in our view, rightly so. This is another regrettable case where, for reasons to which we will come, there has been a miscarriage of justice. We propose to allow the appeal but it is necessary that we set out, albeit briefly, our reasons for so doing.
5. This was a case which turned fundamentally on the credibility of the alleged victim, Miss N. She and the appellant had been living as a couple but this has come to an end and she was due to move out of the house which they had shared. Nonetheless, it seems that she and the appellant had continued to have sex from time to time. There was no dispute at trial that they had had intercourse on the day in question, 7th July 2002. Her account of the events of that day was that the appellant had physically intimidated her, threatened to kill her and, during the course of the day, physically overpowered her, causing injury, before later raping her.
6. The appellant's version was that they had indeed had intercourse but it was consensual and they had had such intercourse on three occasions during the course of the day. He denied threatening to kill her or physically assaulting her. Although there were areas of tenderness found by medical examination of her, these were the result of rough sex play, which they both enjoyed. The evidence of a doctor called by the prosecution was that the marks on Miss N were equally consistent with consensual intercourse or with rape.
7. During the course of the trial the defence applied, under section 41 of the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act") to cross-examine Miss N about various matters, including previous allegations she had made against two other men, Ricky Swannell and Victor Dixon, allegations which had later, it was said, been withdrawn. The judge refused to allow cross-examination about those previous allegations.
8. The investigations of the Commission since trial have revealed a substantial amount of evidence not known to the defence of Mr Warren at his trial. In our judgment, the evidence to which we shall refer meets the requirements of section 23 of the Criminal Appeal Act 1968 in relation to fresh evidence and we duly admit it.
9. What has emerged is that Miss N had indeed made, and withdrawn subsequently, an allegation against Ricky Swannell, but it was not an allegation of a sexual nature. In 1997 she had alleged assault against him and he was duly charged. Subsequently, she withdrew the allegation. According to Mr Swannell, this was done in a letter in which she stated that she had made up the allegation out of vindictiveness.
10. During the proceedings against the appellant there was no disclosure by the Crown of the information about the making and subsequent withdrawal by Miss N of this allegation of assault. It was, in our view, clearly relevant and of great importance; once the nature of the allegation was known, it was clear that it was not subject to any restriction under section 41 of the 1999 Act. Had the defence been aware of this information, it could have been used in cross-examination of the complainant, without the need to seek the leave of the court.
11. In the case of Victor Dixon the belief of Mr Warren's defence at trial, based on an alleged statement made by Miss N to Mr Warren, was that she had falsely accused Mr Dixon of rape. Hence the application under section 41. In fact what has emerged is that Miss N complained to an Employment Tribunal about sexual harassment by Mr Dixon, who was a fellow employee at a company called Prime Time Recruitment Limited. She was successful in those proceedings and was awarded £1500. However, she never collected that award. She had, when applying for employment with that company, lied about her date of birth and had done so, according to a police officer, in order to obtain higher wages.
12. This aspect of the new evidence, taken by itself, seems to this Court to be of somewhat limited significance but, of course, it does not stand by itself. Indeed, the most significant new evidence discovered by the Commission concerns an incident about which no section 41 application was made at trial, because the defence was largely unaware of what had happened about it. It is referred to by the Commission in its statement of reasons as the "Northampton incident". In early 2000, Miss N had complained to the police that a black male had forced his way into her flat with a knife and ordered her to take off her clothes. Eventually she said she had used a CS spray to force him to leave. She gave a vivid description of the event and also gave a very specific description of her attacker to the police who, as a result, clearly identified him as a man called Edwards, who was almost certainly known to her. This offence was recorded as one of aggravated burglary. However, Edwards had an alibi which was patently a valid one. Eventually, in the face of this, Miss N retracted her allegation. The police were satisfied that it was a false allegation and it was recorded as "no crime". According to a police officer she eventually admitted that she had lied.
13. Under Home Office Rules the reference "no crime" denotes that no offence had been committed rather than uncertainty about whether one has been committed, or not. The police incident report stating "no crime" was disclosed to Mr Warren's defence but without the guidelines explaining the significance of the entry "no crime". That significance was not appreciated. No disclosure was made to the defence of any admission by Miss N that she had fabricated the allegation. No reference was made consequently at Mr Warren's trial to the "Northampton incident" and it did not form part of the section 41 application.
14. Had it been made part of that application, this Court is satisfied that, on the authorities, cross-examination about it could and would have been allowed. Fabrication in the past of allegations of sexual assault was held by this Court in the case of R v T & H [2001] EWCA Crim 1877 to fall outside the restrictions imposed by section 41 because such questions are not ones about the complainant's sexual behaviour in the past, but about her statements. The defence would have had a proper basis, therefore, for alleging the falsity of those statements and for relying on their relevance.
15. Putting all these matters together, this Court has no doubt that this new evidence, taken as a whole, would have called into question Miss N's credibility which was central to the Crown's case at trial. Moreover, we also take the view that there was a regrettable nondisclosure by the Crown in the respects which we have identified. Mr Macfarlane, who appears today on behalf of the Crown, concedes that there was a breakdown in communications within the relevant police force for a reason which cannot be discovered. He has, very properly, expressed substantial regret at what has happened to Mr Warren as a result, and the Court joins in that expression of regret.
16. Had these matters been ventilated at trial the jury might very well have arrived at a different verdict. The appellant's conviction is unsafe and we consequently quash it.
17. This case demonstrates two matters, it seems to us: first of all, once again the valuable work being done by the Criminal Cases Review Commission, and secondly, the importance of prosecuting authorities adhering fully to the obligations on them, so far as disclosure of relevant material to the defence is concerned.
18. The Crown has already indicated that no retrial is sought and that comes as no surprise. This appeal is therefore allowed.
19. LORD JUSTICE KEENE: You have a defence costs order application, you were saying, Miss Radcliffe. What is the position about the costs incurred by your client?
20. MISS RADCLIFFE: My Lord could I just.... (Pause) Yes, my Lord I regret to say I do not have the particulars to give your Lordships as to when the legal aid order was granted, but if it is possible for your Lordships to grant, in principle, subject to those details being supplied promptly?
21. LORD JUSTICE KEENE: At the moment I cannot see why not. The Associate is the person who tells me about these details if I go wrong. I cannot, at the moment, see any reason why we could not make a defence costs order to cover the period up to the grant of legal aid.
22. MISS RADCLIFFE: Thank you very much.
23. LORD JUSTICE KEENE: Yes, we shall make such an order. Thank you both very much.