England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2 September 2010

 


LORD JUSTICE ELIAS:

1. This is an appeal against conviction. Leave was granted by the full court.
2. On 17 July 2009, in the Crown Court at Cambridge, having been convicted by the jury, the appellant was sentenced by His Honour Judge Hawkesworth on count 1 (rape), to an extended sentence of twelve years, which comprised a custodial sentence of six years and an extended period of licence of six years; on count 4 (assault occasioning actual bodily harm), to three years' imprisonment concurrent; and on count 5 (false imprisonment), to one year's imprisonment concurrent.
3. The appellant was also charged with two further counts of rape (counts 2 and 3). The jury acquitted him on the judge's direction in respect of count 2. In respect of count 3 the jury were unable to agree a verdict and that count was ordered to remain on the file on the usual terms.
4. The rape allegations concerned two separate complainants. The count on which the appellant was convicted concerned an allegation of rape in relation to "CS". The offence took place in January 2002, seven years before the trial took place. The appeal is directed solely against the safety of that conviction.
5. The other four counts, including the two counts of rape which did not result in convictions, arose out of events which took place in 2007 and concerned a different complainant "NH" with whom the appellant had a relatively long-standing relationship. Since the counts relating to the second victim are not directly in issue in this appeal, we will deal with them very briefly.
6. The 2002 rape occurred in the following circumstances. The complainant, then aged 19, had a relationship with a close friend of the appellant, WR. He was the supervisor at a hotel where she worked as a waitress. At that time she lived in bedsit accommodation provided by her employer. The relationship with WR had not lasted a long time and it appears that she thought it more significant than he did. On one occasion WR had contacted her using the appellant's phone. She spoke to the appellant and there was some conversation about whether she might pair the appellant up with her friend. She stored his phone number in case, she said, she needed an alternative contact for WR.
7. CS contacted the appellant on 20 January 2002 because she was unsuccessful in trying to contact WR. There was some banter between them about the appellant getting together with her friend and it resulted in him arriving at her bedsit at 1.30am. This was the first time that she had met him in person. She said that the appellant sought to impress her. He talked of his stocks and shares and said that his father was a Lord. According to her, the atmosphere then changed when he complimented her on her appearance, touched her face and winked at her. The prosecution case was that he wanted to have sex with her. He asked her in earthy language whether she would have sex with him. Initially she did not take this seriously, but later (and whilst he appellant was still there) she left a voice message for WR complaining about the appellant's behaviour. The appellant then sent a text message to WR, inviting him to join them for a drink, but he did not do so. CS complained about a back pain and the appellant offered to give her a back massage. She accepted. He began to touch her breasts and to kiss her forcefully. Again he said that she wanted to have sex with her but she refused. He finally left at about 5.30am.
8. A few days later, on 24 January, the complainant sent a text message to the appellant saying that she was not happy with what had happened and would like to talk about it. He visited her in her room that afternoon. She drank a glass of wine while he smoked cannabis. The complainant said that on this occasion he forced her to have sexual intercourse against her will. He made sexual advances and when she resisted, he pushed her on her bed, removed her clothing and penetrated her. She said that she asked him on three occasions to stop and started to cry. He said that he was not listening. She pushed him away before he had ejaculated. He was "cocky and proud of himself". She was upset and crying and wanted him to leave. Shortly thereafter he did.
9. The complainant went to the hotel where she worked and informed WR of what had occurred. He told her to go to the police. She did so the following morning. She was examined by a doctor that day, but there was no DNA evidence linking her to the appellant in any way.
10. The appellant was arrested and interviewed. His evidence at trial, which was consistent with what he said in interview, was that he had had no sexual contact with the complainant at all. His case was that she had sought to make sexual advances towards him and that he had rejected them because he had a long-standing girlfriend. It was out of pique at his rejection that she made the allegations against him. He said that he went to her bedsit in order to obtain some cannabis. In the course of the interview he urged the police on a number of occasions to obtain telephone records from his phone, as well as those of the complainant and WR. He alleged that the complainant had made many calls and sent lots of text messages to him. The police did not do so. Nor did they interview WR. They tried to contact him to obtain a statement, but he failed to respond to their calls. He later admitted that he was deliberately avoiding them.
11. In the event, the police decided not to take action at that time. The appellant was told six months after the complaint that unless any further evidence was obtained, he would hear no more about the matter. It appears that the police were not prepared to take CS's word that the rape had occurred without DNA support, which was lacking. The matter was resurrected only after the second complainant made allegations of rape some years later.
12. At trial evidence was given by the complainant CS and by the appellant along the lines we have indicated. WR gave evidence in which he confirmed that CS had been to see him shortly after the alleged incident complaining that she had been raped. When he spoke to the appellant, the appellant denied that sexual intercourse had taken place at all.
13. Detective Sergeant Toovey, the officer who investigated the matter in 2002, gave evidence. He accepted that telephone records could have been obtained, as could billing evidence from telephone companies showing the phone traffic over the relevant days.
14. Evidence was also given by the appellant's former wife, AS, who had been in a long-term relationship with the appellant and who had been married to him for a short period of time. This was in the nature of bad character evidence because the appellant had attacked the character of the complainants and other witnesses. AS said that the appellant sometimes assaulted her and was often violent, triggered by his use of cannabis. In addition, he was unfaithful to her and lied to her. He conceded that he had been unfaithful during the marriage, but denied other deliberate assaults upon her.
15. The other two counts of rape (of which the appellant was not convicted) related to the second complainant, NH. One of them concerned an alleged incident when he was said to have raped her whilst she was asleep, and the other was a specific incident which was described in some details before the jury. NH alleged that the relationship had involved physical violence, emotional cruelty and sexual abuse. The incidents covered by counts 4 and 5 (assault and false imprisonment) occurred on an occasion when the complainant asked her parents to take her home following a dispute with the appellant and had then changed her mind. He had accused her of embarrassing him in front of the neighbourhood. He prevented her from leaving the house, punched her, pinned her to the bed and tied her wrists with black cable ties. She suffered a perforated eardrum.
16. At a pre-trial hearing, defence counsel submitted that it would be wrong to proceed on count 1 because it would be an abuse of process. The appellant could not receive a fair trial because the police had failed to obtain the relevant telephone records which he had requested that they obtain and which would have shown the phone traffic between the complainant, the appellant and WR. Furthermore, they failed to obtain a statement from WR at the relevant time. Inevitably, his evidence would be less reliable following a statement taken seven years later.
17. Miss Moore QC, who represented the appellant below and before us, submitted that had such investigations been carried out, they would have supported the appellant's account and undermined the complainant's. It was the appellant who pressed for this information, as indeed he pressed for the DNA test to be conducted. Miss Moore submitted that it was reasonable to assume that the material would be likely to have supported his account of the events.
18. The principles for determining whether a trial should be stayed for abuse of process where there is a failure to obtain potentially material evidence are now well established. The relevant principles were laid down in the leading authority of R (Ebrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293. Although that was a Divisional Court case, the principles there enunciated have since been applied in this court in cases such as R v Medway [2000] Crim LR 415 and R v Dobson [2001] EWCA Crim 1606.
19. In determining whether there is a stay, the principles can be stated as follows:

(1) Was the prosecution in breach of a duty in failing to obtain evidence? In determining that question regard should be had to the Code of Practice applicable to prosecuting authorities and the Attorney General's guidelines. If there is no breach of duty, then the question of stay will not arise.

(2) If the prosecution is in breach of duty, have they acted in bad faith or otherwise in serious default of their duty? If so, then the prosecution should be stayed on that ground alone, irrespective of whether a fair trial would be possible. In these very exceptional cases it is not so much that the defendant cannot receive a fair trial but that it would be unfair to subject him to a trial at all.

(3) Absent bad faith or serious default, there should only be a stay if there is such serious prejudice to the defendant that a fair trial cannot be guaranteed.

(4) In most cases, the difficulty arising from the lack of evidence can be dealt with by an appropriate direction in the trial process itself. It is only in exceptional circumstances that a stay is likely to be appropriate.

In this context it is in our view important to bear in mind two points which were emphasised by this court in Ebrahim. First, the discretionary power to ensure fairness means fairness to both the defendant and to the prosecution. It is important that the guilty are convicted as well as the innocent acquitted. Second, there will frequently be holes in the prosecution case which may result from some failing by the prosecution. Typically, for example, it may be a failure to recover CCTV material which would have been available had steps been taken at the appropriate time. In giving the judgment of the court Brookes LJ said:

"27. .... If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of [relevant evidence] is likely to hamper the prosecution as much as the defence."

20. The trial judge directed himself in accordance with Ebrahim (although he did not recite the principles in precisely the way we have done). He held that in the circumstances it was not unreasonable for the police to fail to pursue these lines of enquiry. He accepted a submission to the effect that it was more difficult at that time to obtain the relevant telephone material than it might be today. He was satisfied that there was no evidence of serious default or bad faith, and therefore it was not a case in which there should be an automatic stay because of the conduct of the prosecution.
21. Finally, the judge said that even if he were wrong about whether the prosecution had been in breach of duty, he was satisfied that the issue could be dealt with during the trial with appropriate directions in the summing-up. In the judge's view the missing material went only to a peripheral issue. Furthermore, whilst the material might have assisted the appellant, equally he considered that it might have helped the prosecution. It was pure speculation to say that it would have been more favourable to one than the other. The judge observed in terms that the fact that it was the appellant who had pressed for the information to be obtained did not justify the inference that it must be to his advantage. In the course of his ruling he said:

"[Investigations] may have revealed material which would have supported the credibility of [the appellant's] account and undermined [the complainant's]. But it remains the position, in my judgment, that they could also well have produced the reverse result because it is by no means outside the scope of the experience of this court that defendants make suggestions to the police which, when actually pursued, produce the contrary result than that which they .... invite the police to find."

The judge was therefore satisfied that, provided proper directions were given in his summing-up, that would suffice to secure a fair trial for the appellant.

22. The principal ground of appeal is that the judge was wrong to say that the case should not be stayed. Miss Moore no longer pursues an argument that there was such a dereliction of duty that it would be unfair to have a trial at all. However, she submits that the judge was wrong to say that there was no breach of duty by the prosecution. She submits that, given the nature of the case and in particular the central significance of credibility, where it is essentially one word against another, the failure to obtain the telephone records meant that the appellant did not have available to him evidence which could, if obtained, have lent real weight to his case.
23. In relation to the breach, Miss Moore relies on certain passages from the Code which emphasise -- for example at paragraph 3.4 -- that an investigator should pursue all reasonable lines of enquiry whether these point towards or away from the suspect. She submits that the failure to obtain telephone records was a clear breach of that duty. The appellant wanted this information and there was no difficulty in obtaining it. The phones could have been checked at that stage for any text messages or voice messages. She contended, although there is no expert evidence about this, that even deleted messages could have been recovered at that time. Moreover, the police did not even obtain relevant billings for the days in question, notwithstanding that it was conceded by the police officer that they could readily have been obtained. When coupled with the subsequent delays, the effect was that no evidence relevant to any of the phone calls was now available.
24. Similarly, although Miss Moore puts far less emphasis on this, the police manifestly could at the time have found WR. Even if he had sought to avoid them, he could readily have been tracked down. She recognised that in view of the fact that WR subsequently made a statement, that failing was now of relatively limited significance, but she asserted that it was indicative of a somewhat cavalier approach by the prosecuting authorities.
25. Mr Harbage QC, on behalf of the prosecution, submits that the trial judge was fully entitled to conclude that there was no breach of duty here. The question is whether it was reasonable for the police at the time not to have carried out further investigations. They plainly adopted the position that absent relevant forensic evidence, they proposed not to seek to try the appellant. In those circumstances it would have been futile to have obtained further information which in all likelihood would simply have had to be retained for no good purpose.
26. In any event, even if the judge had been wrong about that, Mr Harbage submits that there was no basis for saying that there was serious prejudice such as to justify the exceptional conclusion that the appellant could not receive a fair trial. The judge was right to conclude that the relevant phone messages were essentially peripheral to the key issue in this case, which was whether there had been sexual intercourse and whether or not it was consensual. It was highly unlikely that those questions would have dealt directly with any text message or voicemail. It was not even alleged that any relevant phone messages had been sent during the meeting when the rape itself took place. Moreover, he submitted that the judge was plainly right to say that this lack of evidence might have hampered the prosecution as much as the defence. It was pure speculation to say that it would necessarily have assisted the appellant.
27. Mr Harbage further submitted that there was plainly sufficient credible evidence in this case, apart from the telephone records, which could justify a safe conviction. In addition to the evidence of the complainant and the appellant, there was the evidence of WR of the immediate complaint and certain background character evidence. The judge was fully entitled to conclude that this was not one of those exceptional cases where it would now be unfair to the appellant to allow the trial to go ahead.
28. We accept that submission. We have some reservations as to whether the judge was right to conclude that there was no breach of duty, given that the material was so readily available. Even in circumstances where it had been resolved that no trial should take place, it would have been prudent to take those relatively easy steps to obtain as much information as possible concerning the telephone traffic. In any event, we doubt whether the first principle adumbrated in Ebrahim to the effect that if there is no breach of duty there can be no stay is necessarily apt in a case such as this, where the police –no doubt in many cases for good reason – do not carry out investigations, which they would do if a trial were to be held, on the grounds that they do not at that time intend to prosecute. It seems to us it may indeed be reasonable for the authorities not to wish to waste resources and time on obtaining material which they think is unlikely to be relevant because it is not anticipated that a trial will occur.
29. However, in such circumstances we think that even if the prosecution had not acted in breach of duty, there may still be cases where the absence of that evidence, even if not the result of any such breach, could render it unfair to try the appellant. If that were the case, then a stay would have to be granted, even if no one was at fault. Article 6 would seem to dictate that outcome. However, we envisage that such circumstances will arise only rarely.
30. But whether or not there was a breach of duty in this case, we are satisfied that the judge was fully entitled to conclude that there was sufficient potentially credible evidence to allow this case to proceed. We recognise that credibility was, as Miss Moore says, an important feature in this case. The evidence, if it had been obtained, may indeed have cast some light on that issue. But it still would not have gone to the heart of the case. Moreover, in our view the judge was right to say that it was speculation to determine whether the text would have supported the prosecution or the defence. The fact that the appellant was pressing for it was far from decisive on that issue. As we have said, it is an important element in the concept of fairness and in the decision whether or not to grant a stay that the interests of the prosecution and those who allege that they are victims of serious crimes must also be weighed in the balance.
31. We think therefore that the judge's decision not to stay proceedings was in accordance with his discretion and in accordance with legal principle.
32. The other two grounds were, as Miss Moore accepted, not so much separate grounds of appeal but rather factors in support of her primary case. Given our conclusion on that, we will deal with them briefly. The first related ground was that the judge did not satisfactorily sum up the case so as to deal adequately with the potentially adverse consequences to the appellant for failing to obtain this information. She submitted that the judge should have emphasised more fully the nature of the appellant's concerns stemming from the lack of evidence and the potential adverse consequences.
33. We do not accept this submission. The judge dealt with the issue relatively early in his summing-up when he said this:

"Even if you believe the delay here is perfectly understandable, if you believe that this has put the defendant at a real disadvantage in putting forward his case, why then take that into account in his favour when deciding if the prosecution has made you sure of his guilt.

For instance, Miss Moore points to the absence of phone records as placing the defendant at a disadvantage when countering [CS's] allegations.

She says they could have supported the credibility of his version of events, rather than hers.

Well, of course, that is right.

But, equally, I suppose, they could have supported [CS's] version of events.

Although Miss Moore points to the fact that the defendant was calling for the records in his interview, he would hardly be likely to do so if they did not support his case.

If you think the defendant was disadvantaged by the delay, and the unavailability of records, take it into account in his favour."

Then towards the end of his summing-up, when dealing with the appellant's interviews, the judge commented that the appellant had emphasised that he was anxious for the phone records to be retrieved to see if any sort of material could be recovered which would corroborate what he was saying about these events.

34. In our view the matter was put fairly before the jury. Indeed, the judge also drew attention to the fact that it was the appellant himself who was pressing for this information. That is an important feature which is relied upon by Miss Moore.
35. In addition, the jury had before them the transcripts of the interview where it was clear that the appellant sought this evidence. No doubt in her closing submissions Miss Moore would have placed significant emphasis upon it. We do not think, therefore, that there is any unfairness in the way in which the judge dealt with the matter.
36. The third ground is also to some extent a makeweight. It is put in this way. Miss Moore observed that in 2002 it was decided to take no action with respect to the original rape allegation. Action was taken only after a complaint from the second complainant, NH. Indeed, she did not initially complain about any sexually impropriety. It was only at some stage after she had made allegations of physical abuse and false imprisonment.
37. Miss Moore submits that in many ways it was unsatisfactory that the two cases should be heard together. However, she says that she could not realistically have persuaded the court to sever the case in count 1 from that in counts 2 and 3 because there was an argument that the judge should allow the jury to hear the complaints with respect to both complainant on the basis that they may be cross-admissible on grounds of propensity. The judge had said that he would not determine that matter until the evidence had all been heard. In fact, the judge subsequently gave a bad character direction when he did not allow cross-admissibility on propensity, but he allowed the evidence to be adduced on the basis that if the jury were to find proved the rape count against one of the complainants, they would be entitled to have regard to that fact and to say to themselves that it might be an unlikely coincidence that there would be two separate allegations of rape from two separate complainants. The judge summed up this aspect of the case as follows:

".... What is implicit in this point is a contention by the Crown that if you were sure in respect of the allegations of one of the girls and you were sure two separate complaints of rape must be more than a coincidence, then your certainty in respect of one of the girls could assist you in determining the truth of the other's complaint of rape."

The judge also directed the jury that they must be aware of any possible risk of one allegation of rape having influenced the mind of the other complainant.

38. It was suggested that this way of summing up the matter to the jury may have been more favourable than the law requires in that it suggests that the jury first had to be sure that one of the allegations was sustained before they could take that into account when assessing the other counts. It may be that the requirement is not that high.
39. Be that as it may, in this case the situation was that the jury were unable to reach a verdict in relation to one of the rape complaints of the second complainant. Miss Moore says that in the light of that, and given the judge's direction, it must be recognised that some members of the jury may have considered that the appellant was guilty of the rape in count 3 and may have used that to influence their conclusion that he was also guilty on count 1.
40. We make two points about that submission. First, it is not an argument related to the particular circumstances of this case, namely to the delays, to any failure by the prosecution or to anything of that nature. If correct, the argument would run where potentially cross-admissible counts resulted in a conviction on one and a hung jury with respect to the other.
41. Second, in any event, in our view the judge is telling the jury that if they (the jury) are sure about one of the counts, then they can if they wish use it to support their verdict in the other. He is not telling them that they can use the conviction in that way if they as individual members of the jury are satisfied of guilt. Miss Moore says that is not clear. We disagree. The judge summed up to the jury as a body. Accordingly, in our view, the premise of the argument is not sustainable. Indeed, as Mr Harbage pointed out, all the evidence suggests that the jury took considerable care over this case. They retired for a very lengthy period of time, and the fact that they were unable to reach a verdict on one count, but reached findings of guilt on other counts relating to the same complainant suggest that they properly took on board their obligation to look at the evidence with respect to each count individually. Mr Harbage submits, and we accept, that there is no reason to suppose that the jury failed properly to follow the directions of the judge in this matter.
42. For all these reasons this appeal against conviction is dismissed.

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