England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		28 July 2006

LORD JUSTICE WALLER: I will ask Mr Justice Mackay to give the judgment of the court.

MR JUSTICE MACKAY:

The Facts

1. On 7 March 1997, in the Crown Court at Winchester, the appellant was convicted on an indictment containing six counts. On the first three he was convicted of rape, false imprisonment and making a threat to kill in respect of a woman "C". On the fourth, fifth and sixth counts he was convicted of rape, false imprisonment and assault occasioning actual bodily harm in respect of a second woman "D". He had minor previous convictions, but none of relevance to the matter of this appeal.
2. On each of the counts of rape he was sentenced to life imprisonment with a minimum period of seven years specified as the period to be served before he became eligible for parole. On the other counts concurrent sentences of three years' imprisonment were passed. The minimum period was identified by the judge in this way. He said that if determinate sentences for the rape counts had been appropriate, they would have been for a total of eighteen years (twelve years and six years consecutive), and by the normal process of calculation he arrived at the seven year tariff period.
3. The circumstances in which this appeal came to be presented after such long delay (a little over seven years) will have to be considered, but first we briefly outline the facts of this case.
4. The earliest counts in point of time were counts 4, 5 and 6, which related to the complainant D. She had been in a relationship with the appellant and had lived with him. In October 1995 she met him after work. He appeared to have been drinking. They went home and an argument developed in which he slapped her on a number of occasions around the head. Eventually he calmed down. D said that she was going to leave him. The appellant's father was in the house at the time and he told the appellant to stop. D reiterated her intention to leave the appellant.
5. She then got into bed. The appellant returned to the bedroom carrying a sword, which he pointed at her. He forced her to put on some items of underwear with which he supplied her. He told her to open her legs. She said that she was frightened he was going to stick the sword inside her. They then had full intercourse to which she submitted, she said, through fear and to which she did not consent. She stayed awake all night and left the following morning. The appellant's defence at trial, which was rejected by the jury, was that D's account was a complete fabrication and in collusion with the second complainant.
6. Counts 1-3 concerned the complainant C, whom the appellant had met in the course of her work for some insurance brokers. They became close friends, but their relationship was not a sexual one. C had been going through a difficult relationship with her then partner and confided in the appellant about her problems. She told the appellant that she was going to give that relationship another try. He said that he believed that it would be a mistake for her to do so. They both agreed to meet for a drink on the night of 18 March 1996. The appellant became drunk and C drove him home. She went into his house for coffee.
7. The appellant again said that he thought she was making a mistake and told her to stay the night with him. She refused. He put his hands on her shoulders and said that she was not going anywhere. He then produced a knife, which he held to her throat, and told her to undo her trousers or he would kill her. He threw her to the ground, knelt on her back and tore off her underwear. He then penetrated her vaginally and anally with his penis. After penetrating her anally he tried to force her to submit to oral sex. He dragged her to the bedroom and took female underwear from a plastic bag and forced her to wear it. He made her read out loud a passage from a pornographic magazine. He then had forcible anal sex with her again. She asked him if the underwear he had made her put on belonged to his ex-wife and he started to cry. He then gave her a T-shirt. She washed herself and went home.
8. The defence to these counts was that the intercourse described had taken place but that it had been consensual.
9. C had suffered serious injuries in addition to the obvious pain and humiliation involved in the attack. The doctor who examined her shortly after these events on 19 March described her injuries in this way:

".... [she had] acute pain around the anus with tenderness of the deep muscles around the anal margin. There was also a large swollen bright red area with an extremely swollen ridge along the middle of it which was 3cm long x 2cm wide running from the right side of the vaginal orifice almost to the anal margin. .... There was a split from the posterior anal margin of 2cm running up in the natal cleft which was sore and bleeding."

The doctor was unable to examine the complainant anally because of the severe pain. In later interviews with forensic experts the appellant has variously accounted for these injuries, or attempted so to do, by suggesting that they were self-inflicted or caused by C's boyfriend.

10. When the judge came to sentence the appellant he had before him two psychiatric reports. He had earlier ordered these because he was considering imposing a life sentence. One report obtained by the court was from a consultant forensic psychiatrist, Dr Humphreys, which explored and set out the appellant's relevant previous social and developmental history. The appellant denied the offences, as he does to this day. The doctor concluded that he could find no evidence of mental illness, that his personality development had not been markedly abnormal and that:

"he has had difficulty managing his anger and has requested help with his tendency to lie, but there is insufficient evidence to make a diagnosis of personality disorder."

Dr Humphreys added a rider, which we regard as highly important, that because of the appellant's denial of responsibility he had been:

".... unable to fully explore his attitude to sexuality and women. I am therefore unable to provide the court with any meaningful clinical view on his future risk of re-offending."

11. The defence had also commissioned a psychiatric report from Dr Jarman, a consultant psychiatrist. He produced a report which again explored the appellant's relevant previous history. Like Dr Humphreys, he found no evidence of formal mental illness, but he said:

"I believe on balance that a diagnosis of personality disorder (Dissocial Personality Disorder -- F60.2-ICD10) is justified."

Dr Jarman added the important proviso that the history he had obtained came very largely from the appellant himself who was "a self-confessed liar". In support of his diagnosis he instanced the past and documented occasions on which the appellant on his own account had resorted to lying and distortion of the truth. He expressed concern about the appellant's inability to form social links and his feelings of isolation. He noted that aggression was a central theme of his recent convictions. Acts of violence, including suicide attempts were part of his history. Alcohol appeared to be a significant factor in his offending. He noted that the appellant had a weak father and a strong, dominant mother, which he described as a feature commonly found among sex offenders. He speculated as to whether the appellant was a latent homosexual. He identified a callous lack of concern for the feeling of others, a low tolerance of frustration, a low threshold for the discharge of aggression, incapacity to experience guilt or profit from experience and a marked pronouncement to blame others, or a plausible rationalisation for behaviour which had brought the appellant into conflict with society. The doctor had no medical recommendation to make.

12. It is the appellant's case that the report of Dr Jarman ought not to have been disclosed to the court and that it was only before the court due to a negligent error on the part of his then solicitors. This error, as we understand it, forms the basis of a proposed action against those solicitors where no doubt it will have to be fully explored. For the purposes of this appeal, however, we proceed on the basis of facts agreed between the prosecution and defence pursuant to the full court's direction. They read:

"(a) The disclosure of the report of Dr Jarman to the Crown Court was an error, and no reasonably competent lawyer acting on behalf of Mr Cooper would have disclosed it to the court without securing his informed consent to that course.

(b) Mr Cooper did not give instructions for the disclosure of the report.

(c) The disclosure of the report became known to those acting for Mr Cooper and to Mr Cooper himself only when the judge raised the matter during the hearing."

13. That was the position when the appellant's then leading counsel, Mr Michael Lawson QC (now His Honour Judge Lawson QC) rose to address the judge in mitigation on 12 September 1997. He submitted that the court's medical report (that from Dr Humphreys) did not justify a life sentence, as opposed to a determinate term. The judge then intervened and this exchanged followed:

"THE JUDGE: Have you seen the report of Dr Jarman?

MR LAWSON: Your Honour, I have seen that. That goes somewhat further but we would submit in a case where the two are not ad idem the normal balance would be drawn in favour of the defendant and the most [sic] favourable to him adopted."

The judge did not respond to this. Nor were the reports referred to again in Mr Lawson's mitigation speech.

14. In his sentencing remarks the judge emphasised the seriousness of the offences. He described the rape of C as exceptionally brutal and disgusting. He emphasised the extreme violence involved and the pain and the injury caused to the victim. The assault on D he described as prolonged and vicious, and stated that the use of the sword pointed at her caused her to fear for her life. The judge had seen both women give their evidence about these matters in court before him. He then said that he had read both psychiatric reports and that he preferred Dr Jarman's report which expressed the opinion that the appellant suffered from a personality disorder characterised by psychopathic tendencies. He then said:

"The conclusion that I have reached is that you are, were and remain a danger to women with whom you are having a relationship and are likely to remain so for the foreseeable future."

Therefore, he said, the public would be better protected by a life sentence and the conditions for its imposition were made out.

The Grounds

15. It is said that the judge relied on material, namely Dr Jarman's report, which he should never have had and, moreover, which was wrong. He should not have had it because it was subject to legal professional privilege. It was wrong because it is now contradicted by the agreed expert evidence before this court, at least as to its diagnosis of Dissocial Personality Disorder ("DPD"). Further, the judge was wrong to prefer it to that of Dr Humphreys as neither had been tested in court. The appellant argues that had these errors not been made there would not have been passed life sentences on the rape counts, but in their stead lengthy determinate sentences. As we understand it, the contention is that they should not have been as long as the eighteen years suggested by the judge.
16. The criteria for imposing a discretionary life sentence in 1997 were drawn from R v Hodgson (1967) 52 Cr App R 113. They are summarised in the then current edition of Archbold at paragraph 5-189 as follows:

".... a sentence of life imprisonment would be justified when three conditions were satisfied: (a) the offence or offences are in themselves grave enough to require a very long sentence...; (b) it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (c) if the offences are committed the consequences to others may be especially injurious."

In addition, there was the then current guideline case from this court R v Billam (1986) 8 Cr App R(S) 48. So far as relevant to this appeal the court there said:

"Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder and where he is likely if at large to remain a danger to women for an indefinite time, a life sentence will not be inappropriate."

17. The decision as to whether or not to impose such a sentence is a forensic and not a medical exercise. It will usually be, but need not necessarily be, assisted by and based on medical evidence (R v Dempster (1987) 9 Cr App R(S) 176).
18. On 27 April 2006, the full court (Pill LJ, Dobbs and Underhill JJ) granted the necessary extension of time, gave leave to appeal and directed that each side be permitted to call the evidence of one psychiatrist. There is now an agreed joint statement by the two new psychiatrists. Each has given brief evidence before this court, the relevant parts of which we will deal with later. Before doing so, however, we should set out the issues raised by this appeal and our approach to them as we perceive it ought to be. Normally an appellant has the burden of proving that the sentence passed was wrong in principle or manifestly excessive at the time when it was passed and on the material then before the sentencing judge. The appellant argues, and the prosecution accept, that where the mental state of an appellant is in issue, fresh evidence on sentence appeals is often admitted -- evidence which relates to his history and progress following sentence and the experts' views on it. In principle that seems to us to be right in this case, especially where, as here, so much time has elapsed since the original sentence was passed.
19. We therefore have to consider both whether the judge was wrong to pass the sentence which he did pass in 1997, according to the law as it then stood, and whether, if he was not wrong, in the light of the fresh evidence now admitted by leave of the full court, the sentence can now be said to be wrong or excessive.

Was the judge wrong to pass a life sentence in 1997?

20. The judge was never told that Dr Jarman's report was disclosed without authority. Even if he had been, the prosecution argue that the privilege in that report was against disclosure not use, and that once it was in his hands he was entitled -- indeed bound -- to read it because all evidence as to the appellant's state of mind was relevant to his task.
21. The principle for which the prosecution argue is contained in Kuruma v R [1955] AC 197. It was applied in R v Tompkins 67 Cr App R 181, where a note from the appellant to his counsel accidentally came into the hands of the prosecutor. It was held that that note could be put to the appellant in cross-examination. It would be strange if the principle should not also extend to material coming into the hands of the judge. In that context this court considered a similar problem in R v Crozier (1990) 12 Cr App R(S) 206, in which a defence psychiatrist, on hearing of a sentence, had told the prosecution that his report contained his opinion that the appellant was a danger to the public as he was a psychopath. The court held that the strong public duty of a psychiatrist in making such disclosure overrode his duty of confidence to the appellant. That case is not an exact parallel with this case, as the focus was on the extent of the doctor's duty of confidence deliberately broken by him, rather than legal professional privilege waived inadvertently or negligently by solicitors, as here. But of interest is the finding that once the report, which was undoubtedly covered by legal professional privilege, was in the hands of the prosecutor, he was not criticised for seeking to put it before the judge and the judge was held to be entitled to use it.
22. However, there is a further criticism of the judge in this case by the appellant in that he resolved a clear medical issue as to diagnosis without hearing from either expert. He simply announced, without reasons, that he preferred the one to the other. We consider that this criticism is justified. The judge should not have proceeded in the way he did. Would he still have passed life sentences if he had ignored or excluded Dr Jarman's views as to DPD, or if he had said that he was unable to resolve the issue between the experts? The important rider from Dr Humphreys, which we have noted above, is highly relevant to this question. He was saying that he was unable to give any comfort to the court about the risk that the appellant posed to women. Plainly limbs (a) and (c) of the Hodgson test set out above were met. As to (b), Mr Edis QC, for the appellant, argues that there were "only" two rapes involved here, rather than a series or campaign of rape; that there was no history of sexual offending; that bad though these rapes were, there are, sadly, often seen even worse cases of rape in these courts; that there was no evidence of permanent injury to either women; and that for a rape to be sufficiently exceptional so as to merit a discretionary life sentence, there had to be some factor indicative of dangerousness which lay outside the circumstances of the very offences under consideration.
23. We cannot agree with this analysis. The second limb of Hodgson, as we read it, could be satisfied by reference to the "nature of the offences" or, as an alternative, to the defendant's history. As to gravity, it is not impossible but it is hard to visualise many worse rapes than that committed on C. Moreover, there were very disturbing similarities in the manner in which each offence was committed.
24. The judge had heard and seen both women and had heard and seen the appellant at the trial. He was able to note the escalating seriousness of the two attacks. The attacks involved alcohol, anger at being thwarted or frustrated by the opposition of a woman, the use of a weapon, fetishistic paraphernalia, humiliation of the victim, and threats of and the use of gratuitous violence. In our view a life sentence was a sentence fully open to the judge, even ignoring the issue as to whether the appellant met the criteria for DPD. It was neither wrong in principle at the time it was passed, nor manifestly excessive.

Is the sentence manifestly excessive viewed in the light of the fresh evidence?

25. We have looked at the appellant's progress in prison since conviction and we have heard fresh evidence from two psychiatrists as to his current state and their expert assessment of his position. He has remained in denial of these offences. He has undertaken no work relating to his offending behaviour as a result of that denial. Although he has generally been of good behaviour in prison and free from disciplinary trouble, he has failed to make any significant progress towards release, despite the fact that his tariff expiry date has now passed.
26. Actuarial risk assessments which measure the risk of the appellant's re-offending by reference to static risk factors have been carried out. They indicate a range from low to medium. However, that gives an incomplete picture since the appellant has continued to deny any psychiatrist or psychologist access to his thinking and attitude towards sexuality and sexual fantasy, and all the other matters personal to him which would enable dynamic risk factors to be added to the static factors to give the full picture.
27. Of the two experts called, Dr Reeves for the appellant, notwithstanding this, and despite his explicit acceptance that it is very difficult to assess dangerousness in the presence of denial, felt able to do so. He based himself on the facts of the offences as known and he offered "two possibilities". The first was that the reasons for the offending were sadistic in their origins and that if that were so, they would be ongoing and they would be indicative of continuing dangerousness. The second was that they were contextual in their nature, that is to say they were the actions of an insecure man prone to exaggerating his own successes and abilities, who had slept with many women, who had experienced bankruptcy in his business, whose marriage had failed, and who had finished in a state of clinical depression. Dr Reeves favoured the second which, if it was the true cause, he thought would ameliorate merely with the passage of time and the maturing process. Based on that, he regarded the appellant now (nearly ten years on) as not dangerous.
28. Dr O'Grady, called by the prosecution, did not accept this approach. He describes these "possibilities" as hypotheses only and as not a proper basis for any risk assessment. Without the facility to question the appellant about his sexuality, it all remains, in his view, conjecture. With that view we agree. Had this material been before the judge in 1997, it would not have altered the sentence he passed. Dr O'Grady follows a very similar line to that followed by Dr Humphreys. He sees the role of the psychiatric expert in these circumstances as drawing to the court's attention certain features which are expressed in psychological terms of these offences. We paraphrase them from paragraph 2.4 of the joint agreed report (although Dr Reeves did not comment one way or the other on this approach). Dr O'Grady pointed to these matters drawn from the circumstances of the offences: themes of deliberate employment of control and induction of fear in victims; the use of certain behaviours to suggest the deliberate infliction of humiliation and pain, suggesting themes of entitlement and a wish to dominate; denial of responsibility; and an enduring trait of distorting the truth. These, he thought, could be indicative of an underlying personality disorder, but he made no firm diagnosis to that effect. Were he assessing risk, these factors would have led him to recommend "significant caution in release and a presumption of grave long-term risk to women".
29. None of this fresh evidence, therefore, would in our judgment have altered the decision the judge made when he made it. Neither does it cause us reviewing his decision in its light to feel now that his sentence was manifestly excessive or wrong in principle.
30. The appellant addressed us in person in moving terms, assuring us that he has now changed and that he never wants to return to prison once free of it. Interestingly, he also said that he accepted that this court had to approach his case on the premise that his convictions were safe. Those were words he must have had some difficulty in saying. He is plainly an intelligent and determined man. We hope and trust that he is sincere in these statements. If he is, it is just possible to see the glimmerings of understanding on his part which may lead him to embark on the long road through, and hopefully out of, his life sentence. We hope that is the case, but for today and for the reasons given this appeal is dismissed.

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