England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOLTON CROWN COURT
His Honour Judge Morris
T20097046

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/10/2012

The Lord Chief Justice of England and Wales, Lord Judge:

1. This is an appeal by C against his conviction in the Crown Court at Bolton before His Honour Judge Morris and a jury of 18 counts of sexual crime. The step-daughter N (the complainant), who was born in November 1980, and who was 18 years younger than the appellant. The appellant married her mother in 1983. The complainant was sexually abused by him for over a period of about twenty years, beginning when she was about 5 years old, and continuing until May 2006, when she was 25 years old. Matters were reported to the police in 2007. When the appellant was arrested he insisted that there had been no sexual activity of any kind between them before the complainant reached her sixteenth birthday, and that thereafter there was a sexual relationship between them in which all the sexual activity which took place was entirely consensual.
2. It therefore follows that the issue in relation to counts 1-9, which covered the early years when the complainant was a child, was whether sexual abuse had happened at all, and, in relation to counts 10-18, whether the sexual activity was consensual or not. The unusual feature of this case is that a substantial body of evidence was available in relation to counts 10-18 which showed apparent consent to sexual activity by the complainant after she was 16 years old, and further evidence which appeared to suggest that from time to time she initiated and welcomed sexual activity.
3. This material included some 400 or so photographs taken by the appellant over a number of years of the complainant, posing naked and by her smile and demeanour appearing to indicate that she was willing for the appellant to take these photographs of her. A video film was available which showed her, again apparently willing, performing oral sex on him. A number of text messages from her to the appellant included communications which would normally be regarded as affectionate, by, for example, the use of pet names, and there were additional text messages of an explicit, uninhibited sexual nature, written in graphic coarse language. All this material related to the period after the complainant was 16 years old, and covered some of the years after she left home and the area and went to university in Scotland. Indeed, some of the later counts in the indictment related to this period when, as Mr J Samuels QC for the appellant submitted, the complainant was removed both in time and in distance from the appellant and when she could have devised a strategy to avoid him, if she wished to do so. Mr Samuels also drew attention to the nature of the sexual activity itself, which in the complainant's more mature years involved anal and oral, but not vaginal intercourse. So far as vaginal intercourse was concerned, the appellant did not persist because the complainant found this extremely painful, and as to oral sex, he ejaculated inside her mouth on one occasion only, and when she found it sickening, he did not persist. Accordingly, Mr Samuels suggests that he did not oblige her to participate in sexual activity when she was reluctant, and this tended to confirm that the activity which did take place was indeed consensual.
4. All these issues were carefully canvassed before the jury. We have dealt with them at the outset of the judgment just because, taken in isolation, they might well lead to the conclusion that the verdict of the jury was surprising. They formed the basis for a submission that in relation to counts 10-18 the case should be withdrawn from the jury. However the evidence relating to each group of counts was admissible in relation to the other group, and although the case for the Crown was not presented on the basis that the complainant lacked the capacity to consent, her account of what had occurred before she reached the age of sixteen was plainly relevant to the circumstances in which the admitted sexual relationship continued after she was sixteen years old. The judge rightly rejected this submission. However, when he came to sum the case up to the jury, again, rightly, the judge directed them that they could only "proceed to consider your verdicts on the later counts … if, and only if, it is proved, so that you are sure, that there was a history of sexual abuse, as alleged by … why?; because … the prosecution case is based on the proposition that, having been abused and sexually controlled as a child, that abuse, domination and control continued after her sixteenth birthday". He therefore directed the jury that it was only if they were sure that there was a history of sexual abuse when the complainant was a child that they should consider convicting the appellant on the later counts. It is, we add, clear from questions asked by the jury after their retirement, that this direction was followed.
5. As this extract from the summing up indicates, the reality of this case cannot be understood without reference to the long years of the complainant's childhood during which, as the jury found, she was the victim of repeated sexual abuse by the appellant. The complainant's first recollection of anything untoward occurring was when she was about 5 years old. At about that age the appellant would often sit with a cushion over his groin, moving his arms up and down when she was present in the room in her nightclothes. When she was about 7 the appellant started to come into the bathroom when she was having a bath. He would lower his trousers and tell her to touch and rub his penis. On one occasion when he ejaculated into the bath and then apologised to her saying that he should not have done that. She was repeatedly encouraged to touch his penis in this way over a very long time. This activity was reflected in counts 1-3.
6. At the same sort of age the appellant would also visit her in her bedroom, pull down the covers and her nightclothes, and touch her vagina. As time progressed he started doing this in different rooms about the house, and it happened many times over the years. She was frightened of him but he told her not to tell anyone. This activity was reflected in counts 4-6.
7. From about the age of 10 or 11 onwards the appellant forced her to perform oral sex on him on many occasions. She recalled a particular incident when she was 13 years old in a public garden in Bolton. Hidden by some trees he stood with his back to the fence so as to see if anyone would be coming. He encouraged her to masturbate him and then put his erect penis into her mouth. He ejaculated, although not into her mouth. Her memories of the continuous abuse, including forced masturbation of him and oral sex and his touching of her vagina were very strong memories. Counts 7-9 covered these activities.
8. As the complainant approached the age of 16 the appellant told her that he could not wait to "shag her". After she was 16 years old he attempted to have full vaginal intercourse with her, usually from behind, on a number of occasions, but she pulled away. She said to him that it was much too painful. She told the jury that her real motive was that she did not want him to take her virginity. His response was to say there was something wrong with her, and at least she should let him have anal sex. Counts 10-12 covered the offences of attempted rape.
9. Counts 13-15 addressed the occasions when the appellant forced her to submit to anal intercourse. This activity began while she was still living at home, and thereafter continued after she went to university in Scotland at the age of 19. She came home from time to time, according to her evidence as infrequently and for as short periods as possible, and did her best to avoid him by going out to work. However when she did return home he would make her masturbate him or submit to oral sex or anal sex.
10. Eventually in 2005, while looking through a window at home, her mother saw her and the appellant in a sexually intimate position. Her mother asked what the complainant was playing at with her husband. The appellant said that they were in love. Her mother asked the complainant to leave home. She did so. She returned to university. Thereafter her family ostracised her. She stayed at university for Christmas 2005. In the meantime the appellant continued to contact her by phone and by text, sending her threatening messages, and during Christmas 2005 he visited her at university when oral sex occurred.
11. In May 2006 the appellant persuaded her to visit him at his bed-sit. She could find no escape. She believed that if she did not agree he would turn up at her university again. He took photographs of her engaging in sexual activity in him and tried to have anal sex with her. She agreed that there were photographs of her engaging in sexual activity with the appellant. She also accepted that she appeared to be smiling. Eventually she informed her mother and her boyfriend. They urged her to report these matters to the police. On New Year's Eve 2006 she did so. She said that she had not reported the abuse earlier because she was frightened that she would be disbelieved and she was scared of the appellant and what he might do. In January 2007 the appellant came up to see her at university and bombarded her with aggressive text messages. She thought he had come to kill her. She was petrified.
12. Dealing with it generally, her evidence was that she felt trapped and afraid of the appellant even after she left home. Throughout her childhood and after she grew up, his attitude to her was domineering, aggressive and controlling. During her early teenage years he had told her on numerous occasions that if he could not have her, no one would. He threatened to find out and kill her and any new partner. He told he had been in love with her since she was 5 years old. He was often aggressive and violent towards her. The whole family was frightened of him. She hated him and did not want him to touch her, but could not find a way out. She described how he had a hold on her and would telephone her at university. When he discovered that she had a boyfriend he threatened her for two hours on the phone and made her tell him that she would split up with her boyfriend. Essentially he controlled her, and she could find no way out of the situation in which she found herself. She smiled while he took photographs and a video of her, because he required her to do so. She sent him graphic text messages, again, because he required it. She feared the consequences if she did not agree, and she was unable to avoid succumbing to his sexual demands even when she was an adult at university away from home. She reiterated that she never wanted a sexual relationship of any kind at any time with the appellant, but he was manipulative and controlling.
13. In addition to the text messages from the complainant to the appellant, on which the appellant relied, the Crown was able to identify and rely on some text message and other messages sent by the appellant to the complainant during 2006. In these he repeatedly sought to convince or persuade or frighten or threaten her. In some, he begged her not to kill "their relationship". He wrote that he had loved her "for the past 23 years and we had been in love for the past 15 years"; that would be when she was aged about 11 years old. In a Dictaphone message he observed "I have been in your life for 23 years, and part of your family, as well as your lover … I have been in love with you since you were a child … I know you love me as a father and a lover too, and have done for the last 15 years". In another letter he asserted "there's a special bond between us … you're my soul mate … I am no ordinary man and I'm capable of more than ordinary men". When asked about these messages in his evidence, the appellant agreed that he had threatened to kill the complainant and himself, and to harm whoever she was with, but he said that this had only happened on one occasion and in the heat of the moment when he discovered she was "two timing him".
14. This material tended to confirm that, contrary to the appellant's account, there had indeed been an abusive long term sexual relationship between him and the complainant while she was still a child. If so, as the judge explained to the jury, the evidence consistent with the complainant's apparent consent to sexual activity after she was sixteen years old would be cast in a very different light. It also offered some confirmation that the appellant was, and believed himself to be in a controlling relationship with the complainant.
15. The issues argued in this appeal are directed to the evidence available for consideration by the jury. This was not a case in which the Crown contended for a conviction on counts 10-18 on the basis that the complainant agreed to sexual activity because she had been groomed and corrupted by the appellant into what might be described as conditioned consent. Rather the evidence of prolonged grooming and potential corruption of the complainant when she was a child provided the context in which the evidence of her apparent consent after she had grown up should be examined and assessed. Properly analysed, so it was argued, the evidence of apparent consent did not undermine the credibility of the complainant that she never consented.
16. This approach was entirely appropriate. Once the jury were satisfied that the sexual activity of the type alleged had occurred when the complainant was a child, and that it impacted on and reflected the appellant's dominance and control over the complainant, it was open to them to conclude that the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting.
17. The sensitive and not altogether straightforward issues were left to the jury in the course of admirably clear directions, carefully prepared for the purposes of this unusual case. The conclusions reached by the jury were open to it. The appeal against conviction must be dismissed.

Sentence

18. There is no application for leave to appeal against sentence, but a correction is required which does not affect the overall term of an extended sentence of 28 years imprisonment pursuant to s.85 of the Powers of the Criminal Courts (Sentencing Act) 2000, comprising a custodial term of 18 years and an extension licence period of 10 years. This order was made on the basis of the convictions in counts 13-17, which were offences of rape contrary to s.1(1) of the Sexual Offences Act 1956 and count 18, rape, contrary to s.1 of the Sexual Offences Act 2003. Counts 13, 14 and 15 covered the period between 29 November 1996 and November 1999, and there is evidence of the complainant tends to suggest that these earlier offences of anal rape occurred before 30^th September 1998. The provisions of s.85 of the 2000 Act apply only to offences committed after that date. In place of the extended sentences on these counts we shall substitute sentences of 18 years imprisonment, to run concurrently with the sentences on counts 16-18. The overall sentence is unaffected. These counts we shall remove the extended sentence, and impose a sentence of 18 years imprisonment.