England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Tuesday 19 January 2010 at Wood Green Crown Court
before His Honour Judge Carr

		20/05/2011

Lord Justice Pitchford :

1. The appellant, MM, was born on 7 August 1990 and is now aged 20 years. With the leave of the full court he appeals his convictions for three offences of rape contrary to section 1(1) Sexual Offences Act 2003 and one offence of sexual assault by penetration contrary to section 2 of the 2003 Act. The victim is entitled to her anonymity under the Sexual Offences (Amendment) Act 1992. It is an offence to publish her name or address or any matter which might lead to her identification. We shall describe her by the initial A. The title to this judgment will be MM.
2. The first trial commenced on Tuesday 19 January 2010 at Wood Green Crown Court before His Honour Judge Carr. On 21 January the judge discharged the jury and ordered a re-trial. The re-trial commenced on 22 February and the verdicts were returned on 25 February 2010. The appellant was sentenced by the trial judge to 6 years detention in a young offender institution on 27 May 2010. The full court (Laws LJ, Simon and Lindblom JJ) gave leave on 1 February 2011.

Grounds of Appeal

3. The grounds raised by the appellant fall into 4 categories:

(1) It is contended on the appellant's behalf that the trial judge wrongly discharged the jury against the wishes of the defendant. His decision constituted an abuse of the process of the court which should have resulted in a stay of the proceedings. The learned judge thereafter failed to recuse himself from presiding over the retrial.

(2) The appellant argues that the judge's conduct of the second trial was biased against the defendant and the summing up was unbalanced in favour of the prosecution.

(3) It is argued that the judge wrongly failed to permit cross-examination upon previous sexual behaviour under section 41 Youth Justice and Criminal Evidence Act 1999.

(4) It is said that the judge was wrong to indicate his intention to direct the jury, if necessary, that the defendant's psychiatric condition was not relevant to the jury's examination whether his belief in the complainant's consent to sexual intercourse was reasonable.

Before we embark upon a consideration of the grounds we shall summarise the evidence given at trial.

Evidence at Trial

4. In June 2009 A was aged 17 and the appellant aged 19 years. They met at a college in North East London which they were both attending in about January 2009. They were attracted to one another and a sexual relationship commenced. A lived with her parents, sister and brother. She spoke English, Farsi and Kurdish. The appellant was a native of Sudan who spoke Arabic and English. Accordingly, they communicated in English. About 2 weeks before 8 June 2009 A said that she noticed a difference in the appellant. He had become extremely demonstrative of his love for her and said that he wanted to marry her. He wished to meet A's mother and, in effect, be treated as a member of A's family. A, who had not told her mother about the sexual relationship between them, was reluctant. She told the jury that as a result she finished the relationship within the three days before 8 June.
5. On the morning of 8 June at about 6.30 the appellant arrived at A's home with a male friend R. A was in her bedroom with her sister and a girlfriend who had slept on the floor overnight. A's mother was in her own bedroom. A's brother answered the door and let the appellant and R inside. They went immediately upstairs to A's bedroom. On two separate occasions they were persuaded to leave. On the second occasion A forgot to lock the door behind the appellant. He returned alone minutes later and again went to A's bedroom where he removed his clothing and climbed naked into her bed. By this time, A had made a 999 call asking the police to remove him. A said that she was embarrassed by the scene the appellant was creating and went into the bedroom to speak to him alone. She sat on the bed and tried to persuade the appellant to leave, saying to him that she would see him later at college. She gave evidence that he proceeded to grab her, kiss her violently, remove her clothing and rape her vaginally, anally and orally. He also, she said, inserted his fingers into her vagina. A said that she resisted the appellant, saying "No" and crying, but he proceeded nonetheless. When she was able to leave the bedroom she was met by her girlfriend. She was told that the police had rung back. A took the telephone and complained that the appellant had "tried" to rape her. The appellant covered himself with A's pink dressing gown and went downstairs and helped himself to some cold food from the fridge. A, her mother, sister and friend stayed in one bedroom while the appellant was insisting that he wanted to speak to A. Eventually he returned to A's bedroom where he was found shortly afterwards by the police and arrested.
6. A was medically examined. She had suffered a tender red bruise on the inner surface of her lower lip and a further bruise below her lower lip. There were no injuries to the vaginal area but anally there were two thin linear lacerations found on the anal margin of the peri-anal area. Internally there was red bruising of the lower anal mucus. When swabs were taken contact bleeding was found.
7. At trial A's younger sister gave evidence that when A emerged from her bedroom she was shaking and crying.
8. The defendant admitted in evidence each act of sexual activity alleged. His case was that the sexual activity between himself and the complainant was entirely consensual, indeed enthusiastic, on A's part.

Medical Experts

9. Before trial the defence obtained reports from two psychiatric medical experts, Dr John McAnallen, a Consultant Psychiatrist at the John Howard Centre in Hackney (27 November 2009) and Dr Tom Werner, Consultant Psychiatrist at Ladywell Mental Unit, Lewisham University Hospital (12 October 2009). Dr McAnallen reported that the appellant was a heavy skunk cannabis user. In his opinion, the appellant had, in the days before his arrest, been suffering symptoms of a manic episode possibly resulting from bi-polar affective disorder. In Dr McAnallen's view the appellant's behaviour was consistent with "a grossly disturbed state of mind". The appellant had described to him "reduced sleep, racing and changing thoughts, ... a sense of increased confidence, wellbeing and abilities, as well as increased energy". He had been uncharacteristically pre-occupied by thoughts of his religion. He was aggressive and agitated on arrest and required restraint. The appellant told Dr McAnallen that the complainant was lying and that he would challenge the evidence. Dr McAnallen concluded that the appellant was fit to stand trial. He did not require urgent treatment in hospital. The appellant had been a vulnerable suspect not fit to be interviewed. At paragraph 5 of his summary and opinion Dr McAnallen said:

"5. In respect of his mental state at the time of the alleged offences and the possibility of an insanity defence and his capacity to have formed intent, I believe that he understood the nature of his actions at the time of the alleged offences and this is not it seems in dispute. He appears to have had a disturbance of his ability to judge the appropriateness of his actions and to respond appropriately to his circumstances as he was dis-inhibited and impulsive at the time of the alleged offences and this should be considered by the court in terms of whether he had the capacity to form the requisite intent for the alleged offences. He states he believed the complainant was consenting and is disputing the evidence. I believe his ability to have fully recognised and considered the wishes of others at the time was probably impaired but that he would have had the capacity to know his actions were wrong at the time of the alleged offences."

In the event of conviction the doctor thought the appellant should be considered for an interim hospital order under section 38 Mental Health Act 1983 for fuller assessment. It remained to be seen whether the appellant was suffering from an underlying mental illness. He needed close monitoring.

10. It was Dr Werner's view that the appellant was suffering bi-polar affective disorder as a result of which he experienced a manic episode, the systems of which included delusional beliefs or psychosis. He agreed that the appellant had not been fit for interview. His recommendation was also that an interim hospital order be imposed in the event of conviction. At paragraphs 90 – 92 of his report Dr Werner wrote:

"90. At the time of the offence, Mr [M] still believed that Miss [A] was his girlfriend. It seems that the information given by her to end the relationship the day before the offence was not comprehended by him due to the disturbance of his mental state. Despite not being of major relevance Mr [M] still believes that it was meant as a temporary separation. In Miss [A]'s interview she frequently referred to Mr [M] as her boyfriend.

91. It also seems that he misinterpreted some ambiguous messages from Miss [A]'s family referring [to] him as her boyfriend, the open door upon his third return and Miss [A]'s attempts to persuade him to get dressed and leave the place by going alone into the bedroom where Mr [M] was lying naked underneath the covers, as confirmation that Miss [A] intended to have sex with him.

92. Because of his altered mental state and his lost sense of reality, he was not able to perceive the signals given by Miss [A] that she did not consent to sexual intercourse. In his mental state it seems that she did not want to have sex with him because of her family being present. Then he could not comprehend that this in itself in addition to the proposed break of their relationship was a valid reason for her refusal."

Dr Werner also concluded that the appellant was fit to stand his trial.

First Trial

11. A preliminary discussion took place between counsel and the judge on the first day of the first trial. Among other issues, Mr Beharrylal on behalf of the appellant raised the admission of the interview under caution, the medical evidence and section 41 Youth Justice and Criminal Evidence Act 1999. Having seen the medical evidence Mr Wade (now QC), for the prosecution agreed that the interview under caution would not be adduced. Mr Beharrylal informed the judge that he proposed to rely on the evidence of at least one of the psychiatric experts which he submitted was relevant to the issue of the appellant's state of mind at the time of the alleged offences. Before the complainant gave evidence Mr Beharrylal made an application for leave to ask questions about the complainant's previous sexual behaviour with the appellant which the judge refused.
12. Before commencement of cross-examination of the complainant the judge was discussing with counsel the terms of a suitable formal admission as to the previous sexual behaviour between A and the appellant and, having done so, he alerted Mr Beharrylal to his preliminary view about the meaning of "reasonable belief" in section 1(1)(c) Sexual Offences Act 2003. At page 4 of the transcript of proceedings, volume II the judge said:

"I would obviously say to the jury ..., first question, if the prosecution had made you sure he did not believe she was consenting that is the end of it, he is guilty. But if it is the situation where he did/may have believed she was consenting, that is not the end. That belief has to be a reasonable belief. When they consider the reasonable belief, they look at all the circumstances of the case, but that it is them who judge reasonable by their standards as sober, responsible, balanced members of society."

The judge was indicating that to the extent that the jury was examining the question whether his belief in A's consent was reasonable they would not be taking into account medical evidence to the effect that his belief may have been deluded.

13. Section 1(2) Sexual Offences Act 2003 provides:

"(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the accused] has taken to ascertain whether B consents."

The judge did not call for argument at that stage but he informed Mr Beharrylal that he did not, for the time being, consider the psychiatric evidence would provide the appellant with a defence to the objective limb of belief in consent. A mental illness which would remove even the reasonable person's perception of consent was not, the judge considered, a circumstance contemplated by section 1(2) of the Act. It would not, therefore, be a characteristic of the appellant's to which the jury would be entitled to have regard when considering whether the appellant's belief in consent was reasonable.

14. At the conclusion of the evidence on 21 January 2010 Mr Beharrylal again raised the issue of the medical evidence in the context of a possible verdict of not guilty by reason of insanity. As the evidence stood there appeared to be no grounds for a defence but it did not appear from the report that the issue of insanity had been explicitly addressed. Dr Werner was at court and the judge suggested that he be asked to address the relevant M'Naghten questions. Mr Beharrylal asked the judge to grant a short adjournment while he considered the medical evidence and time was granted. On the resumption Mr Beharrylal informed the judge that he was not proposing to rely upon any psychiatric expert evidence. This was a matter of some concern to the judge because some time had been spent in cross-examination of the appellant highlighting the bizarre nature of his conduct. Both counsel and the judge had anticipated that medical evidence would be adduced. If the trial proceeded with no such evidence the jury would be judging the appellant's behaviour as though he was a man in good mental health when in fact, on the evidence available, he was not. Mr Beharrylal pointed out that the judge had expressed his view that such evidence would not avail the appellant upon the objective limb of reasonable belief. If there was no psychiatric evidence adduced the arguments he addressed to the jury would be confined to the evidence which the jury had heard. The judge's concern was that the prosecution had approached the trial and, in particular cross-examination of the appellant, on the understanding that expert evidence would be called on his behalf. Without such evidence there was a risk that the jury would speculate as to the existence of a mental illness. If they did, their verdict might be based upon a mistaken apprehension of the true position.
15. After further discussion Mr Beharrylal informed the judge that he had now discussed the M'Naghten questions with Dr Werner whose view was that the appellant was not guilty by reason of insanity. The judge's concern deepened further. It now appeared to be the position that Mr Beharrylal was being instructed not to advance a defence which may be a complete answer to the indictment, in which case he would run the risk of conviction for serious criminal offences. The judge proceeded to give a ruling that he would discharge the jury to enable the defence to take stock of the best interests of the appellant. In the transcript of proceedings, volume III, at page 36F the judge said:

"I have firmly formed the view, having heard the evidence in this case, that the unfortunate position we have arrived in today means that it is quite improper to leave this to a jury any further. To do so, as I say, would be to potentially deny Mr [M] a defence available to him, albeit one that he on his instructions today doesn't wish to run, but one can't ignore the fact that that may well be because of his illness and, on the other hand, a jury put in an absolutely impossible position, deciding a case on the evidence when they are not told the single most important information, namely that all professionals that have seen Mr M are of the view that he suffers from bi-polar disorder and was in a manic phase at the time he committed, or may have committed these offences. That is not a proper trial for these courts to conduct and I cannot, despite quite proper positions ... of counsel, simply sit by and allow that to happen. The only right and proper decision in my view is for this jury to be discharged. And that is what I will do."

16. The judge's reasoning is further revealed by his following remarks at page 37C:

"The first stage is of course going to be for the defence to decide, given the fact that they now understand what Dr Werner was saying, whether they wish to pursue his second report and get a supplemental report by him in conventional terms to advance the defence of not guilty by reason of insanity. It is of course for the defence to decide that. It is not for the prosecution. And if they take the decision they are not going to advance that case, that is a matter for them. I am not going to have it done on the hop on the morning of a hearing when they are having information for the first time. If they do, they will serve appropriate psychiatric evidence and the Crown, if appropriate, will respond. However, even if they don't, it will need to be abundantly clear as to whether they propose to call any evidence as to Mr [M]'s psychiatric presentation on that day, and the Crown need to have the opportunity to sit back and calmly decide whether they wish, if there is to be no such evidence from the defence, to consider evidence of their own. That, of course, will be entirely a matter for everyone concerned. But whatever position we arrive in, that having been done, the trial will be conducted in a more sensible and workable manner. Either everybody will know from the beginning that there are no psychiatric issues to be raised in this case, in which case the questioning and cross-examination will take a particular form, as well [as] speeches and summing up, or that it is to do so. To end up, as we do in my view, in the middle of a no-man's land at the moment is not a position with which this court can find favour."

Having given his ruling the judge recalled the jury and discharged them from further consideration of the appellant's case. He directed that the matter be listed before him on 5 February for a directions hearing.

Directions Hearing

17. At the hearing on 5 February 2010 Mr Beharrylal invited the judge to recuse himself from further involvement in the retrial. It was submitted that the judge had shown himself to be partial in favour of the prosecution case. His decision to discharge the jury was based on an assumption that the complainant's evidence was true and the appellant's was not. When Mr Beharrylal had sought time to investigate the effect of the expert evidence the judge had given an indication that if the appellant pleaded guilty he would be given full credit. The judge had declined to permit cross-examination on the complainant's previous sexual experience. The judge had observed that if the jury heard no expert evidence they might be tempted to acquit the appellant solely because of their sympathy for him. The fact that the judge discharged the jury against the appellant's express wishes itself demonstrated the judge's bias. The judge gave a lengthy ruling refusing to recuse himself.

Retrial

18. At the retrial, the appellant adduced no expert psychiatric evidence. The jury retired at 3.23 pm on 24 November and returned their verdicts at 12.06 pm the following day.
19. We shall now examine the grounds of appeal in turn.

Discharge of the Jury, Retrial and Recusal

20. In summary, Mr Beharrylal's submission was that the judge's decision to discharge the first jury was made for erroneous and inadequate reasons. The judge's concern appeared to be that the defence had decided not to call medical evidence. The judge had been expressly informed by counsel that he had been instructed that no medical evidence would be called, the reason being that the defence was one of consent. The prosecution had not sought a discharge of the jury and the defendant objected to discharge of the jury. In these circumstances there was no proper basis on which the judge could exercise his undoubted discretion to discharge the jury and order a retrial.
21. Since a retrial has taken place Mr Beharrylal was somewhat exercised to explain on what basis this court could properly interfere with an erroneous exercise of discretion. The verdicts were eventually returned in the retrial and it is the safety of those verdicts with which this court is concerned. Mr Beharrylal invited us to treat the prosecution at the retrial as an abuse of the process of the court since, had the discretion been exercised on proper grounds in the first place, no retrial would have taken place.
22. In Winsor v The Queen (in Error) [1866] 6 Best and Smith 143, 122 ER 1150, decided 24 January 1866, the plaintiff sought a writ of error the effect of which would have been to declare a nullity a retrial following the discharge of a jury at an assize during which they had failed to reach a verdict. At the retrial the Crown had been permitted to sever the trials of the two accused in order to be able to adduce the evidence of one against the other. It was submitted on behalf of the plaintiff that the judge had improperly exercised his discretion to discharge the first jury which, it was submitted, rendered the conviction bad in point of law.
23. The Court of Exchequer Chamber confirmed the existence of a discretion in trial judges to discharge the jury on the ground of necessity. Necessity might arise in a number of circumstances including the inability of a jury to reach a verdict. In those days the jury was to be confined without food or drink until their verdict was returned. The court also recognised that the discretion could be exercised in the interests of justice which might include prevention of the defendant from frustrating the attendance of witnesses. However, the court deplored, as it had in The Queen v John Barff Charlesworth [1861] 1 Best & Smith 460, 121 ER 786, the practice of some judges who had discharged juries to enable the prosecution better to prepare its case upon a retrial.
24. The Court of Exchequer Chamber ruled, however, that it was not competent to review the exercise of the judge's discretion. The function of the court upon an application for a writ of error was only to judge whether the record recalled from assize demonstrated an error of law requiring correction. There was no such error of law revealed by the record. Furthermore, the discharge of the jury could not constitute a verdict of acquittal even if it had been exercised on improper grounds. The accused was not, therefore, in a position to plead autrefois acquit on his retrial. Historically the only remedy available had been pardon by the Crown on the advice of the judges, there being no right of general review of the verdict of the jury or the conduct of the trial judge. Thus, for example, although trial judges were required to direct the jury to seek independent confirmation of the evidence of an accomplice, a failure to do so did not enable the court to allow an appeal consequent upon that failure.
25. By section 16(1) Juries Act 1974 the court was given power to continue a trial, following the death or discharge of jurors, provided that the number of its members was not reduced below nine. While section 16 did not expressly confer a power of discharge it recognised the common law power acknowledged in Winsor. In Hambery [1977] 2 QB 924, the Court of Appeal (Lawton LJ, McKenna and Gibson JJ) considered the exercise by a trial judge of the discretion to discharge a juror. The reason for the exercise of discretion was the juror's commitment to a summer holiday which would commence during the jury's retirement. In his judgment delivered on behalf of the court, Lawton LJ, at page 928, accepted that:

"The case [of Winsor] itself was decided on the technicalities of the writ of error. The record of the trial stated that the assize judges had decided and adjudged that it was necessary to discharge the jury and that they had done so on the ground of necessity: see LR 1 QB 390, 391. Having adjudged that the assize judges had discretion to discharge a jury on the ground of necessity, the Exchequer Chamber had no jurisdiction on writ of error to consider whether discretion had been properly exercised. Mr Philpot, on behalf of the Crown, accepted that Winsor v The Queen was decided on the technicalities of the writ of error and was no help on the question whether, under the Criminal Appeal Act 1968 the court had jurisdiction to review the exercise of judicial discretion during the course of a criminal trial."

26. The court proceeded to examine decisions in the cases of Rex v Lewis [1909] 2 Cr App R 180 and Rex v Beadell [1933] 24 Cr App R 39, both decided after the enactment of the Criminal Appeal Act 1907. Lawton LJ continued at pages 928 and 929:

"In both cases the Court of Criminal Appeal adjudged that it had no power to interfere with the discretion of the trial judge to discharge a jury. Neither case was concerned with the problem of discharging a juror. In Rex v Lewis the court considered a number of authorities including Winsor v The Queen; in Rex v Beadell the court was referred to Rex v Lewis. In 1909 if a judge discharged a juror he had to discharge all the others too as there was no jurisdiction to try a criminal case other than with a jury of 12. Nowadays both in criminal and in civil cases, courts have been more willing to review the exercise of judicial discretion than they were before 1937, the year in which the House of Lords decided Evans v Bartlam [1937] AC473. That case was concerned with the jurisdiction of the Court of Appeal to review the exercise of discretion by a judge in chambers. In his speech, Lord Atkins summarised his opinion at page 480:

"Appellate jurisdiction is always statutory: there is in the statute no restriction upon the jurisdiction of the Court of Appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it".

The other members of the House then sitting were of the same opinion. What is right for an appellate civil court to do to prevent injustice must surely be right for an appellate criminal court to do. In criminal cases, however, the jurisdiction of this court to review the exercise of a judge's discretion to discharge a jury is limited by the fact that it can only hear an appeal against a conviction on indictment: see section 1 of the Criminal Appeal Act 1968. Proceedings before a jury which has been discharged do not result in a conviction on indictment. Pleas of autrefois acquit and autrefois convict cannot be based on such abortive proceedings: see Winsor v The Queen, LR 1 QB 390. Proceedings in which not more than three jurors have been discharged can, however, result in a conviction: see section 16(1) of the Juries Act 1974. We can see no reason in principle why the exercise of judicial discretion to discharge one or more jurors should not be reviewed if it is alleged that an injustice might have resulted.

An injustice might result and a sense of injustice would result, if, for example, a judge for no good or discernible reason, discharged three coloured jurors when a coloured accused was being tried. A capricious exercise of discretion of this kind would undoubtedly be an irregularity in the course of the trial and would probably be adjudged to be a material one too. If it was, this court would have to allow the appeal subject to the application of the proviso: see section 2(1) of the Criminal Appeal Act 1968."

27. On the facts the court decided that the judge was entitled to infer from the information available to him that the holiday for which arrangements had been made by the juror was important to her, it would impact upon her ability to do justice and was a sufficient ground for discharging that juror from further attendance.
28. Since the decision in Hambery section 2 of the Criminal Appeal Act 1968 has been further amended:

"2 (1) Subject to the provisions of this Act the Court of Appeal –

(a) shall allow an appeal against conviction if they think the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case."

The Court of Appeal in Mullen [2000] QB 520 (Rose LJ, Coleman and Maurice Kay JJ) considered the implications for a conviction, which was undoubtedly justified on the evidence, when it had been obtained by means of an abuse of the process of the court in securing the appellant's attendance at trial. The security services in England and Zimbabwe colluded in order to procure the appellant's deportation from Zimbabwe in circumstances in which the appellant had been insulated from any legal advice during his detention and deportation. But for the unlawful manner of his deportation the appellant may never have been tried in England. There had been a failure to make voluntary disclosure before trial of the existence of these abuses and, for that reason, the fact that no objection had been taken at the time of the trial was not fatal to the appeal. Rose LJ, delivering the judgment of the court, concluded at page 540:

"... it is apparent that the amended form of section 2 of the Act of 1968 was intended by the Home Secretary, by Lord Taylor of Gosforth CJ and, crucially, by Parliament, to re-state the existing practice of the Court of Appeal; although there is nothing to suggest that express consideration was then given by anyone to whether "unsafe" was apt to embrace abuse of the Bennett ([1994] 1 AC 42) or any other type. It is common ground that R v Heston-Francois [1984] QB 278 and Attorney General's Reference (No 1 of 1990) [1992] QB 630 show the pre-amendment practice of this court, namely that abuse can be a ground for quashing a conviction.

Furthermore, in our judgment, for a conviction to be safe it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed the Oxford English Dictionary gives the legal meaning of "unsafe" as "likely to constitute a miscarriage of justice".

Sir John Smith's article does not deal with "unsafe" in relation to abuse, although his commentary on R v Simpson [1998] Crim LR 481, raises directly pertinent questions. But, for the reasons we have given, we agree with his 1995 conclusion that for "unsafe" there is a broad meaning and one which is apt to embrace abuse of process of the Bennett or any other kind.

It follows that, in the highly unusual circumstances of this case, notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the defendant's conviction quashed."

In R v Togher [2001] 3 All ER 463 the court followed Mullen deciding, obiter, that a conviction was liable to be quashed on the grounds of an abuse of process even when the accused had entered a plea of guilty, where he had not been in a position to apply for a stay of proceedings of trial in consequence of the prosecution's failure to make proper disclosure. Both Mullen and Togher have been followed in later cases by the Court of Appeal.

29. It does not seem to this court that the jurisdiction of the court to review the process of the trial is limited to abuses of the Bennett or Mullen type. We respectfully adopt the opinion of Lawton LJ in Hambery that this court will intervene where necessary to correct a capricious exercise of discretion affecting the fairness of the trial.
30. Having considered the transcript of proceedings on 21 January 2010 we are prepared to accept Mr Beharrylal's submission that the trial judge was giving active consideration to ordering the discharge of the jury upon the basis that the prosecution had been misled as to the intentions of the defence to adduce medical evidence. It seems to us that whatever the judge's views as to relevant circumstances for consideration whether a belief in consent was reasonable, the medical evidence would have been relevant to the question whether the appellant held a genuine belief in the complainant's consent. We are inclined to the view that had the judge exercised his discretion in order to provide the prosecution with a "clean sheet" it would not have been a proper exercise of discretion. Whether it was an exercise of discretion sufficient to give rise to an abuse of the process of the Crown Court it is not necessary for us to decide.
31. During the course of a lengthy discussion between Mr Beharrylal and the judge as to whether he was abandoning any medical issue before the jury, Mr Beharrylal revealed that he had canvassed with Dr Werner the meaning of his expressions of opinion at paragraphs 90-92 of his report. Dr Werner had said, when asked for clarification, that in his opinion "this man at the time was not guilty by reason of insanity". It was this revelation which caused the judge immediately to express the view that the trial could not proceed. Mr Beharrylal sought a short adjournment to enable him to obtain a written copy of Dr Werner's recent expression of opinion. When Mr Beharrylal returned to court and read aloud Dr Werner's opinion that "at the time of the act Mr [M] was labouring under a defect of reason" and "he did not know the nature and quality of the act, the act being to have un-consensual [sic] sexual intercourse", Mr Beharrylal added that he had drawn Dr Werner's attention to the relevant test set out in Archbold. Dr Werner had confirmed that, in his opinion, the appellant was insane within the meeting of the M'Naghten rules.
32. The learned judge asked what was counsel's present position, on behalf of the defendant. Mr Beharrylal responded that in order to advance the defence of insanity it would be necessary to obtain the evidence of two qualified psychiatrists. Dr McAnallen had excluded M'Naghten insanity. It followed that Mr Beharrylal could not advance insanity at the present trial. The judge asked whether Mr Beharrylal, having received Dr Werner's explanation, now wished to proceed to a verdict. Mr Beharrylal responded that all options had been explained to the appellant following the judge's observations. The appellant maintained that his defence was consent. Depending upon the verdicts of the jury there were different sentences available to the judge, including an order under the Mental Health Act. Mr Wade, for the prosecution, confirmed that he was not going to seek the discharge of the jury; whether the defence sought to establish M'Naghten insanity was a matter for them. It was in these circumstances that the judge proceeded to give a ruling setting out in detail the history of the trial and the evidence before announcing his decision that proper consideration needed to be given to the defence of insanity. That could not be done at short notice. Reflection was required and the jury would be discharged.
33. It follows, in our view, that the foundation for the judge's decision was the interests of justice as they had emerged on Thursday 21 January 2010. We accept that the judge had been minded to invite the prosecution to apply for the discharge of the jury before these latter events unfolded. However, Mr Wade had made it clear that he did not intend to make such an application. The judge's decision to discharge the jury was formed in the realisation that, against his own best interests, the appellant may have been insisting to his own counsel that he was not suffering from a relevant mental illness and that his defence was limited to the assertion that the complainant gave her enthusiastic consent. In our judgment the trial judge exercised his discretion for appropriate reasons and the fairness of the trial was unaffected. He was, for this reason, entitled to order a retrial.
34. The correct approach to the issue of bias was considered in R v Goff [1993] AC 646 as explained by the Court of Appeal in Re: Medicaments and Related Classes of Goods (No 2) [2001] I WLR 700 approved by the House of Lords in Porter v Magill [2002] 2 AC 357. The test whether a judge is biased is objective: would a fair minded and informed observer conclude that there was a real possibility or real danger that the judge was biased? It is not suggested that the judge had a personal interest in the outcome of the trial. It is argued that he gave the appearance of being wedded to an outcome favourable to the prosecution. We have set out earlier in this judgment the matters on which the appellant seeks to make good that argument. In our view, they have no substance. We refer only to the principal arguments. The judge's expression of view upon the prospective section 41 application was entirely appropriate. We shall deal with the detail of this section 41 application later in this judgment. In summary, the judge indicated his preparedness to permit the prosecution to adduce by means of a formal admission the fact that the previous sexual relationship between the appellant and the complainant included anal intercourse. Far from shutting out evidence the judge was proposing to deal with the issue. What he was not prepared to allow was cross-examination upon the detail of the previous sexual relationship which was not relevant to the issues before the jury. In expressing views upon the reasonable belief issue the judge was of necessity assuming that the complainant's underlying account would be accepted otherwise no issue would arise under section 1(2) of the 2003 Act. The judge's oblique reference to the possibility of a change of plea was coupled with an expression of sympathy for the appellant's predicament. If, on reflection, the appellant accepted that the complainant did not in fact consent, an issue arose whether or not his belief that she was consenting was reasonable. In the light of the objective test, about which the judge made no settled decision, but invited further argument, the appellant might find himself exposed to conviction notwithstanding a relevant mental illness. The judge was merely expressing that he was aware of the evidence of an underlying medical condition which would affect the court's decision on sentence should the appellant be minded to change his plea. The judge repeated his sympathy for the appellant's position before discharging the jury. Finally, we have already found that there is no justifiable criticism to be made of the judge's decision to discharge the jury. For these reasons we do not conclude that there was objective evidence of bias in the sense that a fair minded and informed observer would conclude that there was a real possibility or real danger that the judge was biased. We conclude that the judge was right to decline to recuse himself from the retrial.

Conduct of Retrial and the summing up

35. During cross-examination of the appellant the judge intervened on one occasion to ask the appellant whether he had done or said anything which might have caused A to telephone the police. At the conclusion of cross-examination the judge asked the appellant whether there had been any reaction from the complainant to indicate pain or discomfort during the sexual activity in the bedroom. The judge was referring to the injuries to A's lip and peri-anal area. Mr Beharrylal submits and we agree that it is not the judge's responsibility to act as prosecuting counsel. It is, however, permissible for the judge to pose questions for the purpose of resolving ambiguity. Ambiguity may arise, in our judgment, on occasions when the jury without assistance from the witness himself is likely to speculate when otherwise evidence may be given by way of explanation. The jury was bound to consider why the 999 call was made and whether the injuries suffered by the complainant were in the circumstances consistent with the appellant's evidence. The appellant was being given the opportunity to respond to and explain features of the evidence which might be the subject of adverse comment by the prosecution or speculation by the jury. We do not regard the judge's questions as either inappropriate or excessive. Counsel had the opportunity to ask questions in further re-examination if he wished and he did not. This was, in our view, a conventional exercise of the judge's discretion to ask questions at an appropriate stage in the course of the appellant's evidence.
36. The appellant argues that the judge's summing up was one sided. At the commencement of his summing up the judge directed the jury to distinguish between speculation on the one hand and the drawing of inferences on the other. As an example of speculation he referred to two people who had been present in the house who had not given evidence, A's friend and the appellant's friend. The judge warned the jury against speculating what they might have said had they given evidence. The judge distinguished speculation from the drawing of an inference. He continued at page 4C, volume VI:

"What by example is an inference? Well, I will give you an example, there are plenty, both inferences for the defence and prosecution, but there is a short one which I hope will make the point, and I use it simply for that, not to give it any other particular prominence. The prosecution would say to you that, given the 999 call made by Miss [A] moments before she went into the bedroom, it isn't conceivable or logical that she would then within moments having consented to sexual intercourse with Mr [M]. They say that's an inference. You take fact one, the phone call. You take fact two that she, following that phone call, goes into the room. You then are left with an inference – would she have, in those circumstances, been likely or unlikely, possible or impossible, that she'd been consenting to sexual intercourse? That is what's meant by an inference. As that is an example, it's an inference, you will decide on the prosecution's case is a fair one or an unfair one. That is entirely a matter for you because, as I say, the facts are entirely your responsibility. You will want to take account of the arguments you have heard by counsel but you are not bound to accept them."

It is submitted that the judge was descending to the role of prosecutor. His example, it is suggested, lacked neutrality. The judge did not balance his example by reminding the jury of the defence argument that A may have been consenting to sexual intercourse in order to persuade the appellant afterwards to leave the house. A had said in her ABE interview that she had, when first encountering the appellant naked in the bedroom, given the impression that she might be willing for sexual contact in order to keep him calm and persuade him to put his clothes back on. She had to get ready to go to college. When that did not work out she continued, "please that's not the way ... you're making me embarrassed ... you're making yourself cheap, and you and me ... he started ripping my shirt."

37. In our judgment, the judge's illustration in the context of the evidence in the case was unobjectionable. He made it clear that both parties relied on inference. Although this was an inference which the prosecution had invited the jury to draw the judge did not endorse it. He informed them that it was entirely for them whether an inference should properly and fairly be drawn. The judge did at page 14D of his summing up remind the jury of A's evidence that she had at first given the impression that she was willing to have sexual intercourse with the appellant. It does not seem to us that it was incumbent upon the judge explicitly to remind the jury of the defence response to the inference invited provided that he made it clear that it was for the jury to decide whether such an inference should be drawn or not.
38. At page 10 of the summing up the judge said:

"Now, before we move on to the evidence, there are a couple of observations that I would wish to make, and before I make them you will remember what I said about it being your view of the evidence that matters, not mine. But it is right to simply air what are sometimes described, whether accurately or helpfully, sometimes described as the myths of rape, and I air them for no other reason than to give you a basis for your discussions. If anything I say is something with which you disagree, ignore it. Now the first thing which is pertinent you may feel to this case is this. As I am sure you are aware and is accepted, the image of rape as the attack by a stranger from a bush late at night, is precisely that – a myth. Rapes occur in a whole variety of situations. Evidence shows us that in over 90% of allegations that come before the court, the two principal people involved know each other and have often on occasions known each [other] for a long time and very well. It is sadly not unheard of that those that love each other can rape each other. Those in relationships can attack each other. It is nothing, it is human nature. And your experiences ... I am sure will allow you to consider that... You will consider this case on its facts but accepting that you don't classify an offence as only occurring in any particular way."

At page 11A the judge concluded:

"The other thing you may think is relevant in this case is that it would be a myth to assume every person who is subjected to a serious sexual assault reacts in precisely the same way. The presumption that people fight or scream, or injure their assailant, is a myth. Some do, some don't. Some complain immediately. Some don't complain for years. Sometimes it takes them a while to be able to tell the story in full. Sometimes their reactions on who they tell are particular to them, not to some particular stereotype. And so when you consider this case, consider it, I ask you simply, within that commonsense and experience, that offences of this sort cover ... the widest possible range."

39. Mr Beharrylal complains that he was not consulted before the judge's summing up as to the terms of such directions. He does not argue that the judge was not entitled to caution the jury against stereotyping. He does argue that the judge should not have made reference to the proportion of cases which involve those known to one another. In our view the judge was entitled, upon the issues which arose in the present case, to give the jury a direction upon the risk of stereotyping. Apart from his reference to a proportion of cases, about which there was no evidence before the jury, and no source known to this court, the judge's remarks were, in our view, unexceptional. We accept, however, that in this limited regard the judge exceeded legitimate comment. Perhaps if the matter had been raised in discussions with counsel before speeches the error would have been avoided. However, the judge was not informing the jury that 90% of cases of rape involved people known to one another. He said that 90% of allegations were made against someone known to the complainant. He continued, "it is sadly not unheard of that those that love each other can rape each other". In our view, the effect of the judge's words read as a whole was simply to caution the jury against stereotyping. In context, we do not consider that mention of the proportion deprived his direction of balance, nor that the jury would have read into it any more significance than the generality of his words signified, namely that they should be beware of judging evidence against stereotypes.
40. Mr Beharrylal has made further criticisms of the judge's summary of the evidence. The judge referred to A's first account as that given in the ABE interview when, as a matter of fact, her first account was a complaint made by telephone to the police that the appellant had "tried" to rape her. It is suggested that by reminding the jury of A's account in that interview, the judge was giving it undue prominence. The judge is criticised for inviting the jury to consider whether there may have been a cultural dimension to A's reluctance to have sexual intercourse with the appellant at 7 o'clock in the morning in a bedroom adjoining her mother. The direction obscured the defence argument that the complainant may have been engaged in consensual sexual activity in order to avoid embarrassment. It is said that the judge did not sufficiently emphasise the defence case that, had the complainant called for help, it was close at hand. Finally, the judge reminded the jury that the medical evidence of injuries did not establish whether the sexual intercourse was consensual or not, but the jury was entitled to view the evidence against the accounts of A and the appellant respectively.
41. In our view none of these submissions has substance. We have considered the whole of the summing up. The judge gave equal prominence to the evidence of the complainant and her sister and to the evidence of the appellant. He reminded the jury of cross-examination of the complainant and her sister. As the judge remarked at the commencement of his summing up the accounts given by the principal witnesses, the complainant and the appellant, were irreconcilable. The complainant said that she was resisting, saying "No", and sobbing throughout the appellant's attack upon her. The appellant's account was that the complainant enthusiastically engaged in consensual sexual activity in which she was to a large extent taking the lead. The judge was emphatic in leaving these issues for the jury to resolve. We reject the assertion that the summing up was one sided.

Section 41 Youth Justice and Criminal Evidence Act 1999

42. It was, as we have said, an admitted fact that the complainant and the appellant had, before A terminated their relationship, been engaged in a full sexual relationship including anal intercourse. The judge was content that a formal admission should be presented to the jury in those terms. The appellant wished in addition to cross examine the complainant about an occasion in July 2009 when, the appellant wished to allege, A had performed oral sex on the appellant in a cinema. Secondly, the appellant wished to put to A that on 14 February 2009 she had sent her younger brother out of the house in order that they could engage in sexual intercourse, both vaginally and anally, in her bedroom. As it is put in Mr Beharrylal's written submissions, these allegations had "parallels" with the occasion of the alleged rapes.
43. The judge declined to permit these questions. He concluded that the defence came nowhere near establishing a degree of similarity such as was required to render them admissible.
44. Section 41(2) of the 1999 Act provides that the court may give leave on an application made on behalf of the accused and may only give leave if satisfied that sub-section (3) or sub-section (5) applies, and that a refusal of leave may render any subsequent conclusion of the jury unsafe. In the present case the defence relied about sub-section (3) since the issue arising in the trial was one of consent. Sub-section (3) permits questions to be asked when the sexual behaviour to which they relate is so similar:

"(i) to any sexual behaviour of the complainant (according to the evidence adduced or to be adduced by or on behalf of the accused) which ... took place as part of the event which is the subject matter of the charge against the accused; or

(ii) to any other sexual behaviour to the complainant which (according to such evidence) took place at or about the same time as that event,

that the similarity cannot reasonably be explained as coincidence."

45. By sub-section (4) no such question is to be regarded as relevant to an issue in the case if in the court's view it is reasonable to assume that the purpose or the main purpose of the question is to elicit material impugning the credibility of the complainant as a witness. We need not be concerned with the motivation for the proposed questions since the judge found that the behaviour concerned was not so similar that it could not be explained as coincidence. First, it took place 4 months and 3 months respectively before 8 June 2009. Such behaviour could not be regarded as part of the conduct alleged to have amounted to the offences of rape, nor could it be regarded as having occurred at or about the same time. Secondly, the behaviour alleged on the earlier occasions was not so similar that it could not be explained as coincidence. The "parallels" to which the appellant refers is the complainant's willingness to engage in fellatio in a public place; and the complainant's willingness to engage in sexual intercourse in her own bedroom. The material feature of the alleged sexual behaviour of the complainant at the time of the alleged offence was not the fact of intercourse of any particular type, which was not in issue, but the circumstances in which it occurred, namely at 7.00 am in a bedroom adjoining the complainant's mother's bedroom and with her sister, brother and friend moving about outside the room. In its environmental circumstances this behaviour was not so similar that it might support a conclusion that coincidence could be excluded, nor was it probative on the issue of consent. In our judgment the judge was right to exclude these questions.
46. Our attention has been drawn to the speech of Lord Steyn in R v A (No2) [2002] 1 AC 45 in which the House of Lords held that in order to render a trial in England and Wales compliant with Article 6 it may be necessary for the trial judge to read down section 41(3)(c) by utilising section 3 Human Rights Act 1998. At paragraph 45 Lord Steyn said:

"45. In my view section 3 requires the court to subordinate the niceties of the language in section 41(3)(c), and in particular the touchstone of coincidence to broader considerations of relevance judged by logically and commonsense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section 3 to read section 41, and in particular section 41 (3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41 (3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, e.g. an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, section 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in section 3 of the 1998 Act. That is the approach which I would adopt.

47. ... The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the Convention. If this test is satisfied the evidence should not be excluded."

47. Mr Beharrylal has submitted that the fairness of the trial was adversely affected by the exclusion of these questions. We disagree. We note that when the judge had given his ruling indicating that the formal admissions would include a reference to consensual anal intercourse counsel responded as follows:

"Your Honour I am grateful for that. It is ... one of the first occasions where I have actually seen how your Honour has formulated the way in which the admission could be approached because that actually would deal I think with the point I am looking to explore."

48. It is understandable that the defence would wish to avoid the possibility that in the absence of evidence of the nature of the sexual relationship the jury might be tempted to speculate that this young woman would have been unlikely to consent to anal or oral sexual intercourse. While, as a matter of fact, the complainant did not herself accept, when asked in the absence of the jury, that she and the appellant had ever engaged in oral sexual intercourse, she did accept that there had been a full sexual relationship including anal intercourse. In the view of this court the legitimate anxiety of the defence was adequately resolved by the terms of the formal admission. There was no issue between the prosecution and the defence that the complainant was simply not prepared to engage in sexual activity with the appellant. Her evidence was to the effect that having terminated their relationship she was certainly not prepared to engage in sexual activity in the circumstances in which the appellant was demanding it. There was no relevant similarity between the previous and current conduct alleged which necessitated an exploration of the circumstances so as to avoid unfairness to the appellant. Neither was there in our view any sufficient chronological nexus between these events to render previous behaviour in any sense probative of the issue the jury had to resolve.

The objective test of reasonable belief

49. The prosecution must (section 1(1)(b) and (c) Sexual Offences Act 2003) prove both that the complainant was not consenting and that the defendant did "not reasonably believe" the complainant was consenting. We repeat that by section 1(2):

"(2) Whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents."

50. Mr Beharrylal informed the judge at the commencement of the first trial that he intended to rely on paragraphs 90-92 of Dr Werner's psychiatric report. The judge accepted that Dr Werner's evidence was relevant to the subjective element of the belief, namely whether the defendant held a genuine belief that the complainant was consenting. Subject to further argument, however, he did not accept that a delusional belief, whether or not it was occasioned by a mental disorder, was capable of rendering reasonable a belief which otherwise was manifestly unreasonable. The judge having expressed his opinion, Mr Beharrylal says that he was discouraged by the appellant from calling Dr Werner to give evidence. Mr Beharrylal argues that the judge was wrong so to express himself. He submits that it was a matter for the jury whether in all the circumstances, including the appellant's bi-polar disorder, the appellant's belief was held "reasonably". The issue is raised, therefore, to what extent a mental characteristic of the accused is a "circumstance" which the jury may properly consider.
51. There is, it seems to this court, an insurmountable hurdle in the way of Mr Beharrylal's submission. At the stage when the first jury was discharged Mr Beharrylal had discovered that Dr Werner's opinion, properly framed, was that the appellant was M'Naghten insane. He was instructed not to adduce the evidence of Dr Werner since the appellant was not prepared to risk a verdict of not guilty by reason of insanity. It was, we conclude, never the intention of the appellant to adduce medical evidence in the second trial because Dr Werner's evidence would have damaged the appellant's case. Furthermore, Mr Beharrylal accepts that at no stage during the second trial did he invite the judge to re-consider his preliminary view after further argument. The issue was simply not raised for the judge's consideration.
52. We turn to paragraph 92 of Dr Werner's expression of opinion as to the appellant's state of mind at the time of the alleged offences. He concluded that the disturbance of the appellant's mental state caused the appellant to misinterpret ambiguous messages which he received from the complainant and her family. For example, he was referred to as her "boyfriend". She went alone to the bedroom where the appellant was lying naked under the covers. In Dr Werner's view the appellant was not able to perceive the signals given by the complainant that she did not consent to sexual intercourse. However, Dr Werner then stated that the appellant understood that the complainant did not want sex with him because her family were present in the house. The appellant did not comprehend that of itself this was a sufficient and valid reason for the complainant's refusal.
53. In our opinion, upon analysis, the report of Dr Werner did not assist the defence. Dr Werner would, if called to give evidence, have told the jury that the appellant knew that the complainant was refusing sexual intercourse. That was emphatically denied by the appellant himself in evidence and was inconsistent with the evidence he gave at the second trial. Furthermore, there was a stark conflict in the evidence of the appellant on the one hand and the complainant on the other. His evidence was of enthusiastic and leading participation by the complainant. The complainant's evidence was that she was sobbing and shaking and saying "No", an account which received some support from those who observed her immediately after the incident. It does not seem to us that Mr Beharrylal was, in reality, in any position to rely upon the evidence of Dr Werner merely for the purpose of explaining why this man, by reason of his mental illness, may have misinterpreted signals. We do not consider that the appellant's second trial was rendered unfair by Mr Beharrylal's instructions not to call Dr Werner to give evidence. Even if the test of reasonableness permitted the jury to consider what Dr Werner believed to be an inability to read the complainant's "signals" we have no doubt that the revelation that Mr M had admitted knowing that the complainant was not consenting would have been fatal to the appellant's case.
54. There is, we recognise, an interesting argument to be addressed as to whether there is a material difference between (1) an honest belief held by a defendant which may have been reasonable in the circumstances and (2) a belief which a reasonable man, placed in the defendant's circumstances, may have held. A statutory reasonable man test was held by the Privy Council in Attorney General for Jersey v Holley [2005] UK (PC) 23, [2005] AC 580 (PC) to be stricter than the "looser" concept of an honest belief which was reasonable in the circumstances (see the opinion of Lord Nicholls, particularly at paras. 17-25). In the latter case it is arguable that the circumstances may include a mental illness which materially affected the defendant's ability to interpret the complainant's lack of consent. This, however, is not the time to engage in that argument since, on the facts of this case, a permissive construction of the section would not have availed this appellant.
55. Mr Beharrylal raised Article 6 and Article 14 of the European Convention on Human Rights as a consideration relevant to the question how section 1(2) of the 2003 Act should be interpreted. His argument is that the defendant is presumed to be innocent and is entitled to a fair and public hearing. If a defendant suffering from a relevant mental illness is prevented from adducing medical evidence of his disorder at his trial he suffers discrimination.
56. In our judgment the submission is without substance. The appellant was not prevented from adducing the evidence. He chose not to adduce it. As we have found, if the evidence had been adduced it would inevitably have resulted in a finding that the appellant knew the complainant was not consenting. Further, Article 6 is concerned with procedural fairness and not with the fairness of the substantive law: see Matthews v Ministry of Defence [2003] 1 AC 1163.

Safety of Verdicts

57. Having considered each of the arguments raised by Mr Beharrylal on the appellant's behalf we have concluded that these verdicts were safe and the appeal must be dismissed.