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
		6 April 2011

LORD JUSTICE PITCHFORD:

1. On 7 May 2010, following a trial at Lewes Crown Court before His Honour Judge Warwick McKinnon and a jury, the two appellants, Ben-Rejab and Baccar, were convicted of the following offences. Ben-Rejab was found guilty on counts 1 and 2 of rape of the complainant to whom we shall refer as "C", contrary to section 1 of the Sexual Offences Act 2003. He was convicted upon count 3 of sexual assault of C by penetration, contrary to section 2 of the 2003 Act; and upon count 4 he was convicted of sexual assault of C, contrary to section 3 of the 2003 Act. He was sentenced to a total of ten years' imprisonment comprising ten years concurrent upon counts 1 and 2, six years concurrent upon count 3, and five years concurrent upon count 4. Baccar was convicted upon count 2 of rape of C, contrary to section 1 of the 2003 Act; and he was convicted upon count 3 of sexual assault of C by penetration, contrary to section 2 of the 2003 Act. He was sentenced to ten years' imprisonment upon count 2 and to six years' imprisonment upon count 3, concurrent. Both men appeal against their convictions by leave of the single judge.
2. Ben-Rejab sought from the trial judge, but was refused, leave to cross-examine the complainant about aspects of her behaviour since the making of her complaint. The judge refused leave under section 41 of the Youth Justice and Criminal Evidence Act 1999. Mr Scamardella, who was counsel at trial, argued that the judge was wrong to refuse leave. It is submitted that this had an effect upon the fairness of the trial, such that the safety of the verdicts is in doubt.
3. In the case of Baccar, in the course of their deliberations the jury asked a question. In consequence, the prosecution made an application to amend the indictment to cater for the possibility that the jury were considering convicting upon a basis which had not been argued during the trial. The indictment was amended and the judge gave the jury further directions.
4. At the trial Mr Hepburne Scott represented the appellant Baccar. Mr Fisher QC, who now appears with Mr Hepburne Scott, argues that the judge's decision undermined the fairness of Baccar's trial and that in consequence the verdicts of the jury are unsafe.
5. Before considering each of these grounds in turn, we shall summarise the evidence given at trial. The complainant C was aged 25 years. On 24 October 2008 she went out with a friend called B. They ended at a nightclub in Crawley. She accepted that at about midnight she had consumed a considerable quantity of alcohol but was in control of her actions. While at the club she met the appellant Ben-Rejab, who called himself "Ali". There was sexual attraction between them. He gave her his mobile telephone number. They were joined by the appellant Baccar, a friend of Ben-Rejab, who was a taxi driver. According to C, at first they spoke together in their own language. When she discovered that her friend B had left the club, C decided to go home. She was invited by Ben-Rejab to go with him for a drink. She agreed to do so.
6. Driven by Baccar they went to a flat whose key-holder was another man called Farjallah. While they waited for him, Ben-Rejab went to his own car to recover a pack of condoms. Inside the flat C said that she was given a glass of wine by Baccar. She did not like it and asked for water. Farjallah sat by a computer in the corner of the room, rolling a joint which he then shared with her and Ben-Rejab.
7. In examination in chief C said that the driver, Baccar, kept commenting on the size of her breasts and asked if he could touch them. She told him "No" and slapped him away. However, in cross-examination, having been invited to consider the statement that she had made to the police, she accepted that it was not Baccar who had attempted to touch her breasts, but the third male, Farjallah. This error by C in her evidence may have some influence upon the importance of evidence that she later gave about the participation of the three men.
8. Ahmed Farjallah was still at large at the date of trial, although he had been arrested and interviewed before being released on bail.
9. According to C, Ben-Rejab took her by the hand and led her to a bedroom. In that room there was consensual sexual activity. It was she who placed the condom on his penis. After sexual intercourse he moved up her torso so as to be astride her chest. At that moment she felt someone else fondling her legs. C was not prepared to consent to sexual intimacy with any person other than Ben-Rejab. She asked if there was someone else in the room. He denied it. Someone switched on a light. Ben-Rejab shouted, "Turn the light off". C told the jury that she tried to move up the bed to get away, but the person holding her legs pulled her back down onto the bed. She was by this time kicking, crying, and saying "No". She felt fingers being inserted into her vagina. Simultaneously (or almost simultaneously) Ben-Rejab penetrated her mouth with his penis while another person penetrated her anus. Throughout Ben-Rejab sat on her chest and she was unable to escape. In the course of her evidence, C conceded that it could have been the person who penetrated her anus who also penetrated her vagina.
10. After the digital penetration had occurred, C said that she heard movements which she described as "rummaging" on the other side of the room. A voice said, "There's no condoms left". She thought that the person who said those words was the man she described as the driver (the appellant Baccar).
11. Baccar and Farjallah left the room. Ben-Rejab knelt beside her and masturbated into his condom. She said that when he removed the condom from his penis he attempted to rub it into her face.
12. C dressed and went into the living room. She retrieved her handbag and she immediately started to send text messages to her friend Emma, asking for help and stating that she thought she had been raped. Those text messages were listed in a statement set out in a schedule for the jury.
13. The final act of sexual humiliation alleged was that Ben-Rejab grabbed C's hair and pulled her towards his exposed penis. She made an excuse that she had to use the bathroom and locked herself in. She sent a further series of text messages. Eventually she returned to the living room, telephoned for a taxi and was permitted to leave.
14. C was at first reluctant to disclose details of what had happened, but she woke her sister, who in turn woke her mother. They insisted that the police were called. Shortly afterwards a police officer arrived to take a detailed complaint which was subsequently repeated in its essential details in a full ABE interview.
15. In cross-examination on behalf of Mr Ben-Rejab, Mr Scamardella asked C about the contents of her victim impact statement. This statement had not been introduced by the prosecution. There was a purpose to be served by Mr Scamardella's questions, to which the judge had concurred on application. In that statement C had stated:

"What happened has completely changed the person I was. I really don't socialise any more, don't go to the pub like I used to; I very rarely go into town .... because of the fear of seeing them. I haven't been clubbing since this happened. I have flash-backs and panic attacks. I have undergone counselling and have been prescribed anti-depressants and sleeping tablets. It has destroyed the relationship I once had with my sister. ...."

16. The appellant Ben-Rejab supplied to counsel many Facebook pages which demonstrated that C was a regular user. On her Facebook pages she had made entries referring to her activities and had posted photographs. Those pages were shown to her. She maintained that she had been changed by her experience but she conceded that, contrary to the impression she had given in her victim impact statement, she had been to public houses on two or three occasions and she had been out clubbing once. She had also been to a pop concert. On another occasion she had gone to dog races, an outing which had been planned for a couple of months. She agreed that she habitually used the social networking site. She said that she had done so more recently because she felt unable to go out as much as she used to. She agreed that one of the entries was a photograph depicting her at a nightclub. When challenged, she said that she had forgotten that particular night.
17. Further cross-examined, C readily agreed that there may well have been sexual contact between her and Ben-Rejab before they had arrived at the flat. She denied, however, the suggestion that it was while Ben-Rejab was lying on his side, having completed an act of sexual intercourse with her, that a second male entered the room and had sexual intercourse with her. She denied that Baccar had come into the bedroom to offer her a drink of wine, and she did not invite him to engage in any sexual activity.
18. In cross-examination on behalf of Baccar, C denied that she had tried to mislead the police by the contents of her victim impact statement. She maintained that her life had indeed changed drastically. It was put to C on behalf of Baccar that she had been explicit in her invitation for sex with all three men. She denied it. She denied giving a condom to Baccar with the intention that he should "join in".
19. Her friend B gave evidence about the earlier part of the evening until the time that they became separated in the club. Her account in essence supported that of the complainant.
20. The jury heard evidence of recent complaint from the friend Emma, to whom C had sent text messages; from her younger sister; from her mother; and from PC Pither who had attended their home address. The evidence was that C was hysterical, blaming herself for what had happened and ashamed of the situation in which she found herself. She was convinced that her family, indeed everyone, would hate her.
21. Ben-Rejab was arrested at the flat within a few hours of the incident. Baccar surrendered himself to the police station the following day. According to Baccar's reply following arrest, he said that he was at the Bar Med with Ben-Rejab, had driven him back to the house, had opened a bottle of wine and had stayed only five minutes.
22. When interviewed under caution, Ben-Rejab gave an account which was in general consistent with his evidence at trial. However, there were three respects in which his evidence at trial differed significantly. He did not mention in interview that Farjallah had taken part in sexual activity with C. He did not mention that Baccar had entered the room with a glass of wine. He did not say that C had invited Baccar to join them, or that all three men had been handed condoms while they were in the living room with C. The account that Ben-Rejab gave in evidence brought his account of Baccar's activity much closer to Baccar's own account, namely that he entered the room where the sexual activity was taking place in order to present them with a glass of wine. Baccar's own account in interview was in general consistent with his evidence at trial. While he had been invited to join in the sexual activity, he declined. All he had done was to take wine into the room where Ben-Rejab and C were lying naked on the bed.
23. Found on a mobile telephone, we are informed belonging to Farjallah, were photographs depicting Ben-Rejab in sexual activity with C. Those photograph included one moving clip of film. They were the only two persons to be seen in the photographs. Four condom wrappers were discovered on the bedroom floor.

24. Ben-Rejab gave evidence at trial that he was a security officer at Heathrow Airport. At the end of the evening he intended to stay with Farjallah. He met C at the nightclub and she made it clear that she wanted sexual intercourse with him. She was forward and intimate with him in the car on the way to the flat. Outside the flat C tried to perform oral sex on him. Inside the flat C continued to show no inhibition, while Farjallah was at his computer and Baccar sat on an armchair. C and Ben-Rejab went to the bedroom where she performed oral sex on him. She placed a condom on his penis and they had sexual intercourse. He claimed that he took photographs with his mobile phone. The door opened and Farjallah came in. Farjallah approached and started to touch C. Ben-Rejab lay next to her. Farjallah had sexual intercourse with C. She did not object. She consented. Farjallah then left the room. Ben-Rejab's account continued that he and C were about to have sexual intercourse again when he called Baccar to bring them a drink. When Baccar entered the room, C hugged him. Baccar then left the room. Ben-Rejab and C again had sexual intercourse and he ejaculated. They both used the toilet. C dressed and they shared some cannabis with Farjallah. According to Ben-Rejab, Farjallah went to bed, and Ben-Rejab and C again had sexual intercourse. Eventually she called a taxi and left.

24. Baccar gave evidence that he was a licensed taxi driver. Although C was explicit that she wanted him to join in sexual activity with her, he declined. He said that he had not seen Farjallah go into the bedroom. All he had done was to take in a glass of wine.
25. Both men called good character evidence.
26. The indictment before the jury contained four counts. Count 1 charged Ben-Rejab with committing an offence of rape jointly with Ahmed Farjallah at the moment when Ben-Rejab penetrated C's mouth with his penis. Count 2 charged both Ben-Rejab and Baccar with committing jointly with Farjallah an offence of rape at the moment Farjallah penetrated C's anus with his penis. Count 3 charged both Ben-Rejab and Baccar with committing jointly with Farjallah an offence of assault by penetration at the moment Baccar inserted his fingers into C's vagina. Count 4 charged Ben-Rejab with sexual assault upon C by grabbing her hair and pulling her head towards his exposed penis.
27. We turn to the appeal of Ben-Rejab. C was, as we have noted, a Facebook user who regularly made entries on her own page and uploaded photographs to her page. On 23 February 2010 she made the victim impact statement to which we have referred, in which she described how she had become a changed person. Her entries on Facebook tended to demonstrate that her victim impact statement was untrue or an exaggeration. The judge gave leave for those matters to be put to C, and we have summarised the effect of the cross-examination. C accepted that she had exaggerated, but maintained that the underlying assertion that she was a changed person was true.
28. On 18 December 2008 there appeared in C's Facebook page the following entry:

"[C] is having sex! Click here to see more or try it yourself!"

On or about 9 February 2009 the following further entries appeared:

"[C] just took the Best Places to have Sex Around The House quiz. See your match score!"

"[C] took How good are you in bed? quiz and the result is Incredible Lover. Click here to compare your results or try other quizzes."

'[C] took Whats your sex style? quiz and the result is YOU ARE FIERCE. Click here to compare your results or try other quizzes."

On 12 January 2010 the following entries appeared:

"[C] Answered some questions on some weird questionnaire where you get fined for certain sexual encounters!!! Lol xxxx"

"[C] My fine is .... wait for it .... £660.60!!!! oops! Apparently I'v been a naughty girl!!!!"

29. Mr Scamardella sought leave to cross-examine C about these entries, but not in order to adduce evidence of the answers to the questions posed in the quizzes. It was suggested that the activity of entering such quizzes would cast doubt upon her assertion that, in October 2008, she had been subjected to the sexual ordeal she had described in evidence. She was posting such messages on a publicly available website page, an activity which Mr Scamardella intended to submit to the jury, was inconsistent with the evidence that she had given.
30. The judge refused leave. He did so because he took the view that questions concerning these Facebook entries would inevitably be about C's sexual behaviour on other occasions. For that reason section 41 of the Youth Justice and Criminal Evidence Act 1999 applied. The purpose of the questions was, the judge concluded, to undermine C's credibility as a witness. It followed that, even if subsection (3) applied, the purpose of the questions prohibited their admission. In the alternative, if subsection (3) or subsection (5) applied, it could not be said, as required by subsection (2), that a refusal of leave might have the result of rendering a conclusion of the jury on any relevant issue to be unsafe. The judge took the view that there was abundant other evidence by which the defence had been given leave to attack the credibility of C's evidence without referring to her sexual behaviour.
31. Mr Scamardella submits that the judge was wrong to conclude that his questions related to C's sexual behaviour. They related to behaviour which, the defence intended to submit, was inconsistent with her account of being a victim of rape.
32. Miss Healy, who appeared for the prosecution below and for the respondent in the appeal, submitted that the words "any sexual behaviour" in section 41 are extremely wide in their ambit. The statutory objective is to eliminate inadmissible reasoning, namely, as in the present case, that the victim of a sexual offence will behave in any particular way. Should the evidence have been admitted, the statutory objective would have been defeated.
33. Section 42(1)(c) provides as follows:

"(1) In section 41 --

...

(c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused ...."

34. It will be noted that "sexual behaviour or experience" need not involve any other person. The expression is plainly wide enough, in our view, to embrace an activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection. That being the case, the question for the court is whether an indulgence by answering questions in a sexually explicit quiz is "any sexual behaviour" within the meaning of the section. In our judgment it is. What motive can there have been when engaging in the activity of answering sexually explicit questions unless it was to obtain sexual pleasure from it? It was certainly the purpose for which the judge concluded the defence sought to ask these questions. We agree with him. The questions had no purpose, unless the jury was being invited to conclude that C was the sort of person who would engage in consensual foursome sexual activity and is not the sort of person who had recently been the victim of rape.
35. If we are wrong about this, then, as Mr Scamardella submitted, the questions were admissible provided that they were relevant to the witness's credibility. Miss Healy submitted that, since they all related to activity which took place two months or so after the incident of which complaint had been made, and thereafter, they could not have been relevant to the question whether the witness had been subjected to the ordeal which she had described. If they were strictly relevant in that sense, their weight must have been virtually nil.
36. Had this evidence been admitted, the jury would in all probability have received advice from the judge against using such evidence in the enforcement of a stereotype of victims of sexual offences. We agree that these questions were of minimal value to the jury's task.
37. C was cross-examined at some length upon the fact that, contrary to the assertions made in her victim impact statement, she had maintained her colourful social life which had been resumed not long after her complaint to the police. We agree with the judge that there was an abundance of evidence before the jury upon which they could assess her credibility in general. We do not consider that the absence of these questions had any material impact upon the jury's task. In the event, they had little difficulty in accepting the truth of C's complaint and in rejecting the evidence of the appellant. We accept Miss Healy's submission that it was no doubt the existence of virtually contemporaneous complaints which was the cogent factor in the jury's deliberations.
38. We do not doubt the safety of the jury's verdict in the case of Ben-Rejab. The appeal against conviction in his case is dismissed.
39. We turn to the appeal of Nizar Baccar. The jury retired to consider their verdicts at 2.10pm on 6 May 2010. At the end of that day they were discharged for the night and returned the following morning, 7 May, at 10.05am. At about 12.50pm on 7 May they sent a note to the judge which read as follows:

"A question on count 3 (assault by penetration count). If we are not sure that Nizar Baccar intentionally penetrated with a part of his body, ie his finger, but we believe that digital penetration took place and all three accused were in the room, where does that leave us legally giving a verdict?"

The jury was inviting the judge to assume that digital penetration by someone had taken place and that at the time all three accused were present in the room. The question was therefore directed to the issue whether there was a basis in law upon which Baccar could be convicted of that offence while not being the person who was alleged in the indictment to be the offender who penetrated the victim.

40. The judge discussed this note with counsel between 12.50pm and 1pm and after lunch at 2pm on 7 May. The prosecution applied to amend count 3 of the indictment to alter the words "sexually penetrated with a part of Nizar Baccar's body, namely his finger" to "sexually penetrated with a part of one of their bodies, namely a finger". The judge permitted time to reflect on the jury's note. His first instinct was that it was very late to be amending the indictment in an apparently fundamental way. It seemed to him that the jury wanted to know whether they could convict Baccar on the basis of joint enterprise, even if they were unsure whether it was he personally who penetrated C's vagina with his finger.
41. After a short adjournment Miss Healy renewed her application. She submitted that the identity of the principal offender was not a material averment. Mr Hepburne Scott resisted the application. He submitted that the prosecution was seeking to re-cast its case in a manner with which the defence had been unable to deal. Once the overt act was abandoned, there was no basis upon which Baccar could be convicted as a secondary party. Presence alone was not enough. There was no other overt act to which the prosecution had pointed which could support an inference either of participation or of encouragement. Exactly the same consideration, he said, applied to count 2. The only act of Baccar's from which the jury could infer complicity with Farjallah's act of rape per anum was Baccar's almost contemporaneous act of inserting his finger into C's vagina.
42. The judge rejected these submissions. He concluded that it was open to the jury to convict if they were sure that Baccar was present, willing to assist if necessary, and by that means encouraged and intended to encourage the co-accused and Farjallah.
43. Mr Hepburne Scott pointed out that if the prosecution had been conducting its case on this factual basis, he would have adopted an alternative or an additional approach in cross-examination of the complainant. He would have wanted to know whether there was any other action of Baccar which might have indicated his participation in the activity of the other two. The judge responded that he did not see what else Mr Hepburne Scott could have asked C, nor indeed what else he could have submitted to the jury. The judge engaged Mr Hepburne Scott in a discussion of the evidence, exploring the route by which the jury might or might not reach a conclusion of guilt by participation in a joint enterprise. Mr Hepburne Scott's essential submission is captured in the following words:

".... I would simply say that the Crown have put their case on a very specific factual basis in relation to that count. Had they put it differently or had they changed the indictment or amended the indictment in a more timely fashion, I would have had the opportunity to address the jury on it and your Lordship would have incorporated that into your Lordship's summing-up. Your Lordship has not summed the case up to the jury on this basis. I have been deprived of the opportunity to address the jury on this basis which is a wider basis to capture the criminality which is now effectively alleged against Mr Baccar."

44. The way in which the judge had approached counts 2 and 3 in the indictment in his directions to the jury appears at page 10 of the transcript of the summing-up. Having given the jury a conventional direction upon the meaning of "joint enterprise", that is a joint plan or agreement, he proceeded in relation to counts 2 and 3 as follows:

"In counts 2 and 3 Ben-Rejab and Nizar Baccar, together with Ahmed Farjallah, are charged with anal rape and assault by penetration where it is alleged that it was Farjallah's penis that penetrated [C's] anus and Baccar's fingers that entered her vagina. The Crown put the case against Ben-Rejab and Nizar Baccar on the basis of joint enterprise, the three of them all acting together, all in it together. Ben-Rejab straddled over her shoulders preventing her from resisting, Farjallah doing the actual anal penetration and Baccar ready there at hand to assist if necessary, encouraging what was going on and then directly taking part himself in digitally penetrating [C], [C] not consenting to any of it and all three of them not reasonably believing that she was consenting. Of course mere presence at the scene of a crime committed by someone else is no basis for guilt and so if you were of the view that it might be the case, for example, that Baccar only entered the room after [C] had been violated against her will by the other two and all that he did was to bring in a glass of wine, declined her invitation for sex and bid her goodnight with a friendly kiss and a hug, as he has contended in evidence, then clearly he is not jointly responsible for any of the offence and you would, and indeed must, find him not guilty."

45. At the stage at which the jury had passed its note to the judge, no verdicts had been returned. It would have been wrong, as the judge acknowledged, to permit the prosecution to re-cast its case. At page 66 of the transcript the judge asked a question pertinent to the jury's consideration of count 2:

"Let me ask you this question: on count 2, anal rape, you say before the jury can convict your client of anal rape they have to be satisfied of digital penetration of the vagina?"

To this question Mr Hepburne Scott replied:

"My Lord, no."

The judge responded that in that case his argument was academic. We observe that, theoretically, it may have been. The reason is that Mr Hepburne Scott was making a concession that there was other material in the evidence from which the jury could have decided that Baccar was complicit in the count 2 rape, without having to be satisfied of digital penetration of the vagina by him. If that was right, then logically Mr Hepburne Scott's argument upon count 3 had no mileage because it must follow that there was other evidence upon which the jury could conclude that Baccar was complicit in count 3 for reasons other than his own digital penetration of C's vagina. On reflection, Mr Hepburne Scott wishes he had answered the judge's question "Yes".

46. At page 69G the judge remarked that he did not consider the case had changed at all. It had always been open to the jury to convict on the evidence that they had heard, provided that they correctly understood the law. Accordingly, Mr Hepburne Scott sought leave to address the jury further. The judge refused his application.
47. The jury was recalled to court at 2.55pm. The judge repeated his earlier direction on joint enterprise as to counts 2 and 3. He then gave the following further direction:

"So you will see immediately that it is not necessary for you to be sure who committed the particular act complained of, whether it was the anal penetration or the digital penetration, depending on which count you are considering, but what does have to be proved to the high standard which has been emphasised to you is that the act complained of was committed by someone and that the defendant whose case you are considering was participating in the offence, that is to say, that he was part of a plan or agreement to commit the offence and I have explained to you what that phrase means. So when you come to look at count 3, the count concerning the digital penetration, it does not actually matter who it was who did the actual digital penetration so long as you are sure that digital penetration took place and that the defendant whose case you are considering was part of a plan or agreement to commit the offence. As I have said, an agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all. It can all be made with a nod and a wink or a knowing look and an agreement can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim.

What the Crown say in relation to Baccar on counts 2 and 3 is that there was a plan or agreement to commit the offence to which he was a party. The Crown say that the three of them were acting together .... Ben-Rejab straddled over her shoulders preventing her from resisting. Farjallah doing the actual anal penetration and Baccar there at hand ready to assist if necessary and encouraging what was going on and then as far as count 3 is concerned, directly taking part himself in digitally penetrating [C], [C] consenting to none of it and all three of them not reasonably believing that she was consenting. But even if you were not sure that it was his finger or fingers that penetrated her vagina you could still convict him if you were sure that he did participate in the offence if, but only if, you are sure that he was present and was wilfully encouraging what was going on and ready to assist with the requisite intention, [C] consenting to none of it and he not reasonably believing that she was consenting.

However, a person who is merely present at the scene of a crime being committed by another and who does nothing to stop it cannot, without more, amount to participation in the joint enterprise. So simply being present in the room without more would not be enough, which is what you actually asked in your note. So on count 3, and for that matter count 2, even if you were sure that he was present in the room at the same time as the other two but were not sure that it was he who digitally penetrated [C] and you were not sure that he was part of a joint plan or agreement to commit the offence, taking no actual part in it, then you must acquit.

...."

48. This was, it seems to us, an impeccable direction on the law as it applied to the changed circumstances presented to the judge by the jury's note. The jury were undoubtedly assisted. They retired at 3.07pm and returned with unanimous verdicts at 3.30pm.
49. The question for this court is whether the verdicts in respect of the appellant Baccar are safe, having regard to the judge's decision to permit the jury to consider the evidence upon a basis that Baccar did not himself engage in any sexual act.
50. Mr Fisher submitted that the verdicts are not safe since, in effect, Mr Baccar was deprived of a fair trial. In particular, Mr Hepburne Scott would have conducted the case somewhat differently at least, namely by exploring whether, absent a finding that it was Baccar who inserted his finger into the complainant's vagina, there was anything said or done by Baccar that was capable of being considered by the jury as either amounting to physical participation or as amounting to encouragement in respect of count 2 or count 3 or both. There had been no such focus by Mr Hepburne Scott as to that possibility because throughout, in the submission of Mr Fisher, the prosecution case had been conducted upon the basis that the dominant act of participation, which affected the judgment of C's evidence concerning joint enterprise, was the digital penetration of her vagina by the taxi driver.
51. Secondly, during his final speech to the jury Mr Hepburne Scott did not address the jury upon the alternative basis, namely that digital penetration by Baccar was removed from the pool of evidence upon which the jury could rely. In effect, therefore, it is submitted, the jury were being invited to consider a case upon which neither the prosecution nor the defence had specifically addressed the jury.
52. It is recognised by Mr Fisher in his written submissions that in an appropriate case an amendment of the indictment may be appropriate. However, the later that such an amendment is made, the less likely it is to be fair in its effect upon the defendant. Where there is evidence of specific prejudice, the application to amend is likely to be refused.
53. Miss Healy submitted that no injustice was done. It was perfectly plain to all that the judge summed up on the basis that Baccar could be convicted either in consequence of encouragement or in consequence of physical participation by way of insertion of his finger into C's vagina. It followed that from the moment the trial started, particularly having regard to the averment in count 2, Mr Hepburne Scott would have known that he must challenge any evidence necessary in order to avoid a conviction upon that count. Even if the jury was not sure that Baccar had inserted his finger into C's vagina, Miss Healy submits that there was plenty of evidence from which the jury could infer either encouragement or physical participation. She has listed these pieces of evidence at paragraph 73 of her skeleton argument as follows: (a) Baccar entered the bedroom in which Ben-Rejab and C were having sex with Farjallah; (b) at or about the time of entering the light was switched on; (c) either he or Farjallah took a photograph of Ben-Rejab and [C] having sexual intercourse; (d) both Farjallah and Baccar had their hands on [C] whilst Ben-Rejab was straddling her chest or face, one holding her feet, the other touching the top of her thighs; (e) Baccar moved away from the bed to rummage at the side of the room and asked whether there were any more condoms.
54. There was undoubtedly evidence upon which the jury, properly directed, might have been able to find either physical participation by Baccar or encouragement in the sense that the judge directed the jury. It is with that observation in mind that we have examined with some care the evidence of C as the judge reminded the jury of it, in particular passages at pages 14E-15B, 15E-G, 25B-E, and 25H-26A. It seems to us that there was no unequivocal evidence from the complainant that the third man (Baccar) committed any overt act of participation in the sexual assault other than digital penetration. They might, depending upon the view which they took of the reliability of C's evidence, have been able to find that he participated by touching the top of her thighs.
55. As to that evidence, C had accepted that she could be mistaken about various matters. It might have been the man she referred to as the third man (Farjallah) who both raped her anally and digitally penetrated her. In the course of her evidence she had been mistaken about the identity of the man who had attempted to fondle her breasts while in the living room. In these circumstances it is not surprising, in our view, that the jury were troubled, particularly as to count 3.
56. In our judgment, in the absence of digital penetration by Baccar, there was some, but very little, evidence of his participation and no overt act of encouragement. If he was the man who made the remark about the absence of condoms, that was indeed some evidence that he intended to participate, but it was not unequivocal evidence that he was already participating. These were all matters on which, it seems to us, the jury required assistance, particularly in the changed circumstances provided by their note. They had not been addressed by counsel, and they were not addressed by the judge. There was, it seems to us, a real risk of unfairness to the appellant Baccar. No one had anticipated that the jury might in due course have to consider what evidence there was, other than participation by digital penetration, of Baccar's participation or encouragement of the others. Therein lies the distinct impression that Mr Hepburne Scott was indeed deprived of a proper opportunity to address the evidence as it now appeared once that severance of evidence had taken place. We have the greatest sympathy with the judge's position. We entirely accept that in theory he was right. The prosecution was being put in law in precisely the same way at the end of the case as it was being put at the start of the case.
57. We have the advantage of considering all these matters outside the heat of the trial, and it is upon that assessment that we have to decide whether or not the verdicts in Baccar's case are safe.
58. We consider that the jury may have convicted upon a factual basis which, for one reason or another, had never been fully confronted by counsel or the judge. For this reason we regard the convictions of Baccar on counts 2 and 3 as unsafe. Accordingly, his appeal is allowed.
59. Miss Healy, do you seek a retrial?

MISS HEALY: My Lord, the prosecution would seek a retrial in this case. They are very serious allegations.

LORD JUSTICE PITCHFORD: You do not need to persuade us of that. Has the complainant been consulted about this possibility?

MISS HEALY: I do not know because I have been unable to make contact with the officer in the case who is on holiday at the moment.

LORD JUSTICE PITCHFORD: Has Farjallah been found or not?

MISS HEALY: Not as far as I am aware.

LORD JUSTICE PITCHFORD: We have not yet made a decision about that but if we do and an application is made for bail, what is your response?

MISS HEALY: I was just discussing that with Mr Fisher. It is not really a position for the respondent to take, it seems to me. One always has to have regard to the potential difficulties involved if a defendant is halfway through serving a custodial sentence and is released on bail and is subsequently convicted. He was on bail throughout the proceedings before his conviction.

LORD JUSTICE PITCHFORD: With conditions, or unconditional?

MISS HEALY: I have no recollection as to what the bail conditions were.

MR FISHER: My Lord, members of his family are in court. They are sitting behind me. I think Mr Hepburne Scott may be able to assist your Lordship as to what the conditions of bail were. It is something I was going to raise with your Lordships.

MISS HEALY: My Lord, I have been able to find the conditions. This was the case still at trial. There was a condition of residence at his home address. His passport was retained by the police and there was a condition not to apply for international travel documents and there was a reporting condition to Crawley Police Stations on Saturday between 10 and 12, and a condition not to contact the prosecution witnesses.

LORD JUSTICE PITCHFORD: Thank you.

MISS HEALY: Those are the conditions.

LORD JUSTICE PITCHFORD: Mr Fisher, first things first. Do you have anything to say about the application for a retrial?

MR FISHER: My Lord, no, save that I know that the Crown will give careful consideration to that and will speak, I am sure, to the complainant and will take into account the evidence that was finally left to jury on the involvement of this particular defendant.

LORD JUSTICE PITCHFORD: It seems to me that there are considerations which will need to be borne in mind by the court which considers an application for bail, one of which is the time within which a retrial can be accommodated at the Crown Court where it will be tried. My usual course is to direct that if there is to be an application for bail, it ought to be made to the resident judge of the Crown Court or to the High Court sitting in the Crown Court centre where the trial will take place. I do not think that we have the material today which we would need to make that decision.

MR FISHER: My Lord, save this: he was on bail prior to his conviction. He was on bail, therefore, during the course of the trial and, as far as I am aware, he complied with all those conditions. He is a man with a family and the fact that a number of them have attended here today may show that they are a responsible family. Perhaps your Lordship could in the circumstances grant bail on the same conditions as before? They have brought his passport to court in anticipation that the appeal was successful and a bail application may be granted.

LORD JUSTICE PITCHFORD: We will retire to consider what you have to say.

(Mr Scamardella applied for an extension of time in which to

renew an application for leave to appeal against sentence

of behalf of the appellant Ben-Rejab)

(The court retired to confer)

LORD JUSTICE PITCHFORD: We allow the appeal of the appellant Baccar. We quash his convictions on counts 2 and 3. We order a retrial of counts 2 and 3. We shall direct that a fresh indictment is preferred and that the appellant be re-arraigned on the fresh indictment within a period of two months.

Mr Fisher, we will not make a decision upon bail today.

MR FISHER: So be it.

LORD JUSTICE PITCHFORD: We invite you to make a fully-reasoned application for bail in the Crown Court at the court centre at which one of the presiding judges directs this trial shall take place, in order to permit Miss Healy to be fully instructed before the application is made.

MR FISHER: Yes.

LORD JUSTICE PITCHFORD: Thank you, however, for your help. Was there anything else?

MR FISHER: My Lord, there is only the issue of costs. It may be that your Lordship could consider it appropriate to direct that the costs be taxed and paid from central funds?

LORD JUSTICE PITCHFORD: I am sorry to embarrass you, but what is the position at the moment?

MR FISHER: My Lord, I am privately instructed.

LORD JUSTICE PITCHFORD: And Mr Hepburne Scott?

MR FISHER: The same.

LORD JUSTICE PITCHFORD: You are both privately instructed?

MR HEPBURNE SCOTT: My Lord, yes. Our understanding was that one could not have part privately funded and part legally aided.

MR FISHER: My Lord, I say "taxed" because -- although I am not expert obviously on this -- it is unlikely that central funds would pay for representation by Queen's Counsel and a junior on the basis of private fees.

LORD JUSTICE PITCHFORD: Well, that is our difficulty. Would it assist if we made an order for a payment out of central funds in respect of representation by a junior, or would that simply be a circumvention of the existing rules?

MR FISHER: My Lord, forgive me, I am looking at your Lordship's associate because he probably knows the answer to that question much better than I do. I do not want to misinform your Lordship. I discussed it with him prior to the appeal starting.

LORD JUSTICE PITCHFORD: Mr Fisher, I think the best thing to do is to invite you to make any application you wish to make in writing and we will consider it. In making that application, you will need to refer us to the necessary statutory or regulatory authority.

MR FISHER: Yes.

LORD JUSTICE PITCHFORD: I do not know what course the defendant will take if a retrial takes place, Mr Fisher, but normally the court would make a representation order for counsel for the retrial.

MR FISHER: Yes.

LORD JUSTICE PITCHFORD: You may not want us to because if we do, it will be only for junior counsel.

MR FISHER: Yes.

LORD JUSTICE PITCHFORD: In which case you will suffer the same dilemma.

MR FISHER: Indeed. Would your Lordship allow me a moment?

LORD JUSTICE PITCHFORD: Yes, certainly.

MR FISHER: (Pause) My Lord, it may be best in the circumstances for nothing to be said so that an informed decision can be made by my lay and professional clients.

LORD JUSTICE PITCHFORD: Mr Justice King suggests that you might be better off with a representation order for junior counsel because if you receive it, you can always chuck it back.

MR FISHER: That sounds very sensible. I am grateful.

LORD JUSTICE PITCHFORD: The appellant will have a representation order in respect of representation by one counsel and solicitors for the retrial.

There is a problem with publication of the judgment, Mr Fisher. We ought to place an embargo on it, ought we not?

MR FISHER: Yes.

LORD JUSTICE PITCHFORD: For a period of fourteen days, Miss Healy, or the completion of the retrial -- whichever is the later -- the purpose being to enable the prosecution to make a final decision after they have consulted the complainant. Then, on the assumption that there is a retrial, the embargo can be lifted at the end of it. If, on the other hand, a decision is made not to proceed, the embargo can be lifted at the time when that decision is made.

MR FISHER: Yes.

LORD JUSTICE PITCHFORD: Do you both understand that?

MISS HEALY: Yes.

LORD JUSTICE PITCHFORD: Miss Healy, if you do make a decision on your side not to proceed, will you let the court know straightaway, please?

MISS HEALY: Yes. This court?

LORD JUSTICE PITCHFORD: Yes, please, for the reason that the embargo can be lifted. Is there nothing else, Mr Fisher? We will proceed to give judgement in respect of Mr Scamardella's renewed application.

60. For reasons which are set out in the judgment delivered by the court a short time ago, the appeal against conviction by Anouar Ben-Rejab has been dismissed.
61. He applied for leave to appeal against his sentence of ten years' imprisonment to the single judge who refused leave in the following terms:

"This was a very bad gang rape. It was not just that the three of you were involved. What made it particularly serious was that three of you were involved at the same time, each of you doing different things to her. The fact it all started with her having consensual sex with you would have been powerful mitigation if it was just you who had continued to force yourself on her, but it was far less mitigation when all three of you got involved. This was a tough sentence close to the top of the range, but the circumstances justified it."

62. Mr Scamardella accepts that a significant aggravating feature was the fact that more than one individual was involved. Nevertheless, he submits that since there was a sexual attraction by the complainant towards Ben-Rejab, there is mitigation which should have enabled the judge not to impose a sentence at or near the top of the appropriate range.
63. In our judgment there is a misconception in this submission. The misconception lies in the assertion that it is in any way mitigation for a man who knows the sexual attraction of a woman towards him thereafter to invite his mates to join in, whether she consents or not.
64. There is no merit in the application for leave to extend time within which to renew this application and it is refused.

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