England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 22 January 2010

1. LORD JUSTICE PITCHFORD: This is an appeal against conviction with the leave of the single judge.

1. The appellant, who is now aged 24, faced an indictment containing 6 Counts, all of which charged him with offences committed against the 17 year old female complainant. Count 1 was an allegation of common assault committed on 17 July 2008; Count 2, witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994, committed it was alleged on 18 July 2008; Count 3, rape contrary to section 1(1) of the Sexual Offences Act 2003 on 26 July 2008; Count 4, an allegation of false imprisonment committed the following day on 27 July; Count 5, an allegation of criminal damage contrary to section 1 of the Criminal Damage Act 1971, also committed on 27 July; and Count 6, an allegation of common assault also committed on 27 July 2008.
2. On 26 March 2009, at Inner London Crown Court, the appellant pleaded guilty to Counts 5 and 6. The trial proceeded, before HHJ Fraser and a jury, upon the remaining four Counts. The claimant gave no evidence in support of Count 2, witness intimidation, in respect of which, therefore, a formal verdict of not guilty was returned at the close of the prosecution case. On 1 April 2009, the jury returned unanimous verdicts of guilty upon Counts 1 and 3, and a verdict of guilty by a majority of 10 to 2 upon Count 4.
3. The grounds in respect of which the appellant has leave are: 1) that the judge failed to provide the jury with adequate directions as to the issue of consent in Count 3; and 2) that the judge failed adequately to deal with the complainant's inconsistencies in his summing up. The appellant renews his application for leave to advance a third ground. It is argued that the appellant gave an account concerning Count 1 which could, if the jury rejected self-defence, have supported a verdict of guilty on Count 1. The appellant complains that the judge failed to direct the jury that they could convict of Count 1 only if they rejected the defendant's evidence and were sure that the complainant's account was true. Miss Goodall represented the appellant at his trial, and has advanced these grounds before us this morning. We wish to commend the brevity and focus of her submissions which lost nothing but gained a good deal by those qualities. We are grateful to her.
4. The complainant and the appellant had been in a sexual relationship for about 3 months. They were introduced by a mutual female friend, in whose flat the complainant was living. On 17 July 2008, the appellant visited the complainant at the flat. The prosecution case was that the appellant wished her to move out of the flat to live with him and she refused. The complainant gave evidence that he became violent; he held her by the neck and marched her out of the flat. Once outside the complainant managed to avoid his grasp and returned to the flat. The appellant, she said, threw her clothes out of the flat and smashed her phone. The appellant stood outside threatening her. He climbed up the balcony and again man-handled her down the stairs to a garage, where, the complainant said, the appellant kneed her in the stomach and banged her head against the wall. He held her neck and asked her, "are you prepared to die?". This was the incident which formed the allegation in Count 1.
5. The appellant denied the assault. He accepted that there was an argument during which they were both shouting. The complainant made a lunge at him; he held her by the arms, but only in order to move her away to enable him to leave the flat.
6. At the close of the evidence, prosecuting counsel confirmed that he would not be seeking a conviction upon Count 1 on the basis of the appellant's account of events which, as we have said, raised an issue of self-defence. The jury would be invited, therefore, to convict on Count 1 only if they were sure that the complainant's account, in which the issue was self-defence did not arise, was true. The judge's direction in respect of Count 1 ended with these words at page 11 letter B of the transcript of summing up:

"Given that there was no question of self-defence, or that any of the actions were an accident, having been raised in this case, the sole issue for you in Count 1 a factual one. Whether you are sure the defendant dragged her out of the flat by the neck to the garage, kneed her in the stomach, and put his hands around her neck. If you are sure he did assault her in that way, as has been alleged, then you may convict. But if you are not, the verdict is not guilty."

7. In our judgment, those words left no room for misunderstanding by the jury. They could convict of Count 1 only if they accepted the account of the complainant and rejected the evidence of the appellant. We therefore refuse leave upon the renewed ground.
8. At some stage, shortly after 18 July 2008, the evidence was that the complainant and the appellant resumed their sexual relationship. It emerged during the course of the evidence that this was one of the features of their relationship; at one moment violent and unpleasant, the next moment a making up. On the afternoon of 26 July there was another argument between the complainant and the appellant concerning her refusal to leave the flat with him. The complainant's evidence was that the appellant accused her of being "naughty". This was said by her to be the usual precursor to violence. He dragged her to the bathroom where he demanded that she run a cold bath. She did that; he forced her head into contact with the water. He dragged her back to the living room where her wrists and ankles were tethered with a scarf. After about 10 minutes she was untied and again taken to the bathroom where the appellant told her this time to run a hot bath. However, before the incident proceeded further in the bathroom, she was returned to the living room where the appellant told her that he wanted sexual intercourse. The complainant's evidence was that she said "no". They were no longer in a relationship and she did not want sex with him. The complainant was wearing underwear beneath her pyjamas but the appellant, she said, restrained her with one hand and removed her underwear and pyjama bottoms with the other. On the sofa in the living room he forced the complainant's legs apart and forced his penis inside her. The complainant was protesting, but once he had succeeded in penetrating her she ceased to resist because she thought it would only get worse if she did. As she put it, "I then let him get on with it". The appellant ejaculated, stood up, and threw the complainant's clothes at her. He asked if she had enjoyed it, when she said "no", according to the complainant's evidence, he slapped her.
9. The appellant's account was that after the argument between them, they made up and had consensual sexual intercourse. There had been no tying up and no coercion. In fact they took one another's clothes off. The complainant gave no indication that she was not consenting. The appellant agreed that he had said in interview that intercourse between them was hard and fast, by which he said he meant fast. He also accepted saying in interview, "She wasn't saying no no no, she was more or less saying yes yes yes".
10. The complainant accepted in cross-examination that there was a stage before sexual intercourse took place when they were attempting to make up. After sexual intercourse, the complainant agreed that she had allowed herself to be cuddled. She told the jury that the appellant left the flat after about half an hour. On his way home he telephoned to apologise to her. She made no complainant at that time. She admitted that she did not complain until 28 July. She had several previous opportunities to complain to the police and she had not taken them. She agreed that she visited the appellant while he was on remand and was affectionate towards him. She explained that she retained strong feelings for him, notwithstanding her complaint.
11. We turn to the facts of Count 4, alleging false imprisonment, since it is submitted by Miss Goodall that if her other grounds have weight then there is an effect upon the safety of the jury's verdict in respect of Count 4. It arises from an incident which occurred on 27 July 2008, the day after the alleged rape. The appellant returned to her flat. Her evidence was that, after some affectionate contact, they again began to argue. The appellant shouted that the complainant had been "a naughty girl". When she flinched from him, he said he would give her something to flinch about. He told her to put her feet in a sleeping bag; he tied her hands behind her back with a scarf and placed a pillow case over her head. She was left in this position, she said, for about 10 to 15 minutes. After untying her he was persuaded to leave.
12. The appellant's evidence was that the incident had not taken place, although he admitted that he did return to the flat and kick the door open. Having gained admission, he slapped the complainant. Those were admissions which were reflected in his pleas of guilty at the commencement of the trial to Counts 5 and 6.
13. In the case of Count 4, evidence was given by Jordan Cook that the appellant had told him that he had tied the complainant's hands together and placed a pillow case over her head, and left her in the bathroom for about 5 minutes. Why had he done that? He said it was because the complainant had been seeing how far she could take him, or words to similar effect.
14. Returning to the Grounds, Miss Goodall argues that the judge's directions to the jury on the issue of consent in relation to Count 3 were inadequate. First, the jury should have received some assistance upon their approach to the issue of consent against the background of a continuing consensual sexual relationship. It is submitted that the judge should have adapted the Judicial Studies Board Specimen Direction, number 53, in which is set out the relevant parts of the direction given by Pill J, as he then was, in the trial of Mohammed Zafar. In particular, it is submitted that the jury should have received a direction to the following effect:

"A female partner may not particularly want sexual intercourse on a particular occasion, but because it is her husband or her partner who is asking for it, she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner is still consent".

15. Secondly, Miss Goodall submits that the judge failed to explain to the jury the distinction between submission, on the one hand, and consent freely given by choice on the other. She argues that submission is a concept which pre-dated the Sexual Offences Act 2003, and the use of the expression without further explanation, in the context of a continuing sexual relationship, was unhelpful and, as a result, unfair and adverse to the appellant. The jury was not directed that if the complainant submitted to his demand, that fact may be relevant to the appellant's case that he believed she was consenting.
16. Thirdly, she submits that the judge misread the appellant's remark in interview to the effect that the complainant "was not saying no, she was more or less saying yes". The mis-quotation, she says, had the effect of changing the emphasis and meaning of that explanation which went directly to the issue of consent.
17. We turn, therefore, to the judge's directions to the jury on the issue of consent. He informed them that there were three elements of which they had to be satisfied so that they were sure before they could convict. The first was whether the appellant intentionally penetrated the complainant with his penis; as to that there was no issue. The second question was, "are you sure that the complainant did not consent to penetration?" Section 74 of the Sexual Offences Act 2003 explains consent as follows:

"For the purposes of this part, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice".

There was, in the present case we observe, no question of capacity which required explanation. The issue for the jury was whether the complainant may have agreed by exercising her free choice.

18. At page 13 letter A of the transcript of the summing up, the judge said this:

"As you know, members of the jury, consent is the key issue in this Count, and a person consents only if she agrees by choice and has the freedom and capacity to make that choice. Mere submission to do something which she did not want to happen does not amount to consent. In deciding if Miss C consented or whether she merely submitted to something which she did not want, you should apply your combined good sense, your experience, and your knowledge of human behaviour and modern behaviour to all the relevant facts, including, obviously, their relationship and what you have heard about that. The law does not require a complainant to have resisted physically, and nor is it necessary to show that a woman's submission was induced by force or fear, although obviously, in this case, as you know, the prosecution evidence is that Miss C did say no, and physically resisted until the defendant penetrated her. And that the defendant used force to open her legs and force his penis into her vagina".

19. The judge proceeded to provide a summary of those parts of the complainant's evidence which demonstrated a lack of consent through the use of force by the appellant. Miss Goodall's argument is that the jury may have misunderstood what the judge meant by submission. Without further explanation, they may have thought that reluctant agreement was the equivalent of submission. Reluctant agreement would, of course, have amounted to consent.
20. We have considered this submission in the context of the judge's directions as to consent generally, and we conclude that we cannot accept her submission. The judge used the word "submission" in juxtaposition to, and in comparison with, the exercise of free choice in order to differentiate for the jury between the two concepts. It does not seem to us that the jury could have understood that submission could mean anything other than the absence of free consent. This is particularly so on the facts of the prosecution case, which the judge, as we have said, immediately went on to summarise by reference to the use of force. We agree with the submission made by Miss Goodall that there are circumstances in which the jury may well require assistance as to the distinction to be drawn between reluctant but free exercise of choice on the one hand, especially in the context of a long term and loving relationship, and unwilling submission to demand in fear of more adverse consequences from refusal on the other. We accept the submission made by Mr Riley on behalf of the respondent, that this was not one of those cases.
21. As we have said, the judge immediately proceeded to remind the jury, in summary, of the evidence of the complainant and the appellant. At the conclusion of that summary, the judge said this at page 17C:

"If you are not sure, members of the jury, about this issue of consent; that she was not consenting, then obviously the defendant is not guilty. Only if you are sure Miss C did not consent to the penetration, go on and consider the third question".

It is to be noted that the judge was asking the jury, as he must, to concentrate on the moment of penetration. That was important not only for the usual reason, but because it was the complainant's evidence that penetration was achieved by force and only afterwards did she decide to "let him get on with it".

22. He then dealt with the third question: reasonable belief. He posed the issue for the jury as follows, commencing at page 17 letter E:

"Are you sure the defendant did not reasonably believe that Miss C was consenting? Are you sure that the defendant did not reasonably believe that Miss C was consenting? Members of the jury, this is an entirely separate question from the issue of whether she consented or not. The issue here is, and what matters here is, the defendant's belief at the time he put his penis into her vagina. A man can hold a reasonable belief that a person is going to consent to sex before hand, but if she then makes clear that she does not want to have sexual intercourse, and he knows that she is not consenting but continues to have sex regardless, he is guilty of rape. If you are sure the defendant did not believe that Miss C was consenting, the prosecution have effectively answered this question. However, if you conclude that the defendant may have had such a belief, you need to consider whether the belief was reasonable in all the circumstances. You should take into account all the circumstances, including any relevant characteristic of the defendant, for example his age, and any steps the defendant took to ascertain whether Miss C consented".

We interpose to observe that it should be noted the judge was not directing the jury that they ought to look to see whether the appellant took steps to ascertain whether the complainant was consenting. He told them that this was one of the factors that they would need to consider when asking the question whether he held a belief that she was consenting.

23. The summing up continues:

"The Crown say that the evidence in this case is clear, and the defendant must have known she was not consenting. They point to Miss C's evidence that firstly she told him "no" when he said he wanted sex; second, that she was holding her trousers trying to stop him pulling them off; thirdly, he forced her legs open and forced his penis into her vagina; and finally, that she told him she did not want to do anything while he was tugging at her trousers. In court the defendant told you that, during the sexual intercourse, she appeared to be enjoying herself. She did not say no at any time, and there was nothing in her behaviour that made him think that she was not consenting."

24. It is again perfectly clear to us that the lines were visibly drawn between the account of the complainant on the one hand, and the account of the defendant on the other. There was not realistically room for a half-way position in which the complainant may have given the appellant a wrong impression.
25. Between pages 33 and 44 of the transcript, the judge provided the jury with a detailed summary of the evidence given by the complainant on the one hand, and the appellant on the other, relevant to Count 3. Having completed that summary, which we need not repeat, the judge concluded at, page 53 letter H, as follows:

"Clearly, members of the jury, to convict the defendant of any Count in this trial, you are going to have to be sure that what Miss C has told you in relation to the particular Count, is both true and accurate".

26. It does not seem to us that there was any prospect in this trial of the jury convicting the appellant upon Count 3 because they misunderstood the meaning of the words "consent" and "submission".
27. We turn to Miss Goodall's second argument concerning the issue of consent. That was her assertion that the judge's incomplete reminder of the appellant's answer in interview, to the effect that "she was not saying no, she was more or less saying yes", the judge was changing the meaning of that remark. As we understood Miss Goodall's submission, she was saying to the jury that the appellant had responded in interview by asserting that the complainant was in fact saying, "yes yes yes". We can see that this is the only basis upon which the argument could be advanced that the judge changed the meaning of the expression by omitting two of the noes and two of the yeses. However, we fail to see how the appellant could possibly have been asserting by that answer that the complainant had been saying the word "yes" during the course of intercourse. The whole point of his answer was that she was "more or less saying yes yes yes", which was utterly consistent with the evidence that he gave, namely that her response to sexual intercourse was physically enthusiastic. In other words, although she was not saying it, that is what she meant.
28. It is not suggested that the judge was intentionally placing any nuance of his own upon these words, and indeed, on the contrary, at page 43 of the transcript, he reminded the jury of the appellant's explanation as follows:

"He was asked what he meant when he said in interview that she was not saying no, she was more or less saying yes. As you remember, he said he was referring to her signals; her body language".

The judge gave, when reminding the jury of this evidence, the page reference in the interview in which it appeared, un-abbreviated. They will have been aware of the answer to which the judge was referring, since Miss Goodall had referred to it in the course of her submissions to the jury.

29. Secondly, it is abundantly plain that the jury could not have been misled by the judge's reminder, since he also reminded them of the passage in the appellant's evidence in which he explained what he meant. We consider that this complaint too has no substance.
30. We turn then to the second and final ground upon which the appellant has leave. Miss Goodall submits that there were many and various inconsistencies in the complainant's account. She was cross-examined upon statements made in writing, statements made to police officers, and statements made to the doctor. It is submitted that the judge made specific reference only to three inconsistent statements, and failed to include in his direction a specific warning that, if the jury concluded that the complainant had been inconsistent about something important, they should treat both accounts with considerable care.
31. The first direction given by the judge concerning inconsistency commenced at page 27 letter E of the transcript. He said:

"Because you heard that Miss C made a number of previous statements which were inconsistent with the evidence which she gave in court. I am referring to Miss C firstly having made a statement in which she said that the defendant had dragged her out of the flat by her hair, while in court she told you that he dragged her out by the neck. She said she did not know why the police had written that in the statement; he had not dragged her out by the hair. She said she had told the police that but had not read the statement before she signed it. She had to deal with the defendant, she said, on 17 July at the time. Secondly, she told the SOIT officer -- you remember, the SOIT trained officer -- and confirmed to Dr Butler that the defendant had broken into her flat. Again, as you know, in court she denied that she had told the doctor that. Thirdly, when she made her initial complaint to Police Constable Cadman, Miss C made no mention of her having been tied up, or that the defendant had placed a pillow case over her head.

Members of the jury, you may take into account any inconsistency, and obviously her explanation for them, in considering her reliability as a witness. It is obviously for you to judge the extent and the importance of any inconsistencies. If, however, you are sure one of her accounts is true, in whole or in part, then obviously it is evidence you may consider when you are deciding your verdicts in this case".

32. It is, therefore, correct that the judge did not explicitly, when dealing with the subject of inconsistencies in his legal directions, direct the jury to treat the complainant's evidence with caution if and in so far as the jury concluded that there were important inconsistencies in her account. The judge did, however, explain that, depending upon the jury's view of the complainant's explanations and the importance of the inconsistencies, they could take that inconsistency into account when judging her reliability as a witness.
33. That, however, was not the end of the judge's reference to inconsistencies. The jury were reminded of further inconsistencies, either between her accounts, or between her account and the allegation of rape. We have found such references at pages 31, 35, 38, 39, 40 to 41, 46 to 47, and 52 of the summing up. It is plain that one of the principal arguments addressed by Miss Goodall on behalf of the appellant to the jury, was that the behaviour of the complainant, either as admitted by her, or proved by her inconsistencies, was inconsistent with the allegation of rape. At page 54C, the judge reminded the jury that it was suggested on the appellant's behalf that the complainant had behaved in ways which were inconsistent with the behaviour of a victim of rape. At letter D at page 54, he said:

"You will no doubt wish to consider these matters and her explanations in assessing her evidence".

34. The judge proceeded to identify these inconsistencies at pages 54 to 57 of the summing up. They were, in fact, the last subject in the judge's summing up before he summarised the appellant's case and gave the jury his closing legal directions on unanimous verdicts.
35. It seems to us that the jury can have been in no doubt, following the submissions respectively made by counsel and the summing up, that a careful consideration of the inconsistent accounts and behaviour identified on behalf of the appellant, both in cross-examination and in closing address, was central to their judgment of the truth of the complainant's allegations of common assault, of rape and of false imprisonment. As we have already observed, ringing in the ears of the jury when they retired, will have been the judge's direction that they might not convict the appellant of any of the allegations made against him unless they were sure that the complainant was telling the truth and that her evidence was accurate. There was, in our judgment, no risk that their effect was minimised in the minds of the jury by directions that they had received.
36. In Miss Goodall's written advice and grounds is a suggestion that, by reason of the structure of the judge's summing up, in which he placed his legal directions in the context of the evidence that the jury had heard, the summing up somehow became disjointed, presumably because placing legal directions in their evidential context is bound to amount to a summary and not a summary of all the evidence. We disagree with that observation, which we are gratified to note was not repeated in oral submissions. The judge summarised both cases while placing his legal directions in context. Legal directions which amount only to an exposition of the law without reference to the facts of the case, are often unhelpful and colourless. Having dealt with legal matters in the way we have described, the judge proceeded to summarise the evidence for both sides, at some length, upon each of the Counts that the jury was considering. In our judgment, the summing up was clear, fair and full. The judge did not fall into error, and for these reasons the appeal must be dismissed.