England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2010

Lord Justice Maurice Kay :

1. On 30 June 2009 in the Crown Court at Luton the appellant was convicted of false imprisonment, two counts of indecent assault and one count of rape. He was sentenced to a total of nine years and six months' imprisonment. He now appeals against conviction by leave of the single judge.
2. The four offences were alleged to have occurred on the same occasion. On 5 January 1989 at about 10.30pm the female complainant was driving home from a meeting at a rowing club. She was overtaken by a car driven by a Mr J with whom she had been having a casual affair. He was a married man. They parked their cars close to the Priory Marina in Bedford and had sexual intercourse in her car. He returned to his car and left the area. She was preparing to leave but her seat belt malfunctioned as a result of which she got out of her car. A passing police officer, Police Constable Whyatt, asked if she was alright. She said she was and he left in his police van. The case for the Crown was that, moments later, a man grabbed her from behind. He walked her to an area covered by leaves close to a river and told her to lie face down. He removed her skirt, underskirt, jacket and blouse. Her knickers were pulled down and her bra was undone. He lay on top of her. His legs were bare. This was the evidence that supported the first of the indecent assaults. They returned to her car and he ordered her to drive a short distance. They stopped. She moved to the front passenger seat and he to the driver's seat. There he forced her to give him oral sex. That was the second indecent assault. He then had vaginal sexual intercourse from behind as she half knelt and half lay on the seat. That was the rape. They returned to the Marina where he wiped parts of the car with a piece of clothing. There the false imprisonment finally ended. She returned home and reported the incident to her parents. She went to a police station where she was medically examined and interviewed. Intimate swabs were taken. DNA profiles from two individuals were obtained. One matched Mr J, the other was unknown.
3. In October 2008 the original investigation was reopened. A line of enquiry led to the appellant. He provided a voluntary DNA sample. It matched the second DNA profile taken from the intimate swab almost 20 years earlier. The appellant was arrested and interviewed on two occasions. He denied rape and said that the DNA evidence was wrong.
4. In her evidence at trial the complainant described driving home from the scene, a journey of about 10 minutes, and telling her mother on arrival that she had been raped. However, because her mother did not know of the affair with Mr J, she gave a false account of having been kidnapped from the rowing club. She did not correct that until the following morning. When the complainant told her mother of the rape she was white faced, dishevelled and shaking. Her underskirt was missing. It was later discovered at the scene of the first alleged assault by a police officer.
5. The appellant gave evidence. At the time he had been a park ranger at the adjacent Priory Country Park. In 1989 he had been promiscuous and had been able to provide a list of women with whom he had sexual intercourse at about that time. One woman on the list was referred to by her forename which was the same name as that of the complainant. The appellant said that that person had worked in the town hall, lived in B and had a horse. He had recognised the complainant as that woman when she had entered the court to give evidence. He said that they had met some time between 1 and 5 January 1989. They had chatted, in the course of which she had mentioned horses and he had said that he worked at the Priory Country Park. This had led to their having sexual intercourse in her car when they met by arrangement. It had been at lunch time in the car park. It had been entirely consensual.
6. At trial, there were two areas of evidence which are important in the context of this appeal. The first was evidence adduced by the prosecution as bad character evidence. A police officer, Detective Constable Simpson, described how in the 1990s he had seen the appellant at the Priory Marina wearing camouflage clothing and with a blackened face. The appellant had shown him a military specification night sight. Erroll Newman, a warden at the Priory Country Park since 1993, said that the appellant would sometimes come into the kitchen wearing camouflage trousers or jackets and would apply camouflage paint to his face. Mr Newman said that the appellant's purpose (unrelated to his job) was to check on drug addicts who used the car parks. He said that the appellant would come across couples in cars and would watch them. Roy Bates, a retired fisheries warden, said that the appellant was obsessed with sex. He was interested in "dogging", that is watching other people having sex. The appellant went to "dogging" parties and Mr Bates described one occasion on which the appellant was blacking his face prior to going to the car park to watch couples having sex. Clive Betts said that the appellant, whom he had known since about 1993, told him that he had been "into swinging". In his evidence, the appellant said that he had spoken to Mr Bates about sex, "swinging" and "dogging". He agreed that in the mid-1990's he had done "night patrols". For a period of about 18 months starting in about 1994 he had worn camouflage clothing and blackened his face. He had also used a night sight. All this was to prevent drug addicts from seeing him in the car park. If he saw such people he reported them to the police. He would also see couples having sex but he would ignore them. He denied that he enjoyed watching people having sex in cars.
7. We have referred to the police officer who spoke to the complainant at her car late at night on 5 January 1989. He was Police Constable Whyatt. He made a witness statement soon afterwards. It was served as unused material. In the event, he was called by the defence. He is now retired. He described arriving at the scene at about 11.45pm. He is a dog handler and was in the habit of taking his dogs there to exercise them. At the scene he saw two vehicles. He shone his torch and saw a man and a woman in the back seat of one of them. He proceeded to exercise his dogs for about 15 to 20 minutes. He then returned to where he had parked his van. The other two vehicles, a Fiesta and a Cortina, were still parked in the same positions. He saw the man get out of one car and drive away in the other. The woman was then out of her car doing something with the seat. Her seat belt was stuck. He spoke to her. She said she was alright. He then went to the car park where he remained for a while. The Fiesta then passed him and the woman acknowledged him. By then it was about 10 or 15 minutes past midnight. We shall return to his evidence. The submission on behalf of the appellant is that, if correct, it substantially contradicted and undermined the account of the complainant.
8. The submission on behalf of the appellant at trial was that the account of false imprisonment, indecent assault and rape, was a fabrication to cover up the complainant's affair with Mr J which might now be disclosed as a result of the observations of the police officer.

The grounds of appeal

9. There are four grounds of appeal, of which Mr Jefferies QC emphasises two as the main grounds. The first relates to the ruling whereby the judge allowed the Crown to adduce evidence of bad character relating to the appellant's nocturnal habits in the vicinity of the Marina. The second is in the form of a criticism of the summing up in relation to the evidence of PC Whyatt. The third and fourth grounds also relate to the summing up but Mr Jefferies advances them with restraint and on the basis that neither would make much impression in isolation. He invites us to consider them cumulatively, in support of the two main grounds.

1. The bad character evidence

10. We have referred to the evidence given by prosecution witnesses about the appellant visiting the area of the car park at night, dressed in camouflage clothing, with camouflage paint on his face and with a military specification night-sight. They also referred to his interest in "dogging". The Crown applied to adduce all this as bad character evidence under section 101(1)(c) of the Criminal Justice Act 2003 as important explanatory evidence. Section 101(1) provides:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if …

(c) it is important explanatory evidence."

11. This is amplified by section 102, which provides that evidence is important explanatory evidence if

"(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial."

12. The application was put on the basis that the material was explanatory of the anticipated evidence of Mr J that, after he and the complainant had had intercourse, he opened the car door and thought that he could hear footsteps. He also thought that he saw a figure. The witness statement of the complainant was to the effect that Mr J mentioned the footsteps, whereupon she too thought she could hear some. The judge's ruling was in these terms:

"The areas [of evidence] that have been set out under the heading 'dogging' … do seem to me to be relevant. They are not unduly prejudicial in accordance with the terms of the Criminal Justice Act. They are relevant for the reasons that have been set out …

… those aspects that relate to 'dogging' I do rule to be admissible as being important explanatory evidence for the reasons already given.

It has been argued on behalf of [the appellant] … that there are paragraphs which are prejudicial in that they talk about night vision goggles etc and wearing paint to make himself invisible. I am satisfied that that is relevant. It is not unduly prejudicial. It may be prejudicial but if the fact is that he did wear face paint to conceal himself and have night vision goggles on going out late at night in order to watch what was going on, the Crown argue that it is an integral part of his sexualised behaviour in that it enables him to watch what is going on without being identified or identifiable and, effectively, being able to see in the dark, which is exactly the situation that we are concerned with in this case. It does seem to me, therefore, to be a relevant part of the overall picture in relation to what he was up to at this time."

13. When the judge referred to the evidence being "relevant for the reasons that have been set out" he was probably referring to the written submission of the Crown at trial that the evidence was "relevant and probative to the jury's understanding of the case as a whole, especially in the context of [the] contention that he was at the relevant period sexually promiscuous … and goes beyond being attractive only on a superficial examination of the facts".
14. At no stage did the Crown seek to adduce this evidence as evidence of "propensity to commit offences of the kind with which he is charged" within the meaning of section 103(1)(a). It is common ground that it is not propensity evidence for the simple reason that there is no evidence that the appellant had on any other occasion committed offences of the kind with which he was charged. It is important not to confuse "important explanatory evidence" under section 101(1)(c) and propensity evidence which is a subset of evidence which is "relevant to an important matter in issue between the defendant and the prosecution": section 101(1)(d). Section 101(1)(d) carries with it the limitations set out in section 101(3) and (4) and, if the evidence is of a propensity to commit offences of the same kind, there is a further limitation in section 103(3). Giving the judgment of this Court in Davis [2008] EWCA Crim 1156, [2009] 2 Cr App R 17, Hughes LJ said (at paragraph 34):

"… evidence of propensity should not readily slide in under the guise of important background evidence and … evidence which is admitted under gateway (c) should not readily be used, once admitted, for a purpose, such as propensity, for which additional safeguards on different tests have first to be met."

15. The first question we have to consider is whether the evidence of the appellant's nocturnal activities in the area on other occasions was properly admitted as "important explanatory evidence".
16. In our judgment, it was not. It simply did not satisfy the test of evidence without which the jury would find it impossible or difficult properly to understand other evidence in the case, nor was its value for understanding the case as a whole "substantial": section 102. The evidence it was said to explain was the evidence, mainly from Mr J, about footsteps. That evidence was not impossible or difficult to understand. On the contrary, it was readily intelligible. Its deficiency was that the Crown could not identify the footsteps with the appellant. Nor, in our view, could they readily do so by resort to the bad character evidence, not least because it all related to a time four or five years or more after 5 January 1989. Accordingly, we consider that the judge was wrong to admit the evidence by reference to section 101(1)(c).
17. The next question is whether the evidence was admissible on any other basis. We have already said that it was not evidence of a propensity to commit offences of the kind with which the appellant was charged. However, gateway (d) is not confined to propensity in that sense. Propensity is, as we have said, a subset of gateway (d) which extends more widely to evidence which is "relevant to an important matter in issue between the defendant and the prosecution". According to section 103(1), such matters "include" a propensity to commit offences of the kind with which he is charged. They are not limited to that.
18. The question whether the evidence was admissible, not as propensity evidence within the meaning of section 103(1)(a), but otherwise as evidence "relevant to an important matter in issue between the defendant and the prosecution", has to be considered on the basis that an "important matter" is defined in section 112(1) as a "matter of substantial importance in the context of the case as a whole". We must also keep in mind that, in relation to gateway (d), section 101(3) and (4) apply:

"(3) The court must not admit evidence under subsection (1)(d) … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matter to which that evidence relates and the matters which form the subject of the offence charged."

19. Two questions arise: (1) if not as evidence of a propensity to commit such an offence, what was the "important matter" to which the bad character evidence related? (2) If such a matter is identified, ought the evidence nevertheless to have been excluded under section 101(3)? As to the first question, the Crown had a legitimate interest in proving that the appellant was in the habit of frequenting the car park and the surrounding area late at night. Evidence to that effect, without more, was undoubtedly admissible. The fact that the witnesses could only testify about events a few years after 5 January 1989 would not be fatal to such admissibility, not least because the appellant was employed as a warden or ranger at the Country Park from 1988 onwards. We do not understand evidence admissible under section 101(1)(d) to be limited to evidence of events before the index offence, any more than similar fact evidence was so limited at common law: see Thompson [1918] AC 221. To the extent that the Crown wished to adduce evidence that the appellant was in the habit of frequenting the area in question late at night, we do not think that there could be any objection to its admissibility. Indeed, in that sanitised form, it would not be classifiable as bad character evidence attracting the regime of the 2003 Act. However, that still leaves the question whether the truly "bad character" aspects of the evidence – the "dogging", the camouflage, the night sight and so on – can be said to have related to an important issue between the defence and the prosecution. Once propensity under section 103(1)(a) falls out of the picture (as we have held that it does), the only "issue" to which the truly bad character evidence can be said to have related is the "footsteps" issue. That the appellant was also involved in consensual promiscuity at the time was not probative of the offences with which he was charged. The Crown was seeking to establish that the footsteps first heard by Mr J were those of the assailant and that they were better able to prove that if they could adduce evidence not just of the appellant's habit of frequenting the area late at night but also of his interest in "dogging".
20. In our view, the footsteps issue was given greater prominence by the Crown than it merited. After all, PC Whyatt walked sufficiently close to the complainant's car during her tryst with Mr J for him to shine his torch to see what was happening. We tend to the view that, realistically and in the light of all the other evidence in the case, the footsteps issue was probably not of "substantial importance" and did not justify the admission of the bad character evidence under gateway (d).
21. Whether we are right or wrong about that, we turn to the second of the two questions identified earlier – that of exclusion under section 101(3). It seems to us that the evidence that was admitted was highly prejudicial. Roy Bates, whose evidence was dismissed by the appellant in the witness box as "total rubbish", considered that the appellant "was obsessed with the sexual side of life". He added:

"He'd go to dogging parties … I came in one evening at about nine o'clock and he was in the office. His duty would have ended at five but he was there blacking his face and he had night vision glasses. It transpired that he was going to watch couples in the car park having sex. That's what he told me … He referred to dogging as one of his activities."

22. Evidence of this kind, along with the reference by another witness, Clive Betts, to "swinging" parties, would have been likely to cause the appellant significant disadvantage in the eyes of the jury without any substantial and relevant increase in the strength of the real case against him. The evidence that the complainant's assailant was a voyeur was itself very thin. The evidence was not of a man wearing camouflage clothes or with a blackened face. The evidence about consensual "dogging" and "swinging" parties was irrelevant but gratuitously prejudicial.
23. We have come to the conclusion that, even if the truly bad character evidence could have been squeezed through gateway (d), which we doubt, its permissible probative value was very low and its prejudice to the appellant was very high such that it ought not to have been admitted. We take note of the fact that the judge gave the jury a propensity-style direction:

"[The evidence of 'dogging'] … does not make him a rapist. If it was … in the mid-nineties, it does not make him a rapist in 1989."

24. Nevertheless he also directed that the evidence could strengthen the assertion by the Crown about "someone hanging around making footsteps". We do not consider that the judge's directions, taken as a whole, were such as to alleviate the prejudice to which we have referred.
25. There is another point that calls for comment. In truth, the Crown did not need any of the bad character witnesses to establish that the appellant was in the habit of frequenting the car park late at night as a kind of vigilante. He admitted all that and more (but not "dogging") in his police interviews. It seems to us that what the Crown were entitled to establish was not really disputed. It could have been achieved by a combination of the edited interviews and appropriate formal admissions. The distracting sideshow of the bad character witnesses and the satellite disputes engendered by their evidence could and should have been avoided.
26. Although we consider that there was strong evidence against the appellant, we feel driven to conclude that the admission of bad character evidence impacts upon the safety of the convictions.

2. The evidence of Police Constable Whyatt

27. Mr Jefferies makes a powerful submission that, if accepted, the evidence of PC Whyatt rendered the account of the complainant incredible and complains that the judge failed to emphasise this or to make its importance sufficiently clear to the jury. The contextual points he makes include the following:

i) The complainant said that Mr J had left her at about 11.00pm and that her ordeal, which started shortly after, lasted about an hour. She drove home at about midnight – a journey of approximately ten minutes. It is common ground that the phone call to the Police was made from home at 00.17.

ii) PC Whyatt said he arrived at about 11.45. Mr J said he left at about 11.30 to 11.45.

iii) Mr J said he saw the officer exercising his dogs.

iv) The complainant agreed that she spoke to PC Whyatt. He was not challenged in respect of his evidence that she had acknowledged him as she drove away at about midnight. Nor was he challenged about his time of arrival (which was consistent with a record of his having come on duty at 11.00 and having attended another location before driving to the car park).

v) PC Whyatt said he saw the complainant execute a three-point turn before leaving. This was not consistent with her description of driving further into the Park on the orders of the assailant.

28. When the judge came to the evidence of PC Whyatt he began by describing it as "potentially important", adding "You have to make what you can of him – a very experienced police officer, a policeman for thirty years who retired in 1998". He then summarised his evidence in chief and in answer to cross-examination. The summary occupies two pages of transcript. It is not said to contain any inaccuracy. It refers to timings. Not surprisingly, some appear as approximations. For example, a reference in evidence-in-chief to "ten or fifteen minutes" were conceded in cross-examination as "could have been twenty minutes … I wouldn't think longer but it could have been".
29. By linking the evidence of PC Whyatt to the complainant's evidence of an ordeal lasting for an hour after commencing at 11.00pm, Mr Jefferies is able to paint a picture by reference to which the officer's evidence undermines her account. This is how the defence case was presented to the jury and to us on the basis that the false imprisonment, the indecent assaults and the rape were matters of complete fabrication by a young woman who had been caught in the act of sexual intercourse with a married man. It has never been suggested by the defence that the complainant's allegations may have been true but that her assailant was a person unknown.
30. The case for the Crown was that, for perfectly understandable reasons, the complainant was not accurate about the duration of her ordeal; that her timing of its commencement was unreliable (and possibly affected by the fact that she had initially given an untrue account of the inception); and that, making reasonable adjustments to the accuracy of everybody's timing and recollection, the evidence of PC Whyatt was by no means fatal to the case.
31. We do not accept that the judge sold the appellant short when dealing with the officer's evidence. Mr Jefferies complains about his description of the evidence as "potentially important" but its importance would inevitably depend on what the jury made of it in the context of all the evidence in the case. Moreover, in an earlier part of the summing up, the judge referred to the evidence of the officer as "clearly important". It was not incumbent of the judge to make a second speech for the defence. We have no doubt that Mr Jefferies had recently addressed the jury with all guns blazing on this point. We do not consider that the way in which the judge dealt with it gives rise to a sustainable ground of appeal.

3. Other grounds relating to the summing up

Two topics are raised. We deal with them in order.

(1) Invitation to speculate

32. The case for the appellant at trial was that he had not raped anyone. He was sexually promiscuous at the time and he had provided his solicitor with details of women with whom he might have had consensual sexual intercourse at the relevant time. He referred to one with the same forename as the complainant who lived in B. She had wavy hair, appearing like a perm that had fallen out. She had an interest in horses or owned a horse. She worked in the Town Hall. He believed that she may have had a young child. At trial it was conceded on his behalf that it would have been possible to have obtained details of her name, where she lived and her interest in horses from the case papers. However, she did not have a young child and neither her hairstyle nor her place of employment was referred to in the case papers.
33. In his summing up, the judge made no reference to the complainant's hairstyle, which she had agreed in evidence had been as described by the appellant. The judge referred to the interest in horses, adding:

"He could have got that from the case papers, it transpires. Equally, did she tell him in friendly conversation, as he says, or could he have got it from something in the car? A horsey magazine? A bit of horse equipment in the back of the car? We do not know. She was not asked …

The fact that she worked in the Town Hall is not in the case papers. The defence say that his knowledge of that must be from a chat earlier, when they met in whichever pub it was prior to having consensual sex … Could that have come from another source? In the car, a piece of paper? Inquiries he had made? Again she was not asked … But you have to decide whether it is safe to infer that he must have got it from a social chat prior to consensual intercourse. If so, it is clearly important evidence in favour of his account … But could he reasonably have got it from another source?

You have to be careful, therefore, to make sure that you do not speculate but you are entitled to draw inferences where you feel it is safe to do so."

34. An earlier passage contained a direction as to the difference between inference and speculation.
35. Whilst we accept that the passages relating to horses and the Town Hall were imperfect, we do not consider that, in the context of the case and the summing up as a whole, they caused any injustice to the appellant. The part about horses may have been overdone but that falls away when it is seen in the context of the concession that the complainant's interest was referred to in the case papers. So far as the Town Hall is concerned, it is a matter of common sense that the appellant might have obtained this information from another source. Moreover, the judge directed the jury not to speculate. Neither by itself nor on a cumulative basis does the criticism of this part of the summing up impact on the safety of the conviction.

(2) The appellant's physical characteristic

36. Evidence was adduced at the trial about the appellant having a penile abnormality. It was the subject of an agreed medical report. This aspect of the case was referred to twice, albeit briefly, in the course of the summing up. The submission now is that it was given insufficient emphasis. We consider this to be a wholly unsustainable criticism. There is no suggestion that the abnormality would have made it impossible for the appellant to have committed the offences or that it had inhibited him in his promiscuity at the time.

Conclusion

37. It follows from what we have said that this appeal against conviction succeeds only on the "bad character" point. We reject the other grounds. However, we are satisfied that the conviction must be considered unsafe. If the Crown are minded to seek an order for a retrial, our provisional view is that we should grant one but we shall, of course, consider whatever submissions the parties wish to make on the subject.