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 BASILDON
HIS HONOUR JUDGE CLEGG
T20057190

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 November 2007

Lord Justice Moore-Bick :

1. On 22nd December 2005 in the Crown Court at Basildon before His Honour Judge Clegg the applicant was convicted of kidnapping, false imprisonment and two offences of rape all committed within a period of under 24 hours in July 2005. On 27^th January 2006 he was sentenced to a term of 9 years' imprisonment, being 6 years' imprisonment in respect of the offence of kidnapping, 4 years' imprisonment in respect of the offence of false imprisonment and 9 years' imprisonment in respect of each offence of rape, all to be served concurrently.
2. Leave to appeal against both conviction and sentence was sought on a large number of grounds, all of which were rejected by the Single Judge, but leave to appeal against conviction on three grounds was granted by the Full Court on 7^th June 2007. The Full Court referred a renewed application for leave to appeal against sentence to the court hearing the substantive appeal. Before us the appellant now also seeks leave to appeal against conviction on two new grounds, in one case as a result of having come into possession of certain documents which, it is said, could not reasonably have been made available for use at the trial.
3. The circumstances giving rise to the convictions were as follows. The complainant, Kulsum Khan, and the appellant were married in India in 1996, but returned to live in this country where the appellant had a business. Relations between the two deteriorated and in April 2004 the complainant left the matrimonial home and went to live with her uncle in Leeds. Shortly after, in May 2004, she started proceedings for divorce on the grounds of the appellant's unreasonable behaviour. Nonetheless, during the following months there were a number of attempts at reconciliation, the last of which occurred in July 2004. In August 2004 the complainant moved from her uncle's house and rented her own accommodation in Leeds.
4. In February 2005, following a contested hearing, she was granted a decree nisi, but the appellant lodged an appeal against that order which was still pending at the time of trial. On 3^rd May 2005 the complainant obtained a non-molestation order from the county court backed with a power of arrest.
5. On 25^th July 2005 the appellant drove to Leeds where he met the complainant. It was the prosecution's case that he had gone there without having received any approach or encouragement from her and had accosted her in the street without warning. She said that he had then forced her into his car where they had talked for some time before he drove off, taking her to their former matrimonial home in Southend. In the course of the journey he tied her legs to prevent her escaping. They reached Southend at about at 3 a.m. on 26^th July. According to the complainant, the appellant took her to an upstairs room where he slapped her face and raped her on two separate occasions. The next morning he locked her in the room before leaving the house, but she was able to call the police using a cordless telephone which the appellant had left in the room. The police released her after breaking open the door.
6. The appellant's case was that the complainant had willingly travelled to Southend with him and had consented to sexual intercourse. There had been no violence, nor had she been tied up as alleged. He denied imprisoning her against her will but accepted that he might have locked the room inadvertently through force of habit.
7. The issue for the jury, therefore, was whether the complainant's account was true and thus whether they were sure that she had been abducted, falsely imprisoned and raped at least twice. Although there was a good deal of other evidence in the case, much of it was of peripheral relevance so a great deal turned on the credibility of the complainant and the appellant.

Privilege

8. The first ground on which leave to appeal was given by the Full Court is that the judge wrongly held that documents in the possession of the solicitors acting for the complainant in the matrimonial proceedings were subject to legal professional privilege and were therefore immune from production without her consent. In order to understand how that question arose it is necessary to refer to some of the evidence adduced at the trial.
9. The prosecution had served on the defence statements from the solicitors who were acting for the complainant in the matrimonial proceedings, Mr. Hawkhead and Miss Routledge, whom they intended to call in order to explain the course of those proceedings and also to shed light on the nature of the relationship between the complainant and the appellant at the relevant time. Court documents relating to those proceedings were exhibited to Mr. Hawkhead's statement.
10. In his statement Mr. Hawkhead referred among other things to a conversation with the complainant in January 2005 concerning the attempt at a reconciliation that had occurred in July 2004. That came about because of what the complainant had said to the police shortly after the events that were the subject of the charges. The complainant had made statements to the police on 27^th and 28^th July and a third statement in August 2005 describing the events of 25^th and 26^th July and what had led up to them. However, although she referred in those statements to the brief attempt at a reconciliation that had occurred in July 2004, she failed to say that she was the one who had instigated it. The complainant said that when she became conscious of the omission in October 2005 she had asked Mr. Hawkhead what she should do and he had told her to go to the police and make a further statement. As a result, the complainant did go to the police shortly afterwards and told them that she had instigated the attempt at reconciliation in July 2004. The reason, as we understand it, why Mr. Hawkhead referred in his statement to his conversation with the complainant in January 2005 was to rebut any suggestion that the complainant had fabricated this part of her evidence at the last minute.
11. The other item of evidence which bore on this question came in the form of a letter written by the complainant's solicitors to the Essex Police on 28^th July 2005, very shortly after the incident the subject of the trial. The letter runs to over seven pages and it is unnecessary to refer to the whole of it in detail. Suffice it to say that its primary purpose was to impress upon the police that in the solicitors' view their client's personal safety would be put at risk if the appellant were freed on bail. However, in order to bolster their assertions, and also to obtain if possible the assistance of the police in connection with her claim for financial relief, the solicitors described at length the progress of the matrimonial proceedings which, they asserted, the appellant had done his best to obstruct. Having said that, is necessary to mention certain passages in the letter which later became the focus of submissions before the judge and before us.
12. In the opening paragraphs the solicitors referred in terms to what they described as "the extremely violent assault upon Mrs Khan by Mr. Ahmed" and also to "the severity of the assault which has recently occurred." Later they refer to the risk of "shocking repercussions" if they continued to put pressure on him in connection with the ancillary relief proceedings. When describing the course of those proceedings they referred to advice obtained from counsel concerning the manner in which personal service should be made and also to advice from counsel that they needed "to exert pressure upon the appellant from all angles". The police passed the letter to the Crown Prosecution Service who disclosed it to the appellant's legal advisers pursuant to the Crown's general duty of disclosure in criminal proceedings.
13. Before either of the solicitors gave evidence counsel for the appellant applied for the disclosure of seven classes of documents from the solicitors' file relating to the matrimonial proceedings insofar as they contained information touching on matters relevant to the charges against the appellant. They included

(i) communications between complainant and her solicitor relating to the events of 25^th-26^th July 2005;

(ii) notes made by the solicitor about strategy towards appellant, in particular putting pressure on him;

(iii) notes referring to contacts with police;

(iv) documents referring to sexual relations between the complainant and the appellant, both before and after 2004;

(v) documents recording discussions or agreements about what allegations of unreasonable behaviour should be made in the matrimonial proceedings;

(vi) documents referring to an attempted reconciliation in July 2004 and to the discussions about it in January 2005 to which Mr. Hawkhead referred, including documents recording advice from her solicitors that she should report the appellant's conduct it to police; and

(vii) communications between complainant's solicitors and the police.

14. Counsel appears to have recognised that all the documents were on the face of it subject to legal professional privilege, but he submitted that the complainant had waived privilege by allowing her solicitors to refer in their evidence to the course of the matrimonial proceedings, by exhibiting copies of some documents to their statements, and in particular by allowing her solicitors to write the letter to the police to which we have just referred. It appears that counsel also submitted that by referring to a conversation with Mr. Hawkhead in October 2005, in which she asked him what she should do about the fact that she had omitted to tell the police about her part in the attempted reconciliation in July 2004, she had waived privilege in the communications with her solicitors more generally.
15. The judge dismissed the application. He accepted that insofar as the letter referred to advice received from counsel it referred to privileged material, but held that it was written for the limited purpose of the divorce proceedings with the result that privilege had not been waived, or at any rate had been waived only to the limited extent necessary for the matrimonial proceedings. He considered that the conversations between the complainant and Mr. Hawkhead, and between the complainant and the police, concerning the omission from her statement of the part she had played in the attempt at reconciliation in July 2004 did not involve confidential communications being nothing more than evidence of when she had first mentioned the matter. He considered the position to be covered by the decision in Wilmot (1989) 89 Cr.App.R. 341 in which the court observed that a defendant could call his solicitor to rebut an allegation of recent fabrication without waiving privilege in confidential communications more generally.

The procedure

16. Before turning to consider the submissions made on behalf of the applicant in support of this ground of appeal it is necessary to say something about the procedure that was adopted in this case. The application was made by counsel for the appellant apparently against the Crown and was opposed by prosecuting counsel who made it clear to the judge that he was not instructed on behalf of the complainant, as indeed he was not. However, the documents of which the appellant sought disclosure were not in the possession of the Crown, but of the solicitors acting for the complainant, yet no one appears to have thought it necessary or appropriate for the complainant, who alone had the right to claim privilege in respect of the documents, to be made a party to the application or even to be heard.
17. The proper course to be adopted in order to obtain disclosure of documents in the possession of a third party, as the complainant was, is to obtain a witness summons seeking their production. That is not merely a procedural nicety. One consequence of the course taken in the present case is that no one was instructed to protect the complainant's interests or make submissions on her behalf. It is not clear exactly what order counsel for the appellant was inviting the judge to make, or against whom, but it is difficult to see how he could properly have made an order requiring the complainant to disclose confidential documents without giving her an opportunity to be heard.
18. This remains a difficulty in relation to the present appeal, since we are being invited to hold that the judge was wrong, that the conviction is unsafe as a result of the documents not having been disclosed and, in effect, that the complainant is no longer entitled to assert privilege over the documents at any retrial, all without hearing from anyone who represents the interests of the complainant and without, as far as we are aware, anyone having informed her of the proceedings. That is not satisfactory, but having drawn the matter to the attention of counsel, we decided to hear argument on this ground of appeal before deciding whether we should invite submissions from the complainant. In the event we did not find it necessary to do so.
19. Mr Christie Q.C. (who did not appear for the appellant at the trial) submitted that by her conduct and that of her solicitors the complainant had lost the right to claim privilege in respect of the entire contents of the solicitors' file relating to the matrimonial proceedings. He did not go so far as to submit that his client was entitled to examine the whole of the file for himself, but he did submit that he was entitled to obtain disclosure of any documents that contained information having a bearing on the issues in the trial and if he is right it must follow that he was entitled to cross-examine the complainant about any oral communications with her solicitors relating to the same matters. That is a far-reaching submission which deserves careful examination.
20. In support of his submissions Mr. Christie drew our attention to a number of authorities dealing with privilege including Ashfield Municipal Council v Roads and Traffic Authority [2004] NSWSC 917, British Coal Corpn v Dennis Rye Ltd (No.2) [1988] 3 All E.R. 816, R v Bowden [1999] 2 Cr. pp.R. 176, R v Derby Justices ex parte B [1996] AC 487, B v Auckland District Law Society [2003] UKPC 38, [2003] 2 AC 736 and R v Loizou [2006] EWCA Crim 1719 (unreported). However, there was little or no disagreement as to the principles involved and we do not think that anything is to be gained by referring to the authorities in detail.
21. Legal professional privilege, which is what we are here concerned with, is the right to withhold disclosure of confidential communications between a client and his lawyer brought into being for the purposes of obtaining legal advice and, by extension, the right to withhold disclosure of confidential communications brought into being in connection with and for the purposes of litigation. It applies equally whether disclosure is sought for the purposes of civil or criminal proceedings and whether by the prosecution or the defence: see B v Auckland District Law Society, paragraph 44.
22. It is now established that documents may be disclosed for a limited purpose without waiving privilege generally: see British Coal Corpn v Dennis Rye Ltd (No.2) approved in B v Auckland District Law Society at paragraph 68. However, if a document or communication is disclosed voluntarily, privilege will normally be lost generally and with it the right to withhold production of other documents or communications relating to the same subject matter, or "transaction" as it has been referred to in the decided cases. The principle governing the loss of privilege in the transaction generally is one of fairness: it is contrary to the interests of justice to allow a person to disclose a limited range of material relating to a particular matter, perhaps chosen to serve his own interests, while depriving the other party to the litigation of the full picture which the remainder of the material relating to that matter would disclose.
23. However, the importance of legal professional privilege to the proper administration of justice is such that it should be jealously guarded and it follows that courts should not be astute to hold that a litigant has lost the right to claim privilege save to the extent that justice and the right to a fair trial make that necessary. For that reason we do not think that it is satisfactory to approach the matter in as broad a way as counsel for the appellant suggests. In our view it is necessary to identify the confidential communications which the complainant chose to disclose and see to what extent fairness demands that other documents or communications should also be disclosed.
24. We have already described the nature and contents of the letter written by the complainant's solicitors to Essex Police which is said to contain a number of passages in which privilege has been waived in respect of confidential communications between the complainant and her solicitors. However, with the exception of two passages to which we shall refer in a moment, it is not clear what confidential communications it is said to disclose. Although the solicitors might be criticised for sending the police copies of documents brought into existence for the purpose of the matrimonial proceedings, those documents are not in the nature of confidential communications passing between the complainant and her legal advisers. Nor do we think that the use of phrases such as an "extremely violent assault" can reasonably be said to involve the disclosure of confidential communications between the complainant and her solicitors about what took place between her and the applicant during the night in question. If it were otherwise, a solicitor would never be able to write a letter on instructions from his client without the risk of waiving privilege. Statements of that kind are better regarded as assertions made on behalf of the client, not an account of what the client said in consultation with the solicitor.
25. The references to advice given by counsel, however, are in our view of a different character and the judge was right to recognise that. Where he went wrong, in our view, was to treat them as having been disclosed for a limited purpose of the kind contemplated in British Coal Corpn v Dennis Rye Ltd (No.2) and B v Auckland District Law Society. The scope of that principle may require further elucidation in due course, but it is unnecessary to embark on it in this case. In our view the complainant did waive privilege in the contents of counsel's advice in relation to the issues identified in the letter and also in other confidential communications bearing on it, such as the instructions on the basis of which that advice was given. However, she did not thereby waive privilege in any other confidential communications made in connection with the matrimonial proceedings.
26. We turn next to that part of Mr. Hawkhead's statement which deals with the complainant's failure to mention in her original statement the fact that she had instigated the attempt at a reconciliation in July 2004. Since the statement was made with the complainant's consent, it probably did involve a waiver of privilege in that conversation, but that is as far as it goes since the "transaction" in question was limited to the fact of the omission and its subsequent rectification. One can understand why counsel for the appellant wished to have access to as much material reflecting discussions between the complainant and her solicitors as possible for the purpose of cross-examination, but broad considerations of fairness do not provide a good reason for encroaching on established principles relating to legal professional privilege.
27. Mr. Christie then proceeded to identify a number of points in the evidence at which there were passing references to decisions taken in the conduct of the divorce proceedings on the advice of the solicitors. In our view they add nothing to what we have already dealt with and are not capable of involving a waiver of privilege in confidential communications relating to the divorce proceedings generally.
28. For the reasons we have given we are provisionally of the view (without having heard the complainant) that she did waive privilege in the advice received from counsel, both in relation to the personal service of ancillary relief proceedings and in relation to the steps that should be taken to put pressure on the appellant to respond to them in a serious manner. However, we can see no reason to think that disclosure of communications whose subject matter was so far removed from the circumstances of the alleged offence could possibly have had any effect on the outcome of the trial. Whatever advice counsel gave in relation to personal service, it can have had no relevance whatsoever to the issues before the jury. Similarly, the advice in the context of the matrimonial proceedings "to exert pressure upon the appellant from all angles" was of no relevance since it was not, and could not have been, suggested that the solicitors had tried to persuade the complainant to embroider or manufacture evidence of kidnap, imprisonment and rape. We are satisfied, therefore, that the failure to obtain disclosure of the documents relating to those matters (assuming a proper application for disclosure had been made) does not in any way undermine the safety of the appellant's conviction. It is unnecessary, therefore, for us to hear the complainant on this ground which must fail in any event.

New evidence

29. It appears that the complainant and the appellant were unfortunately unable to have children. That was said to have contributed indirectly to the failure of their marriage because the appellant proposed to take a second wife in order to enable him to have a family. The complainant said that she had always been strongly opposed to his doing so and indeed in an affidavit made in January 2005 for the purposes of the matrimonial proceedings she had said that she had never agreed to it. However, there was evidence to the contrary in the form of an e-mail sent to the appellant in September 2002 in which she confirmed that she was content for him to do so. As one would expect, the complainant was cross-examined on the discrepancy between the affidavit and the e-mail. She agreed that the two could not be reconciled, but she said that when she had made the affidavit in 2005 she had forgotten about the e-mail which she had sent three years earlier.
30. The judge drew the jury's attention to this evidence and directed them that they should consider whether the complainant had consciously lied when making the affidavit and, if they thought she may have done so, to ask themselves whether it necessarily meant that she had lied when giving her account of the events of 25^th-26^th July 2005. It later transpired, however, that after the trial had begun a number of documents had come into the hands of the appellant's solicitors, including a copy of a draft statement apparently prepared for use in the matrimonial proceedings, a copy of what appears to be an earlier incomplete version of that draft and a copy of a letter dated 13^th June 2004 written by complainant to her solicitor giving him instructions as to her attitude to the appellant's suggestion that he should take a second wife. In both draft statements there is a reference to an e-mail sent by complainant to appellant in which she says she told him of her feelings and concerns and of the fact that she was disillusioned with life. She says in the draft statement that she decided to tell him these things by e-mail because he would not listen to her. In the letter she expressed strong views about polygamous marriages which are said to be inconsistent with what she had said in the e-mail sent about two years earlier.
31. None of these documents has any direct bearing on the events which were the subject of the indictment, but Mr. Christie submitted that they are of importance for two reasons: because they have an significant bearing on the complainant's credibility, which was a central issue in the trial; and because they also have an significant bearing on the evidence of Mr. Hawkhead, who accepted that if he had known of the existence of the e-mail he would not have drafted the complainant's affidavit in the way he did. Moreover, Mr. Christie submitted that Mr. Hawkhead and Miss Routledge must in fact have been aware of the existence of the relevant e-mail shortly before the offences were alleged to have been committed because they were responsible for preparing the drafts which were brought into existence in connection with the proceedings early in 2005.
32. The appellant also put before us part of a document which, although headed "Petitioner's Proof of Evidence" appears to be a copy of a working document intended to be used to obtain the complainant's detailed instructions and evidence in relation to certain of the allegations made in her divorce petition. It contains advice from the solicitors and includes a passage in which they appear to suggest that in a recent conference she had given the appellant too much credit by saying that he had discussed all aspects of his financial affairs with her. Mr. Christie submitted that the document is evidence that the solicitors were encouraging the complainant to alter her instructions and, not to put too fine a point on it, tailor her evidence to meet the needs of the case. So, it is said, this document has an important bearing on the solicitors' credibility as well.
33. Mr. Abell submitted that the court had not been provided with a satisfactory account of how these documents were said to have come into the hands of the appellant and those acting for him. However, it must be borne in mind that the entirety of the new evidence which the appellant seeks to adduce is in documentary form and to the extent that they can be shown to be authentic and would be admissible at trial speak for themselves. Mr. Richardson, the solicitor now acting for the appellant (but who did not act for him at the trial), has sworn an affidavit in which he states on instructions received from the solicitor acting at the time (and which he has recently confirmed in a brief statement) that during the course of the trial the defence team was handed a bundle of copy documents relating to the divorce proceedings at the behest of the appellant's family. The original papers were said to have been left behind when the police removed the complainant's possessions from the appellant's house and appear to have been copied by his family without her knowledge or consent. For the purposes of the appeal we are content to accept that explanation at face value.
34. Mr. Richardson says that a large bundle of papers was received by the appellant's solicitors on Monday 12^th December when the complainant was nearing the end of her cross-examination. The appellant's solicitor read through the bundle during the course of the morning. He gave some consideration to whether the documents were privileged, but in the end the decision was taken not to make use of them at the trial. That account is supported by the solicitor himself and by junior counsel who appeared for appellant at trial, Mr. Zarif Khan. He too has sworn an affidavit in which he states (from memory) that the solicitor acting for the appellant was sent a large bundle of documents relating to the matrimonial proceedings which arrived after the complainant had given evidence. The documents themselves were not seen by Mr. Khan or his leader, Mr. Magarian. However, after discussions with the solicitor, counsel decided not to make use of the material principally because they had some anxiety about the source of the documents and the manner in which they had come into their possession. The judge had by that time given his ruling that the complainant had not waived privilege in documents relating to the divorce proceedings.
35. Whatever else may be in doubt, it is reasonably clear that a considered decision was taken by those acting for the appellant not to make use of the documents at the trial. At the time that decision was taken the opportunity to do so had not altogether passed since, if it had been thought that they might significantly undermine the complainant's credibility, an application could have been made to adjourn her cross-examination or, if that had already been completed by the time the significance of the material was appreciated, to recall her for further cross-examination. In these circumstances it seems to us impossible to say that there is a reasonable explanation for the failure to adduce the evidence at the trial.
36. That, of course, would not be sufficient to dispose of the matter if we were satisfied that the failure to make use of the material rendered the appellant's conviction unsafe, but in fact we do not think that it would have had a significant effect on the outcome of the trial. The documents could only have been used to add to the challenge to the claimant's general credibility, but the discrepancy between the complainant's affidavit and her earlier e-mail was clear and the judge reminded the jury of in his summing-up. We are not persuaded that the challenge to the complainant's credibility would have been significantly strengthened if counsel had been able to put these documents to her in cross-examination. We are therefore satisfied that the failure to make use of this material does not render the conviction unsafe.

Failure to sum up the solicitors' evidence

37. The next ground of appeal is that the judge failed to remind the jury of the evidence given by the complainant's solicitors and failed to direct them properly as to its relevance.
38. Miss Routledge and Mr. Hawkhead were called to give evidence of the appellant's conduct in the context of the matrimonial proceedings primarily in order to explain the context in which the complainant had obtained a non-molestation order against the appellant, but parts of their evidence could be said to support the conclusion that the appellant had demonstrated animosity towards the complainant of a kind that tended to support the prosecution case. In his summing up the judge made no reference to their evidence, but Mr. Christie submitted that, since it amounted to evidence of bad character (a point that had not occurred to the judge or counsel at the trial) and of its importance generally, he ought to have given the jury some assistance about the way in which they should approach it and the use they could legitimately make of it.
39. It goes without saying that a judge cannot be expected to remind the jury of every piece of evidence given in the course of a trial which lasted almost three weeks, and indeed it would be unlikely to assist them if he were to do so. He should, however, remind them of those parts of the evidence that he thinks are likely to be of assistance to them and if counsel thinks that the judge has omitted to remind the jury of some important part of the evidence, he can ask him to do so.
40. That is what happened in the present case. Towards the end of the summing up Mr. Magarian asked the judge to remind the jury of many parts of the evidence which he submitted were important but which the judge had failed to mention. They included not the whole of the solicitors' evidence, but simply that part of Mr. Hawkhead's evidence in which he had said that if he had been aware of the e-mail sent by the complainant to the appellant in September 2002 he would have drafted the complainant's affidavit in the divorce proceedings differently.
41. In view of the large number of issues he raised with the judge it is clear that Mr. Magarian was astute to ensure that the jury were reminded of any aspect of the evidence that could possibly benefit the appellant. We therefore approach with some caution the submission that other matters, which he did not raise, were of such importance that the judge's failure to refer to them renders the appellant's conviction unsafe.
42. Although it might be said that parts of the solicitors' evidence tended to cast the appellant in an unflattering light, it was not put forward by the prosecution as evidence of bad character admissible under section 101 of the Criminal Justice Act 2003 and (correctly in our view) was not treated as such by the defence or the judge. In those circumstances for the judge to have given an elaborate direction of the kind to be expected in such a case was in our view unnecessary and potentially damaging to the appellant. Mr. Christie also submitted that, because the solicitors had an interest in assisting the complainant in her matrimonial proceedings and thus had an interest in the outcome of the trial, the judge should have warned the jury to exercise caution before relying on it. However, we do not think there is any substance in that point either since there was no reason to think that they were being other than entirely honest with the court or were motivated by considerations of that kind. The particular passage in Mr. Hawkhead's evidence which Mr. Magarian asked the judge to remind the jury of did not really take the matter any further, given the fact that he had already reminded them of the discrepancy between the affidavit and the e-mail. As to the wider aspects of the solicitors' evidence, the jury were already in a good position to assess what weight to attach to what they had heard about the divorce proceedings, which were in any event peripheral to the real issues in the case. For all these reasons we are unable to accept that the judge's refusal to remind the jury of their evidence renders the convictions unsafe.
43. Mr. Christie submitted that these various shortcomings, as he would have it, in the management of the trial and in the summing-up reinforced each other, resulted in the unfairness to the appellant and so render the convictions unsafe. We are unable to agree. Whether these criticisms are viewed individually or in conjunction with each other we do not think that they have that effect.

Good character

44. When the judge came to direct the jury in relation to the appellant's character he said this:

"Now Mr. Ahmed is a man of 44, I think, and he is a man of positively good character. You heard his accountant. Not only has he not got any convictions, but you actually heard his accountant come along, Mr. Mark Brudenell. He had known him, I think, for about 12 years. He speaks very highly of his integrity and his general character.

What relevance has that got? Well, plainly it is not a passport to an acquittal. All of us start life with a good character. If we could always pray in aid our good character, why nobody would ever be convicted of anything and we could close these courts down.

It does have relevance. It is limited, and it is this. It is something you can take into account in considering whether he has been telling you the truth upon his oath. In short, it is something that goes to his credibility. It is not a guarantee of course that he has been telling you the truth, but it is something you can take into account in deciding whether he has or whether he might have been.

You can also say this: he is a man of good character and his own wife Kulsum Khan says that in the past he has not been violent to her, so is it likely that he would have stooped to committing offences of this nature, those that are alleged against him now? It does not mean to say that he did not for a moment, but it is something you can take into account in that way: is it likely this man of good character would have stooped to such conduct?"

45. Mr. Christie submitted that this direction was defective because the judge directed the jury that the relevance of good character was "limited", because he had interposed qualifications three times in the course of giving it, because he had used the word "can" where he should have used the word "should" and because part of it was phrased in the form of rhetorical questions. In support of this last point he drew our attention to the decision of this court in Lloyd [2000] 2 Cr.App.R. 355.
46. In relation to a matter as important as the good character direction there is much to be said for adopting, with suitable modifications where necessary, the specimen direction published by the Judicial Studies Board. To do so should ensure that the direction covers the appropriate ground in a clear and concise manner, leaving no room for criticism. However, what ultimately matters is whether the judge has conveyed to the jury with sufficient clarity the essence of the necessary direction. It was unnecessary and unwise of the judge in this case to tell the jury that good character is of limited relevance, since the extent of its relevance should become clear if a proper direction is given. Similarly, comments of the kind that "it is not a passport to an acquittal" adds nothing of value and risks appearing to detract from the value of the direction. However, we do not think that the comments made by the judge in this case were sufficient to undermine the efficacy of the direction taken as a whole. It is for the jury to decide how much if any weight to give to good character in all the circumstances of the case.
47. The use of rhetorical questions raises similar considerations, but it is necessary to deal with the submission that for all practical purposes this case is on all fours with that of Lloyd. In Lloyd the appellant had been charged with indecent assault and buggery. He was a man of good character, whereas the complainant had a substantial record of offences of dishonesty. The real question for the jury was whether they believed the complainant or the appellant. When dealing with the appellant's character the Recorder had couched his directions almost entirely in the form of rhetorical questions. Quashing the conviction, this court observed that the case was one in which the issue of credibility was of the greatest importance and relevance and that it was particularly important that the jury should be told that, when considering whether the appellant's evidence was truthful, they must bear in mind that he was a man of good character. The court expressed the view that character directions should not be given in the form of a question, but in the form of an affirmative statement, although it acknowledged that a direction in relation to propensity in that form might not render a verdict unsafe if included in a direction which was appropriate overall.
48. Mr. Christie submitted that the direction in the present case suffered from the same defects as that given in Lloyd, but in our view there are significant differences between the two cases. We recognise, of course, that in this case too credibility was an important issue, but there the similarity ends. Here there was other evidence tending to support the prosecution case, not least the fact that the complainant was found locked in the room and had to be freed by the police when they arrived at the house. The first limb of the direction was given in direct terms and although the second was put in the form of a rhetorical question, we do not think the jury can have failed to understand that they were entitled to take his good character into account when deciding whether he had committed the offences with which he was charged. Although the direction was phrased less happily than might have been the case, we do not think that it was so defective as to render the conviction unsafe.

Reasonable belief in consent

49. We turn next to the application for leave to appeal on a ground not included in the original grounds of appeal, namely, that the judge wrongly withdrew from the jury the defence that the appellant reasonably believed that the complainant consented to sexual intercourse when in fact she did not. That possibility was said to arise from the fact that both the complainant and the appellant are Muslims and have grown up in a culture in which a wife is expected to submit to her husband's wishes in all things. Indeed, the complainant had admitted in evidence that she had been brought up to submit to her husband's wishes in all aspects of life and had sought to do so while their marriage lasted and they lived together. So, it was suggested, she may have been willing to submit to sexual intercourse without actually consenting or that he may reasonably have believed that she was so consenting.
50. When considering this argument it is necessary to bear in mind the nature of the cases being advanced at the trial. The prosecution case, supported by evidence from the complainant, was that she had made it perfectly clear by screaming and resisting that she did not consent. The appellant's case was that she had been an enthusiastic participant and had shown positive signs of enjoyment. The two cases could hardly have been farther apart. The judge directed the jury that in order to convict the appellant they had to be sure that he did not reasonably believe that the complainant was consenting and that that was a matter to be judged by reference to all the circumstances. No criticism was, or could be, made of that direction.
51. The judge did refer to the fact that the complainant and the appellant are both Muslims, but only to make it clear that whatever Islamic law may say about relations between a man and his wife, the law of this country does not permit a man to have sexual intercourse with his wife against her will. However, he did not in any sense withdraw from the jury the possibility that the appellant may have reasonably believed from the complainant's silence that she consented. It is true that he did not invite them to consider that possibility, but given the competing accounts there was no need for him to do so. Indeed, to have done so would be likely to have caused confusion. We do not think that there is any merit in this ground.
52. The appeal against conviction is therefore dismissed.

Sentence

53. The appellant was convicted of abducting the complainant from Leeds, taking her against her will to his house in Southend, raping her twice and locking her in a room when he left. She was released when the police entered the house and broke down the door of the room in which she had been confined. Viewed overall that was a serious catalogue of offences which represented a continuous course of conduct lasting something over 24 hours. The judge described it as probably the most traumatic 24 hours of the complainant's life and one can see from his sentencing remarks that he had originally been of the view that it would be necessary for him to pass a sentence of imprisonment for public protection. Having heard counsel in mitigation, however, he was persuaded that he need not do so. Instead he passed a determinate sentence of 9 years' imprisonment as mentioned earlier.
54. Mr. Christie submitted that in passing a sentence of that length the judge failed to have sufficient regard to the appellant's cultural background, the absence of any long-term consequences for the complainant and the fact that the appellant was of positively good character who had built up a thriving business with a substantial turnover.
55. In Millberry [2002] EWCA Crim 2891, [2003] 1 Cr.App.R. 396 this court indicated that the starting point in sentencing for rape where any one of a number of aggravating features (including abduction and holding the victim captive or where the same course of conduct has included more than one rape) should be 8 years' imprisonment. In this case both those aggravating features were present and it was not suggested that Islamic cultural values concerning the relationship of husbands and wives within marriage either condone behaviour of that kind or provide any mitigation for it.
56. After a trial lasting nearly three weeks, in the course of which both the complainant and the appellant had given evidence, the judge was well placed to assess the gravity of these offences. The sentence was severe, but we are not persuaded that it was manifestly excessive having regard to the totality of the appellant's conduct and the renewed application for leave to appeal against sentence is therefore dismissed.