England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23rd September 2010

1. LORD JUSTICE LEVESON: On 10th December, in the Crown Court at Sheffield before Openshaw J, this appellant was convicted of rape and sentenced to eight years' imprisonment. Having been refused leave to appeal against conviction but granted leave to appeal against sentence, the appellant renewed his application for leave against conviction. In the event, Mr Hillis, for the appellant, has obtained instructions over the telephone not to pursue the renewed application for leave to appeal against conviction. In the normal course of events that would be sufficient to dispose of the matter, but having regard to the particular circumstances, including the disability of the appellant and the fact that Mr Hillis has only been able to take instructions over the telephone, we decline to grant permission to withdraw and deal with the matter substantively.
2. In short, in the early hours of 1st September 1989 the complainant was alone in a Blues club in the Pitsmoor area of Sheffield. She had drunk a considerable amount of alcohol. The appellant approached her and attempted to engage her in conversation. After a short while she decided to leave the club. While waiting for a taxi she was approached by a group of young males, who tried to take her handbag. The appellant came to her assistance and led her away. He took her to an isolated area, where his behaviour changed. He became violent and threatening and threw her to the ground. He put his hand over her mouth and said, "Are you going to let me?" He then proceeded to rape her. After he ejaculated inside her he told her to stay where she was or else he would kill her. Eventually the complainant got up and ran from the area, where she was noticed by a passing taxi driver. He took her to the police station, where she made a formal complaint of rape and described her attacker as a white Jamaican male.
3. An investigation was commenced, during the course of which a statement was taken from her. She was medically examined and vaginal swabs were taken. Her clothes were also taken but later destroyed. Police officers went to the scene of the attack and found an ear-ring, a shoe and a pair of knickers all belonging to her. These items were subsequently lost. At that time the complainant's attacker was never identified.
4. Many years later, as a result of the advantages in forensic science, the case was re-opened and the DNA on the vaginal swabs taken from the complainant was found to match the DNA profile of the applicant. Although her original statement could not be located, a document referred to as "HO Lab 3", dated 5th September 1989, was still in existence and contained references to the original account the complainant had given to the police.
5. On 7th February 2008 the applicant was re-interviewed by the police and later arrested. He admitted that he used to go to Blues clubs in Pitsmoor and occasionally had one night stands, but he denied being responsible for the offence. On 20th March, when further interviewed, he described an occasion when he had sexual intercourse with a girl who was being attacked by a group of males outside one of the clubs. He said that, having rescued her, he took her to the outside toilets near a public house, where she thanked him, kissed him and eventually had intercourse with him. He said that afterwards she had told him that she had a disease and revealed some condition on her stomach, following which he punched and kicked her.
6. The prosecution case was that the appellant had raped the complainant in the manner which she had described to the police. The defence case was that the intercourse had been consensual, the complainant was not credible having drank excessively at the time and as having demonstrated her lack of credibility by reason of her condition over a number of years.
7. Before the learned judge an application was made to stay the proceedings as an abuse of process on the basis of delay and loss or destruction of evidence. The judge acknowledged the potential unfairness in proceeding against the appellant so many years after the event, particularly when so much had been lost, but concluded that the points raised by the defence counsel could not developed during the trial process. In a cogent, clear and extremely careful ruling, Openshaw J rejected the application.
8. When refusing leave, the single judge observed:

"The complainant's DVD interview and the HO Lab 3 Report provided a clear allegation of rape. Any discrepancies between her evidence and that report and the job sheet were fully explored in evidence. The loss of witness statements from the taxi driver and from police officers and the loss of evidence of any injuries did create a disadvantage to the defence in being able fully to test the complainant's consistency and credibility. However, I do not accept that the unavailability of that potential evidence, or any other, left the evidence relied upon 'tainted' by that loss ..."

9. We agree with both the ruling of the learned judge and the conclusions of the single judge. In the circumstances Mr Hillis was absolutely right to seek to abandon that ground of appeal.
10. A further ground of appeal against conviction emerged subsequent to the ruling of the single judge, when it was discovered that the complainant had a conviction in 1991 arising from an incident when, during the course of an argument with her boyfriend at a bus stop, a police officer arrested the boyfriend. When the complainant intervened to try and prevent his arrest and struck one of the investigating officers she was herself arrested and prosecuted for using threatening, abusive, insulting words or behaviour and assaulting a police officer. On paper, leading counsel on behalf of the appellant sought to argue that an application to adduce that material as bad character would have been successful and therefore could have caused this trial to have taken a different course.
11. We reject the submission that, in the circumstances of this case, leave would ever have been granted pursuant to section 101 of the Criminal Justice Act 2003 for that conviction to be adduced. Thus, there is nothing in this point and Mr Hillis was right to seek to abandon the entire application for leave to appeal against conviction.
12. On sentence, the ground upon which the single judge granted leave concerned the change in regime in which those serving long sentences are eligible for parole and release on licence. As Mr Hillis also accepted, that point was comprehensively resolved in a decision of this court in the case of Round and others [2009] EWCA Crim 2667, in which Lord Justice Hughes made it clear that it was not for the judge to seek to analyse from the sentence to be served back to the sentence to be passed. He relied upon the observations of Sir Igor Judge (as he then was) in Bright [2008] EWCA Crim 462, in which he said:

"The actual sentence was seven years' imprisonment. The release provisions did not and should not have affected the judge's sentencing decision."

The Vice President reiterated that decision in Round: see paragraphs 37 and 44.

13. Mr Hillis does seek to pursue an appeal against sentence on the different ground, namely that the learned judge passed what was a sentence at the very top of the bracket for an offence of rape, without making appropriate allowance for the mitigating features that were to be found in the appellant's mental condition and the lack of pre-planning in this offence.
14. The appellant has a bad record, albeit not for sexual offences, and the learned judge observed that there were a number of aggravating factors, which he described in these terms:

"You followed, possibly not deliberately, but outside the club she was accosted by some youths who made fun of her drunkenness, they jostled her and took her bag. You then intervened as if to rescue her. You led her away from the youths. She was grateful; she believed that you were coming to her aid. It is I think possible, even at that stage, that you were doing just that.

You led her away from the scene along Spittal Street but at some time walking along that road it is plain that you realised that she was drunk and vulnerable and unable to resist. You must somewhere along there have formed the intention to rape her. You slapped her, dragged her for a couple of hundred yards down to some wasteland away from the nearby houses, despite her protests. She was taken to this disused railway track, thrown to the ground. There she was threatened. I have no doubt that you threatened to kill her, which threats she plainly believed and there you raped her. You left her there.

She was found wandering nearby by a taxi driver..."

15. Recognising the appellant had not committed any other sexual offence and that he could not be said to be dangerous, the judge reiterated the shadow that events of that night had caused to the complainant. Unusually in a case of rape the judge knew only too well how, 20 years on, the events of that night had affected her. He took into account her mental condition, but concluded that the sentence of eight years remained appropriate.
16. We have no doubt that such a sentence was severe, but the learned judge was in by far and away the best position to determine how severe it was appropriate such a sentence should be, having seen both the complainant and the appellant. In the circumstances, although severe, this sentence is neither manifestly excessive nor wrong in principle. Although Mr Hillis argued the matter forcefully and with great effect, this appeal is dismissed.