England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
Judge Kennedy

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd May 2006

Lord Justice Thomas:

1. On 18 May 2005 at Snaresbrook Crown Court before HHJ Kennedy and a jury, the appellants Miah and Uddin were convicted of kidnap, by majorities of 10:2 (Count 1), and of indecent assault on a female, unanimously (Count 3). They were acquitted of attempted rape (Count 2). A third defendant, Adnan Ahmed was convicted on the same two counts; he does not appeal to this court. The appellants were subsequently sentenced to 3 years and 9 months imprisonment on Count 1 and 3 years on Count 3, such sentences to run concurrently
2. The appellants appeal against conviction on one ground by leave of the single judge. The appellant Miah renews his application for leave to appeal against conviction on a second ground after refusal by Wright J.
3. The issue on appeal is whether the judge was right in the decision he made regarding the admissibility of the complainant's previous sexual history under s.41(3)(a) of the Youth and Criminal Justice Act 1999. The evidence of the events giving rise to the charges needs to be briefly summarised.

Summary of the evidence

4. The complainant and Miah had been to the same primary school, met by chance, spoken to each other and exchanged telephone numbers since then. In January 2004, they went with each other to a party; the complainant met Uddin at or on the way home from the party. It will be necessary to refer to the events at that party as it was what had happened at that party which was the subject of the application under s.41.
5. Miah and the complainant stayed in touch by telephone after that party. On Sunday, 21 March, 2004, the complainant agreed to meet Miah in Rosina Gardens, Hackney, East London, to return to him some CDs he needed. The complainant's evidence was that she was due to meet her boyfriend at 5 p.m, but had time to meet Miah beforehand with the CDs. It was raining hard that day and so she got into Miah's car. She then accepted the offer of a lift to a nearby internet café. Miah was driving the car, with Uddin in the front passenger seat and Ahmed (whom she had not met before) sat next to her in the back. It was common ground that they drove to the internet café and then drove around various parts of East London before arriving at the Formule 1 Hotel on an estate near a Tesco store in Barking where the car's arrival was photographed on camera. Miah went in to the hotel and returned to the car. It was accepted by Ahmed that he had kissed and fondled the complainant during the journey and by Miah and Uddin that there was some sexual touching of her in the car park, before she left the car and went to Tesco's petrol kiosk. At the kiosk she complained that she had been sexually assaulted and the police were called. Miah sent a text to the complainant which she received when at the police station; it stated: "Hey listen can U please not take this out of proportion. Over now. So don't worry about think. Just move on we don't need to see each other any more please leave it at that". The appellants were subsequently arrested one by one; Uddin was picked out at an identity parade and Ahmed was arrested sometime after the others. Beyond that, the events and, in particular, what happened in the car were disputed.
6. The complainant's account in evidence of what happened on 21 March 2005 was that

i) When they got to the internet café, Uddin suggested that they all go to his flat to eat, take drugs and spend the day together. She refused. Ahmed took her by the waist and she told him not to touch her. Uddin then suggested again going to his flat and having group sex. She again refused. Miah then got out of the car and she tried to follow, but Ahmed pulled her back. Miah returned and drove quickly off. Ahmed tried to grab her breasts. When the car stopped at some flats, she said that she wanted to be let out. Uddin maintained his suggestion of sex and she again declined.

ii) When Miah started the car again, the complainant again asked to be let out, but they refused. Throughout the time in the car Ahmed, on the encouragement of Uddin, opened her top, was trying to kiss her and was touching her breasts. They then drove to a block of flats, stopped for petrol, drove around more whilst the men talked of sex, Ahmed touched her breast and tried to kiss her and they smoked drugs. The men said they had booked two rooms in a hotel so that they could have sex with her in turn. She begged to be let out and they refused.

iii) When Miah stopped at a garage and got out, the complainant tried to get out, but Uddin and Ahmed pulled her back. They drove to the Formule 1 Hotel; Miah went in. She tried to get out but Uddin and Ahmed pulled her back. After Miah returned and said there were no rooms in the hotel, Uddin took Ahmed's place in the backseat. He took out his erect penis, put her hand on it and asked her to masturbate him and perform oral sex on him. Crying, she refused. Miah then came back through gap in the front seats and lay on her. Ahmed undid her bra and squeezed her breasts. Her jeans were pulled down and Miah put fingers in her vagina. Miah then unzipped his trousers and put his erect penis against her vagina and tried to insert it; he said he would "fuck her right now". She pushed him away and kicked and screamed and landed a kick on Miah. She pulled her trousers up and her top down

iv) They again refused to let her out, but, after some argument, Miah apologised, drove to Tesco and asked her not to take matters further. When they reached Tesco's car park the complainant got out of the car.

7. The defendants each gave evidence; their case was that the complainant did not seek to get out of the car at anytime and everything which happened (which was quite different to what the complainant alleged) was consensual.
8. Miah's evidence was:

i) After the party in January and during the course of telephone calls about returning the CDs, the complainant had told him on the telephone before they met on the 21 March that she wanted to have sex with him. When they met on 21 March, they went to the Internet café.

ii) They then drove around for some hours, smoked drugs and discussed sex among other things, but no question of her meeting her boyfriend arose. She never asked him to stop. Eventually, he parked by the Formule 1 Hotel and asked her if she would go to a hotel with him. She asked him to check availability. He did so; there was none. When he returned to the car, he saw a little kissing going on. He kissed her, touching her neck and breast, over her clothing, and said there was no room at the hotel. She asked him why he smoked cannabis and drank. He asked her why she slept with men. She then became distressed and left the car, and although they offered to take her home, she said she would get a cab.

9. Uddin's evidence, was that

i) On the 21 March, they had spent about 30-45 minutes with the complainant in the internet café while he made a call outside. Then they drove around for some time, chatting; she made no mention of a boyfriend.

ii) From the front he saw her and Ahmed kissing in the back. She did not seek to get out at any stage.

iii) When the car parked at the Formule 1 Hotel, Miah went to the hotel and Ahmed got out to stretch his legs. The complainant then invited him into the back. He did so and eventually she sat on his lap. He did not mention group sex, but kissed her for about 5-10 minutes and lightly touched her breast, over her clothing. When Miah returned, Miah tried to get into the back seat, but both he and the complainant told him to stop. There was then a discussion between Miah and the complainant. She then left, declining a lift home.

iv) He had answered questions in interview "No comment" on the advice of the duty solicitor.

10. Ahmed's evidence was that:

i) He had not met the complainant before they met in the car on 21 March. They went together to the internet café.

ii) As they drove around, she was flirtatious with him in the back seat and they hugged, kissed and she touched him everywhere except his private parts.

iii) They discussed her sexual history and he once grabbed her breast. He accepted in the light of the DNA evidence of a swab taken from her breast that this was under her clothing;

iv) At the Formule 1 car park, he moved to the front seat. From there, he saw nothing, except that he once saw Miah leaning over into the back seat.

11. The prosecution relied on evidence of the account she had given to the cashier at Tesco, the security guard and to police officers, as well as evidence of her examination by a doctor where bruises described as love bites were found on her neck.

The appellants' case in respect of the party in January

12. In his interview Miah had stated that during the party in January where he had met the complainant he had gone with the complainant into the bathroom and she had performed oral sex on him; that he believed that at the same party shortly after performing oral sex on him the complainant had sex with a man that she had met at the party, a Mr Monir, although she had not met him before.
13. Uddin had been at the January party; his case was that he had been told prior to 21 March 2004 by Miah that the complainant had there had oral sex with him and by Mr Monir that she had had sexual intercourse with him; he believed what he had heard to be true.
14. It was the case of Uddin and Miah that they wished to cross examine the complainant on this basis, give evidence themselves about it and call Mr Monir who was available and who wished to give evidence about what had taken place between himself and the complainant at the party. They contended that this evidence should be admitted under s 41(3)(a) as the issue to which the evidence went was not one of consent, but to their honest belief that she was consenting. It was (or at least became) common ground that there was no other basis under s.41 on which it might be admissible.
15. The material part of section 41 reads:

"(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.

….

(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or 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)."

The application under s.41, the rulings and the course of the trial

16. There were a number of occasions on which the issue under s.41 was considered.
17. On 19 November 2004, after the plea and directions hearing, there was a further pre-trial hearing in the case to deal with a number of issues including the joining of Ahmed into the indictment and an application under s.41 by Miah to cross examine the complainant in relation to her previous sexual history.

i) The application was to cross examine the complainant about sexual activity between her and Miah and between her and another man at the party in January 2004. The application was grounded on the fact that this was part of the prosecution case which needed to be clarified.

ii) Prior to that hearing, the prosecution had conceded that the application made by Miah should be granted. At the hearing the advocate for the prosecution (who was not the advocate at the trial) told the judge that the statements of the complainant had detailed the history of her relationship with the complainant, including a mention of foreplay at the party; he did not therefore oppose the application. The judge then made an order which stated that leave to cross-examine was granted to Miah (unopposed). A similar application was made by the advocate for Uddin, but adjourned as the prosecution wanted to consider it further.

18. On the first day of the trial, the advocate for the prosecution sought to clarify the ambit of the leave granted under s.41 to cross-examine the complainant in relation to her sexual behaviour at the January party. Argument was adjourned to the following day. In the light of what had happened before the trial, the prosecution decided that they could not seek to resist the application to cross-examine the complainant as to what had happened at the party with Miah.
19. On 10 May 2005, the second day of the trial, after hearing argument, the judge gave his ruling.

i) He made clear that if the matter had come to him in the first place, he would not have given consent to cross-examination. Although there was marked similarity between the allegations of her giving Miah oral sex at the party and her consensual participation in group sex in the back of a car, it was important to note that it was not Miah's case that he had done anything more than to kiss her on the neck. He would not therefore have allowed questioning about the previous experience on this basis under s 43(3)(c).

ii) However the issue had been dealt with at a pre-trial hearing and the defence had prepared the case on the basis that the conduct at the party was admissible. He would therefore allow the matter to proceed by permitting the prosecution to deal with the party in evidence-in-chief and the defence being allowed to cross-examination in relation to the sexual conduct between Miah and the complainant. He would not permit cross-examination about sexual intercourse with others in the house or evidence to be given about it, as that would drive a coach and horses through s.41.

iii) After the complainant had given her evidence in chief, he would consider further the scope of permissible cross-examination based on any previous sexual encounter between her and Miah.

20. The complainant then gave evidence

i) She accepted that she kissed Miah and that 'some foreplay' took place in the bathroom with him;

ii) She did not deny she had performed oral sex on Miah; she could not remember if she performed oral sex on Miah, but if she did, that was because she liked him.

21. On the third day of the trial, 11 May 2005, after further argument, the judge gave a further ruling:

i) He held that evidence by Miah or by Mr Monir (the man with whom Miah believed the complainant to have had sexual intercourse at the party) or anyone else about other sexual behaviour at the party, including her having intercourse with Mr Monir was inadmissible.

ii) He considered that the issue which arose was whether evidence could be given as to what Miah had said at the outset of his interview in relation to what he believed about the complainant's sexual conduct on a previous occasion. However that issue arose in circumstances where Miah denied there had been any sexual conduct in the car, except kissing and a little touching. There was, in the judge's view, a difference between him being allowed to give evidence of that belief and his assertion of the truth of what he had asserted about the complainant.

iii) The Judge considered that Miah was entitled to give evidence of what he said in interview. The jury were therefore to hear evidence that Miah had said in interview that he believed the complainant had had sexual intercourse with another person at that party; he was not to go beyond this or give or call any other evidence as to the complainant having sexual intercourse with another.

iv) It was contended on behalf of Uddin that he had touched and kissed her in the belief that that "she was up for it" on the basis of what he had been told about her actions at the party; that he was therefore entitled to give evidence what he did in the car to the complainant was on the basis that he understood from what he had been told about her that she would be receptive to it.

v) It would, the judge held, be wrong to distinguish Uddin from Miah because he had not mentioned this in interview. He was therefore entitled to give evidence of his belief (as at 21 March) in her consent by virtue of his having heard of other events in which she had allegedly taken part; he was not allowed to give or call evidence as to the truth of what had happened at the party.

22. On 12 May, there was a further discussion about the issue after the prosecution had closed their case. Revisiting and refining his ruling of the day before, the judge ruled that:

i) Miah was entitled to tell the jury what his belief (as at the 21^st March) had been, what he had said in the interview about the complainant having sexual intercourse with another and that that was his honest belief. He was not entitled to give the jury his grounds for that belief.

ii) Uddin was entitled to tell the jury what his belief was in the light of what he had been told by others following the party in January and that that was his honest belief

iii) Neither was entitled to go further as that would be adducing evidence of previous sexual conduct in breach of s.41.

iv) In speeches, the advocates were entitled to say that such beliefs were honest, but not that there were rules in law which prevented their adducing evidence in support.

23. Thereafter:

i) Miah gave evidence that he and the complainant went to the party in January, they went out to the shops together and kissed in the lift on the way back; they then went to the bathroom where oral sex took place.

ii) There was put before the jury the interview in which Miah had stated that it was his belief that she had also had sexual intercourse with another man at the party whom she had not met before and that she had flirted with his other friends. Miah gave evidence that what he had said in interview was true.

iii) Uddin gave evidence that he had been at the party where Miah and the complainant had gone to the bathroom together and that he had heard that oral sex had taken place; he believed rumours that the complainant had had sexual intercourse with someone else there.

24. In summing up the case the judge, after referring to this evidence, directed the jury:

"Can I make this clear? Whether or not that is true is absolutely irrelevant to this case. For that reason no questioning of her about it would have been proper or appropriate. What [Miah] or [Uddin] say is that they believed that those events had occurred and that belief, you may think, coloured their behaviour towards her. Your decision is simply, if you think it appropriate, as to whether you think that they did have or may have had an honest belief that those assertions were true.

In the case of [Miah] it may be – it is a matter for you – that the facts and the nature of the allegations about [the complainant] from the witness box may assist you in contemplating the honesty and extent of those beliefs"

Submission by the appellants

25. The single judge granted leave to both Miah and Uddin to contend that they should have been entitled to put evidence before the jury of the grounds of their belief. He did not grant leave to allow them to argue that independent evidence should be called. That ground is renewed.
26. It was argued on their behalf:

i) The events at the party were highly relevant to the belief of the appellants. The jury would, without this evidence, have found it highly improbable that the appellants could have believed that the complainant would have been prepared to engage in sexual conduct in the back of the car, unless they knew of events at the party; as the evidence went to the issue of belief and not to consent, the evidence was therefore admissible under s.41(3)(a).

ii) In the circumstances, the judge should not have limited the evidence that could have been given in relation to that belief. They should have been allowed to cross examine the complainant about her sexual experience with M, to give evidence themselves about it and to call M to give evidence to that effect. The jury were therefore given a false impression and there was a real risk they had rejected the appellants statement of belief as they not given evidence of its basis.

iii) The jury would also have been confused as:

a) Although they knew of the suggestion that the complainant had had sexual intercourse at the party, she was not asked about it nor was evidence called to support the suggestion.

b) While Uddin was allowed to explain the reasons for his belief by saying he had heard that the complainant had had sex at the party, Miah was not allowed to explain the reasons for his belief.

Conclusion

27. The primary issues in the case were, as the judge made clear in his rulings and in the summing up,

i) in relation to the count of kidnapping whether she had been forcefully and physically kept in the car against her will,

ii) in relation to the counts of attempted rape and indecent assault, whether her version of what the appellants had done in the car was true or whether the account of the appellants was true.

This was not a case where it was the appellants' case that they had indulged in the sexual activity she described with her consent; they denied that activity and alleged they had had only kissed and touched her over her clothing.

28. That is the context in which the judge had to make the ruling under s 43(1)(a) in relation to the questions to be asked and evidence given in relation to the issue of honest belief in relation to her consent. No application was made and none granted on the basis that the evidence was relevant to her consent. The Judge also had to proceed on the basis of the concession made by the prosecution in relation to the incident involving oral sex at the party in January 2004 and the order made in November consequent upon that concession.
29. In approaching the exercise of the powers under s 41, the judge had to apply the principles laid down in R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45. As relevant to this appeal, the principles may be summarised as:

i) Cross-examination and adducing evidence where it is relevant to the issue of honest belief under s 41(3)(a) protects the accused's right to a fair trial: see paragraph 77 of the speech of Lord Hope of Craighead.

ii) The 1999 Act in this and other respects deals sensibly and fairly with questioning and evidence about the complainant's prior sexual experience with other men; see paragraph 30 of the speech of Lord Steyn.

iii) S.41 had to be read so as to permit evidence that would ensure a fair trial, but due regard had to be had to the need to protect the complainant from indignity and from humiliating questions. It was for the trial judge to draw the line between what should be permitted and allowed; see the speech of Lord Steyn at paragraphs 45 and 46:

iv) The extent to which cross examination might be conducted or evidence given in relation to honest belief was subject to the control of the court under s.41(2)(b). The court had an overriding duty to ensure that any questions put or evidence given was permitted only to the extent that to refuse leave to adduce it would render a conclusion on the relevant issue in the case unsafe; see the speech of Lord Hope of Craighead at paragraph 67:

"….the extent to which the complainant may be cross-examined about her previous relationship with the respondent, and the extent to which the respondent may give evidence about it, for the purposes of the defence of honest belief will be subject at all times to control by the court under s.41(2)(b). The court has an overriding duty under that paragraph to ensure that any evidence or question for which leave is given is permitted only to the extent that to refuse leave would render a conclusion on any relevant issue in the case unsafe."

v) The extent to which evidence in relation to conduct between the complainant and the defendant and the complainant and another should be differentiated was a matter for the trial judge. There were strong reasons for a narrower prohibition with third parties, as the relevance of behaviour with third parties was more difficult to justify than behaviour with the defendant: see the speech of Lord Hope of Craighead at paragraph 77 and Lord Clyde at paragraph 130.

30. This court clarified in R v F [2005] EWCA Crim 493 the ambit of a trial judge's powers under s.41 once the judge has decided that evidence was admissible:

"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."

31. In the various rulings that we have endeavoured to summarise the judge stated he had followed the principles set out in R v A. In summary, he permitted the appellants to ask questions and give evidence in relation to their belief that she had consented to sexual activity to the following extent:

i) Miah's evidence about the oral sex he had had with the complainant at the party and that he had truthfully stated in interview that he believed that the compliant had had sexual intercourse with another man she did not know.

ii) the complainant's cross-examination in relation to the oral sex at the party.

iii) Uddin's evidence that he had been at the party, he had heard Miah and the complainant had had oral sex and he had heard she had had sexual intercourse with another man at the party.

32. On analysis in the light of the issues in the case and the matters which judge permitted to be adduced by way of evidence and cross examination, the real grounds of the appeal can be stated as the wrongful exercise by the judge of the power under s.41 in two ways:

i) He prevented the truth of the facts underlying that belief being ascertained by refusing to allow the cross-examination of the complainant and the calling the evidence of Mr Monir.

ii) He should have allowed more details of the basis for that belief by allowing Miah to give evidence it was Mr Monir who had told him he had sexual intercourse with the complainant, and Uddin to give evidence it was Miah who had told him that the complainant had performed oral sex on him and it was Mr Monir who had told him he had had sexual intercourse with the complainant.

33. As to the first criticism, the judge was plainly right to refuse to permit calling Mr Monir to give evidence of his having sexual intercourse with the complainant at the party and to refuse to permit the cross examination of the complainant as to whether she had had sexual intercourse with Mr Monir. That evidence was inadmissible. It was irrelevant to the issue of whether they had an honest belief; that belief, as the judge observed, was not dependent on whether there had in truth been sexual relations between Mr Monir and the complainant. Obviously neither Uddin nor Miah had been present when any sexual intercourse took place between Mr Monir and the complainant; their belief rested on what they had been told by others not on the truth of what had in fact happened. The passage in the summing up to which we have referred was plainly correct.
34. There was a contention made by the prosecution that one of the purposes of the seeking to adduce evidence of whether there had in fact been sexual intercourse between the complainant and Mr Monir was to impugn the credibility of the complainant and so be inadmissible under s.41(4). As the judge was so clear in his view that the evidence should not be admitted, this further contention issue was never considered by the judge. It does not, in the light of our conclusion, arise on this appeal.
35. As to the first criticism, once it was accepted that the evidence in relation to their belief was conceded to be admissible, in our judgment, the identification of the source of the information on which the appellants based their belief was in principle relevant evidence as to whether they had that belief. It was therefore also admissible. There was no basis on which the judge could, in the circumstances, properly have sought to exclude that evidence once it was determined it was relevant.
36. However, what was thereby excluded was in fact very little; it was plain that that the source of Uddin's belief in the complainant performing oral sex was Miah and that the source of the belief of both of them in the complainant having sexual intercourse was another, though unnamed, man. What was excluded was the identification of a named individual, Mr Monir, as the source of their belief. Nor, on this analysis, could the jury have been confused, as the effect of the judge's ruling was to exclude in the case of both Miah and Uddin the identification of the source of the belief that the complainant had had sexual intercourse with another man at the party.
37. In our judgment, the mistaken exclusion of this evidence cannot have rendered the verdicts unsafe. The evidence of belief was of marginal, if any relevance, to the count of kidnapping. It is difficult to see how the appellants could contend that if they believed she consented to the sexual conduct alleged by reason of her previous sexual conduct at a party, she was thereby consenting to be kidnapped. As to the count of indecent assault, the real issue was whether the truth of what happened in the car lay in the appellants' account or the complainant's; the mistaken exclusion of the evidence in relation to the identification of the source of their belief in consent does not, in our judgment, affect the safety of the convictions for indecent assault.
38. The appeal is therefore dismissed.