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 WARWICK
HIS HONOUR JUDGE COLE

		200601567C1 Royal Courts of Justice Strand, London, WC2A 2LL
		11/07/2007

President of the Queen's Bench Division :

1. This appeal against conviction by Harvinder Singh Jheeta arises in somewhat unusual circumstances and raises interesting questions about "consent" within the Sexual Offences Act 2003 (the 2003 Act)
2. The indictment contained seven counts. Each arose from the relationship between the appellant and a woman we shall describe as D. Counts one and two alleged that between September 2002 and August 2003, and again between September 2003 and 30 April 2004 the appellant procured D to have sexual intercourse with him by false pretences, contrary to section 3(1) of the Sexual Offences Act 1956. After that date the 2003 Act came into force. Counts three to six alleged rape, contrary to section 1(1) of the 2003 Act. The dates in these counts are immaterial for present purposes, but the allegations of rape arose in identical circumstances to the allegations of procuring sexual intercourse by false pretences in counts one and two under the 1956 Act. Count seven alleged blackmail, and related to an unwarranted demand by the appellant for payment for security services to him by D.
3. On 5 July 2006 in the Crown Court at Warwick before Gibbs J, following a discussion between counsel on both sides about the implications of section 76 of the 2003 Act, the appellant pleaded guilty to all counts. No written basis of plea was tendered. On 2 August, two days after a hearing before Judge Faber, a signed basis of plea was provided. On 21 September before Judge Cole the appellant was sentenced to eight years imprisonment concurrent on each count. In addition, he was made subject to a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000 and to appropriate notification obligations.
4. An application for leave to appeal against sentence was granted by the single judge. The case was listed before the Full Court on 29 November. The Court expressed concern whether the contentions in the basis of plea were consistent with rape. If not, the appellant should not have pleaded guilty. The lawfulness of the sentences on counts one and two was also questioned. After explaining his professional position, counsel for the appellant withdrew from the case. Different counsel were instructed on both sides on 20 June 2007, when we considered applications for leave to appeal out of time against the convictions for rape and blackmail and an appeal against sentence on the original grounds together with an additional ground, that the sentences imposed on counts one and two exceeded the statutory maximum sentence. The necessary leave was granted. We reconsidered both conviction and sentence.
5. We must summarise the facts of this bizarre and unpleasant story. The victim was a student. She went to college in 1999 where she met the appellant. They became very good friends, and in 2002 a sexual relationship began. Consensual intercourse took place, usually in hotel rooms booked by the appellant. After a few months the complainant started to receive threatening text messages and telephone calls. These messages continued throughout her student days, first at college, and later when she went to university. Something of their intimidating nature can be captured in comments like "we are going to kidnap you"; "we are going to convert you"; "we are going to kill you". The complainant confided in the defendant. At first she believed that the messages came from Muslim students at college. However when she left college and went on to university, the messages continued, and she continued to share these worries with the appellant. He was responsible for all the messages, but purported to give her every reassurance that he, together with his friends, would be able to protect her.
6. Eventually the complainant decided that she wished to involve the police. She told the appellant, who said that he would lodge a complaint on her behalf. She agreed. When she asked him for updates on the investigation, he responded that it was in progress, and the police would be in touch with her in due course. Shortly afterwards a text message was received from the complainant by somebody describing himself as P.C. Ken. In fact this was the appellant. PC Ken said that he was the officer in charge of her case. He sent regular text messages to her asking her for details of the phone calls and messages she had received, and requiring her to submit statements by text. She believed that these inquiries were legitimate, and so she complied. Eventually the complainant decided that she would pass on all necessary details to the investigating officer through the appellant. At some stage PC Ken told the complainant that the appellant would be able to watch her house and arrange for security including undercover protection at a cost of £1,000 annually. Again, the complainant agreed. The appellant led her to believe that he paid the first two years security fees, and in the third year she handed him £700 from her own pocket. He told her that he paid the remainder. In the fourth year she was unable to raise £1,000 and refused to do so, but shortly afterwards she received a message from the appellant that he had paid it.
7. In due course a text message to the complainant stated that PC Ken had died, and that PC Bob had taken over the investigation. PC Bob was as fictitious as PC Ken. All the messages were coming from the appellant. Some correspondence followed, until PC Bob fell out of the picture. The appellant told her that PC Bob had accepted bribes and had been sentenced to a substantial term of imprisonment. Thereafter, yet another fictitious police office, PC Thomas, was created. The complainant received a message from PC Thomas that he had taken over the investigation. The process continued as before. The complainant was to provide statements by text. When she failed to do so, she was told that the perpetrators would be getting away scot free.
8. The complainant had no idea that the appellant was responsible for this entire process. She was concerned about their ongoing relationship, and during the last two or three years tried to break it off. Whenever she sought to do so, she would receive text messages from the different police officers, telling her that the appellant had tried to kill himself and that she should do her duty and take care of him. She was told that she should sleep with the appellant, and that she would be liable to a fine if she did not. She received something like fifty such demands over a four year period. On each occasion she complied with them and had intercourse with the appellant in a hotel room. But for the messages from the fictitious police officers, she would not have done so.
9. This strange, indeed remarkable, story came to an end in March 2006. Letters were sent to the complainant's home. Her mother received them. They caused her and the complainant's family considerable distress. They asserted, in lurid terms, that the complainant had been behaving promiscuously. The complainant decided to go to the police. She reported the facts. On 17^th March 2006 the appellant was arrested.
10. In his first interview the appellant insisted that the involvement of the police was genuine and that they had sworn him to secrecy. Eventually however he admitted that he had been responsible for the creation of the fictitious scheme. He explained that he thought that the complainant was going off him, and no longer wanted to have intercourse with him as often as she had. In answer to the direct question, "when you had sex with D on those occasions, did you have true consent?", he responded "No". He admitted that she had intercourse with him because of the texts. She would have been content with intercourse from time to time, but he wanted greater frequency. These admissions assume considerable significance when the basis of plea is examined.
11. The first document received from the appellant was the defence case statement, based on the appellant's then instructions to counsel. The sexual relationship, which began in the latter part of 2001 and continued throughout the complainant's time at college and university is admitted. She was a "willing partner at all times during the sexual relationship". The statement proceeds to make a series of admissions about the appellant's responsibility for the invention of the fictitious police officers. However it asserted that the complainant had been receiving the unsolicited and intimidating texts from others, and that the scheme represented the appellant's best efforts to help her address the problems. Paragraph 7 reads:

"The texts which made reference to having sex with the defendant were sent by him. At the time such texts were sent the defendant and the complainant were engaged in a full consensual sexual relationship and the texts did not therefore induce the complainant to have sexual relations with the defendant. Such texts, or parts thereof, were intended as a joke by the defendant and that was the manner in which they were treated by the complainant."

12. On 5 July 2006, before the basis of plea became available, there was a discussion between counsel, and the appellant was advised to plead guilty to rape on the basis that his admitted behaviour fell within the ambit of and was caught by section 76 of the 2003 Act; and accordingly there was an irrebuttable presumption that the complainant did not consent to intercourse. The subsequent basis of plea document contained eight paragraphs.

"The defendant ….

(i).. acknowledges having regular intercourse with the complainant between late 2001,early 2002 and early 2006.

(ii) the complainant did not inform the defendant that she wished to terminate the relationship on any occasion during the aforementioned period.

(iii) the complainant and the defendant were a "couple" throughout the aforementioned period and enjoyed numerous social events together and acts of intercourse.

(iv) the defendant acknowledges that he was responsible for sending the text messages whilst purporting to be PCs Ken, Bob and Thomas.

(v) the initial purpose of sending the text messages was to re-assure the complainant that she would not be harmed by youths who had been threatening her.

(vi) the defendant acknowledges that he continued to send text messages at a time when the frequency of his sexual relationship with the complainant had diminished. The defendant anticipated that the complainant would be persuaded by the text messages to engage in sexual intercourse with increased frequency.

(vii) the defendant maintains that the complainant was willing to engage in acts of sexual intercourse throughout their relationship but acknowledges that the text messages ensured that the intercourse was more frequent than would otherwise have been the case.

(viii) the defendant made full admissions to the above effect during his interview with the police"

13. When the case was listed before Judge Cole counsel then appearing for the appellant underlined that the written basis of plea gave notice to the Crown that "under the new legislation he has admitted the offences". Judge Cole's sentencing remarks reveal something of the problems which this created. By then, the complainant was abroad. In any event, as he put it, it would not be appropriate to call her back to suffer the further distress which would follow if she had to give evidence. He had to deal with what he aptly described as a "divided" situation. He carefully analysed the facts concluding,

"You started to have a relationship with her of a sexual nature and that continued….the time came when perhaps she started to tire of you and instead of accepting that that was the situation, you decided to take part in this bizarre charade to persuade her that she was at risk and as a result involving bogus police officers in your juvenile plot to put pressure on her to have more sex with you than she clearly wanted to have. As a result of doing that you committed the offence of rape on a number of occasions".

In other words, Judge Cole sought to be loyal to the appellant's contention that at least some incidents of rape were preceded and then followed by occasions when intercourse was consensual.

14. When the case was listed before the Full Court counsel explained that the advice to the appellant was based on the view formed by counsel who had appeared for the appellant before Gibbs J, and his own view, of the ambit of section 76 of the Act. The court was troubled whether this interpretation was correct. In the result the entire case was adjourned, effectively to allow for the position to be reconsidered. Counsel who appeared in the Crown Court, after waiver of privilege, provided a careful analysis of his position. He believed, rightly, that fresh counsel should argue an application for leave to appeal against conviction. We received written and very helpful oral submissions from Miss Elizabeth Marsh QC on behalf of the appellant, and Mr Mark Wall QC for the Crown.
15. Despite the endeavours of Miss Marsh we can see nothing to cause us to scrutinize further the conviction for blackmail. The appellant was responsible for the menacing pressures which led the complainant to part with her money. Nothing in his basis of plea hints at a potential legal difficulty with the plea to blackmail. The essential problem in this case is the relevance to the conviction, if any, of section 76 of the 2003 Act, and the conclusive presumptions which it provides in relation to consent in sexual cases. If none, section 74 and section 75, with its evidential presumptions, arise for consideration.
16. Section 74 provides:

"…a person consents if he agrees by choice, and has the freedom and capacity to make that choice"

17. Section 75 creates evidential presumptions about consent and, to the extent relevant for present purposes, provides:

"(1) If in proceedings for an offence to which this section applies it is proved –

(a) that the defendant did the relevant act,

…the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it".

There then follow a series of specified circumstances which apply to the "relevant act" where an evidential presumption against consent is raised. None arises here.

18. Section 76 provides:

"(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in sub-section (2) existed, it is to be conclusively presumed –

(a) that the complainant did not consent to the relevant act, and

(b) that the defendant did not believe that the complainant consented to the relevant act.

(2) The circumstances are that –

(a) the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act;

(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant".

19. Our particular concern is with section 76(2)(a), the "nature and purpose" of the "relevant act". For the purposes of sections 75 and 76, relevant act is defined by section 77. In the context of rape the relevant act is "the defendant intentionally penetrating, with his penis, …..another person ("the complainant")". The provisions relating to consent are not confined to rape, but do not at present require further examination. Perhaps more important, the offence of procuring a woman to have sexual intercourse by false pretences ceased to exist when the 2003 Act came into force. Hence the difference between counts one and two, and then three to six of the present indictment, and the absence of any concern about the appellant's conviction on counts one and two.
20. This consideration provided part of the foundation for the submission by Mr Wall that a statute which brought together all the offences of a sexual nature cannot have been intended to decriminalise deliberate conduct designed to deceive a woman into having sexual intercourse. Here, the appellant's purpose was to deceive the complainant into having sexual intercourse with him in order to alleviate or remove the problems which she, having been deceived by him, believed she faced. The result was that she submitted to intercourse because of those extraneous pressures. These submissions broadened from the narrow consideration of section 76(2)(a) of the Act into the wider question of consent as defined in section 74. The appellant's actions deprived the complainant of her freedom to choose whether or not to have intercourse with him. He pleaded guilty on the basis that at least on some occasions her freedom to choose was constrained by his actions. For the moment we shall confine our attention to the irrebuttable presumption in section 76(2)(a).
21. Miss Marsh submitted that the Act incorporated the common law on these issues into statute, and created the irrebuttable evidential presumptions. The fact that the presumptions in section 76 are conclusive reinforced the need for circumspection about an extended interpretation of the "nature or purpose" of the relevant act. The deception, within the limits described in the basis of plea, is conceded, but it was not a deception about the nature or purpose of the relevant act. The complainant was sexually experienced. She was aware of the nature and purpose of intercourse, and the identity of the applicant. The advice given to the appellant was incorrect in law. There was no deception operating on the mind of the complainant about the nature or purpose of the Act. The conclusive presumptions could not be established. The plea was tendered after legal advice which did not accurately reflect the statutory provisions. Therefore the convictions are unsafe.
22. Our approach is to address the ambit of section 76 in the context of the creation of an irrebuttable evidential presumption, with wide application to effectively every incident of sexual touching. Professor Temkin and Professor Ashworth explained one possible consequences of a wide interpretation of 76 in their valuable article, The Sexual Offences Act 2003 (1) Rape Sexual Assault and the Problems of Consent (2004)CLR 328 at 338.

" Those who are uncomfortable with the full implications of sexual autonomy may not share the view that a conclusive presumption of absence of consent should apply where D has sex with C who is asleep at the time. The provisions of the Act on consent apply not only to rape and assault by penetration but also to touching which falls within sexual assault or causing sexual activity. A conclusive presumption of absence of consent and absence of reasonable belief in consent, if applied to all situations where C was asleep at the time, would render D liable for sexual assault if he sexually touched his partner C while C was asleep even though D was in the habit of doing so and C had not objected to this in the past".

The writers point out that a complaint, and subsequent prosecution, would be unlikely. However it would seem pretty surprising to couples sharing a bed to be told that the law prohibited either of them from intimately touching the other while asleep, and that they would be potentially liable to prosecution and punishment, for a sexual touch of the sleeping partner as a preliminary to possible sexual activity which the sleeping partner, on awakening, might welcome. The article also addresses "the problem" of the repeal of the offence of procuring sexual intercourse by false representations. It explains that convictions for this offence were rare, adding that "in the unusual case where this issue occurs, the vague terms of section 74 now assume a heightened importance".

23. The starting point in our analysis is to acknowledge that in most cases, the absence of consent, and the appropriate state of the defendant's mind, will be proved without reference to evidential or conclusive presumptions. When they do apply, section 75 and section 76 are directed to the process of proving the absence of consent to whichever sexual act is alleged. They are concerned with presumptions about rather than the definition of consent The evidential presumptions in section 75 continue to require the prosecution to disprove consent if, in the circumstances defined in the section, there is sufficient evidence to raise the issue. These presumptions are not conclusive, merely evidential. However section 76 raises presumptions conclusive of the issue of consent, and thus where intercourse is proved, conclusive of guilt. They therefore require the most stringent scrutiny.
24. In our judgment the ambit of section 76 is limited to the "act" to which it is said to apply. In rape cases the "act" is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76 (2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose of one or other form of intercourse. No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments of or common or garden lies by the defendant. These may well be deceptive and persuasive, but they will rarely go to the nature or purpose of intercourse. Beyond this limited type of case, and assuming that, as here, section 75 has no application, the issue of consent must be addressed in the context of section 74.
25. It may be helpful to reinforce these observations by reference to a number of cases at common law which provide examples of deceptions as to the nature or purpose of the act of intercourse. As to the nature of the relevant act, in R v Flattery [1877] 2QBD 410 the Court of Crown Cases Reserved upheld a conviction for rape where intercourse took place after the complainant, a girl of 19, was persuaded that the defendant was performing a surgical operation which would break "nature's string" and provide a remedy for the fits to which she was subject. In R v Williams [1923] 1 KB 340 the conviction for rape was upheld where the defendant deceived a girl of 16 into having sexual intercourse with him to cure a problem with her breathing which prevented her from singing properly. The judge summed up the legal principles in terms approved by the Court of Criminal Appeal:

" The law has laid it down that where a girl's consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what was being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was not sexual intercourse and because she thought it was a surgical operation".

26. Deception as to purpose is sometimes said to be exemplified in R v Tabassum [2000] 2 CAR 328, a decision described by the late Professor Sir John Smith as a "doubtful case". A number of women agreed to participate in a breast cancer research programme at the behest of the appellant when, as a result of what he said or did, or both, they wrongly believed that he was medically qualified or trained. They consented to a medical examination, not to sexual touching by a stranger. "There was consent to the nature of the act, but not to its quality". However section 76 (2)(a) does not address the "quality" of the act, but confines itself to its "purpose". In the latest edition of Smith and Hogan Criminal Law, (11^th edition) Professor David Ormerod identifies a better example, R v Green [2002] EWCA Crim 1501. Bogus medical examinations of young men were carried out by a qualified doctor, in the course of which they were wired up to monitors while they masturbated. The purported object was to assess their potential for impotence. Although the experiment did not involve any form of intercourse, it illustrates the practice of a deception as to the "purpose" of the physical act.
27. These examples demonstrate the likely rarity of occasions when the conclusive presumption in section 76 (2)(a) will apply. For example, R v Linekar [1995] 2 CAR 49 would not fall within its ambit. The appellant promised to pay a prostitute £25 if she had intercourse with him. It was a promise he never intended to keep. On this aspect of the case, that is, that the defendant tricked the prostitute into having intercourse with him, the judge left it to the jury to consider whether his fraud vitiated her consent which was given on the basis that he would pay. The conviction was quashed. The consent given by the complainant was a real consent, which was not destroyed by the appellant's false pretence. If anything, he was guilty of an offence under section 3 of the 1956 Act, that is an offence identical to the offence alleged in counts one and two of the present indictment. Linekar deceived the prostitute about his intentions. He undoubtedly lied to her. However she was undeceived about either the nature or the purpose of the act, that is intercourse. Accordingly the conclusive presumptions in section 76 would have no application.
28. With these considerations in mind, we must return to the present case. On the written basis of plea the appellant undoubtedly deceived the complainant. He created a bizarre and fictitious fantasy which, because it was real enough to her, pressurised her to have intercourse with him more frequently than she otherwise would have done. She was not deceived as to the nature or purpose of intercourse, but deceived as to the situation in which she found herself. In our judgment the conclusive presumption in section 76 (2)(a) had no application, and counsel for the appellant below were wrong to advise on the basis that it did. However that is not an end of the matter.
29. We are being asked to examine the safety of convictions for rape where the appellant pleaded guilty. He did so on the basis of plea which accepted the accuracy of his admissions in interview with the police, and in particular did not question his unequivocal admission that there were occasions when sexual intercourse took place when the complainant was not truly consenting. This is entirely consistent with his acknowledgement that he persuaded the complainant to have intercourse with him more frequently than otherwise, and the persuasion took the form of the pressures imposed on her by the complicated and unpleasant scheme which he had fabricated. This was not a free choice, or consent for the purposes of the Act. In these circumstances we entertain no reservations that on some occasions at least the complainant was not consenting to intercourse for the purposes of section 74, and that the appellant was perfectly well aware of it. His guilty plea reflected these undisputed facts. Accordingly the appeal against conviction is dismissed.
30. We must deal with sentence. The sentences on counts one and two exceeded the statutory maximums. They must be reduced. The maximum sentence available was two years imprisonment. The sentences will be quashed and replaced by sentences of eighteen months imprisonment. The sentences on counts three to six inclusive and count seven were approached by the judge on the basis of totality. We agree with this approach. The judge himself regarded the appellant's behaviour, unpleasant though it was, as something of a "juvenile plot", and also acknowledged that the incidents of rape had to be considered in the context of an ongoing sexual relationship which, at least in part on the basis of plea, was consensual. We can see no fair ground for interfering with these assessments. In addition, the case proceeded as a guilty plea, and by that date, the complainant was already abroad. On the other hand the pressure on her was prolonged, and distressing. Giving appropriate credit for the plea, in the circumstances of this strange case, our conclusion is that the overall sentence of eight years imprisonment was excessive on a young man of previous good character. The total sentence should be reduced to six years' imprisonment. In view of the age of the complainant, the disqualification order under section 28 of the 2000 Act was inappropriate. It will be quashed. The sentences on counts three to seven will be quashed and varied accordingly. All sentences will run concurrently. The total sentence is six years' imprisonment. The notification order will be unaffected.