England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4th December 2012

1. LORD JUSTICE McCOMBE: On 25th July 2011, in the Crown Court at Snaresbrook after a trial before His Honour Judge Pardoe QC and a jury, the present appellant was convicted of rape, contrary to section 1(1) of the Sexual Offences 2003, on count 1 and causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, on count 2 of the indictment. On 21st August of that year he was sentenced by the judge on count 1 to a term of imprisonment for public protection, with a specified minimum custodial term of five and a half years, and on count 2 to imprisonment for 11 years. He now appeals against conviction by leave of the full court.
2. The facts alleged by the Crown were these. On 10th January 2011 the complainant (whom we will call, where necessary, "CB") was at the appellant's house. She was about to leave him when, according to the complainant, he stopped her from doing so, pulled her hair and called her a "white whore". He proceeded to punch her. He asked her to give him oral sex and dragged her into the bedroom, where she was pushed onto the bed and had her hands and feet bound with tape. He had a knife in his hand, which he kept digging into her. He cut her clothing and orally and vaginally raped her. He then cut the tape on her legs and she went, without full clothing, to a neighbour's house. The neighbours gave evidence that the complainant immediately complained of being assaulted and raped.
3. At something after quarter to seven that morning she attended at hospital. She was found to have extensive bruising on the left side of her face from above her left eye down to the jawline, she also had bruising and swelling over her right cheekbone, a fractured left cheekbone, a cut inside her left upper lip and the skin inside her mouth was cut. A left upper incisor tooth was also missing. Genital examination revealed no injuries which either confirmed or refuted the allegation of vaginal penetration.
4. The defendant gave evidence in his defence. His case was that he had not been violent towards the complainant. She had shown him affection on the way to his house earlier in the evening and continued to do so when they were inside the property. She encouraged him to have sexual intercourse. At her request, he bound her arms and legs with tape, and she gave him oral sex, after which he cut the tape with the knife. He did not slash at her or prod her with the knife or repeatedly punch her as she alleged. His case was that her injuries were sustained during a fall later, when she fell down some steps.
5. The appellant initially presented a number of grounds of appeal settled by trial counsel which were rejected by the single judge on the papers, and his renewed application for leave to appeal on those grounds was refused at a hearing before the full court, that hearing not being attended by counsel. However, at that hearing the court itself did grant leave to appeal on one ground only, not previously advanced, and directed that a new advocate be instructed by the Registrar to advance that ground on the appellant's behalf. This ground, as now formulated by Mr Fidler, who appears for the appellant before us this afternoon, is contained in his skeleton argument in the following terms:

"1. That the summing up of consent at paragraphs D-G of page 11 [i.e. of the summing-up] was flawed within the factual matrix of this case.

2. That the learned Judge should have clarified for the jury the evidential presumption in section 75 of the Sexual Offences Act, the burden being on the Crown to disprove, the appellant having raised sufficient evidence of it."

6. The argument raised centres on the learned judge's direction on consent in the context of the evidential presumptions imposed under section 75 of the 2003 Act. That section, so far as relevant for the present circumstances, reads as follows:

"(1) If in proceedings for an offence to which this section applies it is proved -

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2) existed, and

(c) that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2)The circumstances are that —

(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him ..."

The remaining parts of that section are not material on the present facts.

7. The full court, in granting leave to appeal, focused upon a passage in the learned judge's summing-up of the case recorded at page 11 between letters D and G of the transcript, to which we shall come. However, it is well to consider the directions as a whole on this point.
8. The learned judge provided written directions to the jury the contents of which emerge on reading the transcript, although we do not have a benefit of a copy of them in writing. His first direction on count 1, the count charging rape, is to be found between pages 8C and 9D of the transcript as follows:

"The prosecution must at the first stage of its case prove so that you are sure the following:

(1) That 'D' [the defendant] did penetrate [CB's] vagina with his penis. That act is admitted. The defendant says yes, he did do that.

(2) That the defendant at the time of penetration or at the time immediately before the first sexual activity between them began (a) was using violence against 'C', that is [CB], or causing her to fear that immediate violence would be used against her and that the defendant knew that.

That is a double requirement, but you may think that if you are sure of (a), that he was using violence or putting her in fear of violence, there won't be much difficulty in finding that he knew that that was what was happening, but it is a double requirement.

If the prosecution proves so that you are sure all of (1) and (2) you should convict the defendant on count 1.

If you are sure of (1), and of course that is admitted, but not sure of either 2(a) or 2(b), not sure that he was using violence against her -- his case, of course, is that he used no violence. If you are not sure whether he was or if you are sure that he wasn't -- if you are not sure that he was or not sure that he knew it the prosecution must go on at the second stage of its case to prove so that you are sure that the complainant did not consent and that the defendant did not reasonably believe that she was consenting."

9. After that direction, and before proceeding further with the law, the learned judge gave an overview of the evidence. He summarised the complainant's evidence, that she was pulled by the hair, racially abused in the manner we have summarised and subjected to sustained violence, in the course of which the appellant raped her. The judge also summarised the defendant's evidence that the complainant had shown him affection on the way to his flat, encouraged intercourse, and indeed enthusiastically participated in it, including the binding of her; in other words, that this was consensual intercourse.
10. The judge then returned to the issue of consent in the passage specifically alluded to by the full court in granting leave. That passage is between letters D and F on page 11 and is in the following terms:

"Consent. On this issue first the prosecution's case is that at the time of the defendant's penetration of the complainant's vagina, an act that is admitted, or immediately before their sexual activity began in the defendant's flat, the defendant was using violence against the complainant or was causing her to fear that violence would be used and that he knew that. If you are sure that this is so, then by law you must find that the complainant did not consent to the act of penetration which is admitted."

It is that passage in particular upon which Mr Fidler for the appellant focuses and submits that it contains a misdirection, the arguments as to which we shall turn.

11. The learned judge continued his direction as follows, continuing at letter G on the same page, immediately after the passage we have just read:

"Second, if you are not sure that the defendant was using violence against the complainant at that point in time or putting her in fear of violence, you must then consider whether or not you are on all the evidence sure that the complainant was consenting to that act, that is the act of penetration."

12. Further down the same page, the judge addressed the question of the defendant's state of mind as to consent, which he dealt with at pages 12H to 14D:

"Now to the defendant, the defendant's belief in consent. In considering the defendant's belief in the complainant's consent you may conclude on the evidence that the defendant had recently consumed alcohol and injected heroin as is alleged by the prosecution. However, you need to look at all the circumstances as they would have appeared to the defendant had he been sober and drug free.

On the defendant's belief first the prosecution case is that at the time of the defendant's penetration of 'C', that is the complainant, which is admitted, or immediately before their sexual activity began the defendant was using violence against her or was causing her to fear that immediate violence would be used and that he knew that.

If you are sure that this is so then by law you must find that the defendant had no reasonable belief that the complainant consented to the defendant's act and you should then convict the defendant on count 1.

Second, if you are not sure either that the defendant was using violence against the complainant at that time or putting her in fear of immediate violence or both, you must then consider whether he honestly believed that the complainant was consenting. If you are sure that he did not you should convict the defendant on count 1.

If, on the other hand, you conclude that the defendant did believe or may have believed that she was consenting, you need to consider the final question which is whether his belief was reasonable in the circumstances. If you conclude so that you are sure that it was not you should convict the defendant on count 1.

If, on the other hand, you conclude that the defendant's belief was or may have been reasonable in the circumstances, you must find the defendant not guilty."

13. In the same judgment granting leave to appeal, Hooper LJ, giving this court's judgment, indicated that whatever view the court might take of the directions that we have summarised, it might be that the conviction would be considered safe because of what the judge said later in the course of summing-up on the law on count 2, which is to be found at page 17D of the transcript in these terms, he had been dealing with the offence on count 2, namely causing grievous bodily harm with intent, but interpolated at letter D:

"The defendant's case on count 1 was that the complainant was consenting to that sexual activity, and in particular to his act of vaginal penetration with his penis."

14. In his skeleton argument, Mr Fidler submits shortly that there was evidence for the jury to consider whether at the point of penetration the appellant believed reasonably that the complainant was consenting to intercourse. Accordingly, her argues that the judge's summing-up on count 1 was defective and that the conviction is unsafe.
15. We have considered the case of Cicarelli [2011] EWCA Crim 2665. In that case the allegation was that the accused had sexually assaulted the complainant while she slept. His evidence was that while he knew the complainant was asleep, he believed she would have consented because of a sexual advance made by her to him earlier on the evening in question. The trial judge in that case addressed section 75 of the 2003 Act and ruled that there was no sufficient evidence of reasonable belief and said that she would direct the jury accordingly. At that stage the accused changed his plea to guilty. Appeal was brought to this court on the basis that the judge's ruling in that respect was wrong. In dismissing that appeal, the Lord Chief Justice, giving the judgment of the court (for himself, Butterfield and Henriques JJ) said this at paragraphs 20 and 21 of the judgment:

"20. The basis of the submission that the judge's ruling was wrong is encapsulated in the proposition that it was enough for the appellant to have given the evidence which he gave, that he believed that the complainant was consenting. Thereafter, whether or not that belief was reasonable was a question for the jury. In other words, his asserted belief was sufficient to raise the issue. The difficulty with this submission is readily identified. It is not what section 75 provides. The belief must be reasonable, or putting it more precisely, there must be some evidence that the belief was reasonable.

21. The issues of the appellant's reasonable belief in the complainant's consent, either when she was asleep or in any other of the situations identified in section 75(2) (in what we describe as a position of disadvantage) will be considered by the jury provided that there is evidence which is sufficient to raise that issue. That involves a careful evaluation of the evidence. That exercise was carried out by Judge Mowat [the trial judge in that case]. On the facts of this case her conclusion was entirely justified. The evidence did not raise any issue for the consideration of the jury."

Immediately thereafter the Lord Chief Justice indicated that the appeal in that case was dismissed.

16. We have also been referred helpfully by Mr Fidler for the appellant to the case of Gavin White 2010 EWCA Crim 1929, in which the following passage from Blackstone's Criminal Practice is approved (it is a passage which appears in the 2003 edition of the book, paragraph B3.27 at pages 310-311):

"Section 75 of the [Sexual Offences Act] 2003 lists circumstances in which the complainant is taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether the complainant consented. Also the accused is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

There must be some foundation in the evidence and it must not be merely speculative or fanciful for there to be sufficient evidence. However, it is vital to understand that if the trial judge decides (presumably at the close of the evidence) that there is sufficient evidence to raise an issue as to whether the complainant consented and/or the accused reasonably believed that the complainant was consenting, then the judge will put the issues to the jury in accordance with the key sections (ie 74 and 1(2)), and the section 75 route is barred. In the relatively rare cases where the judge decides that there is not sufficient evidence on one or both of the issues, a section 75 direction must be given on that issue."

Immediately before citing that passage, the learned Lord Justice indicated that it was the view of the court in that case that that passage correctly summarised the position.

17. Finally, we would mention the case of Zhang (sometimes cited as SZ) [2007] EWCA Crim 2018. That was a case in which the complainant alleged that she had been raped by the appellant while she slept, i.e. a case within section 75(2)(d) of the Act, giving rise to the same evidential presumption of lack of consent. The judge's direction to the jury, as here, was divided into several sections. First of all, he began by saying that the offence of rape involved three elements. At 5G of the transcript in that case, quoted in paragraph 8 of the judgment of the Court of Appeal, he had said this:

"Well now, what is it that is required then for the prosecution to prove? Well, those three things. First that there was intentional penetration of her vagina by the defendant, and that first requirement is not an issue in this case. The defendant says, 'Well, we had sex, I did penetrate her on two occasions.' So in each of these counts you need not take time over that question. The second is that she did not consent to that act. A person consents only if he or she agrees by choice and has the freedom and capacity to make that choice. I'll just repeat that, because it's important. A person consents only if he or she agrees by choice and has the freedom and capacity to make that choice. And the third requirement is that the defendant did not believe that she was consenting or any belief on his part that she was consenting was not a reasonable belief. So if you decide the defendant did believe or may have believed that she was consenting, and you are considering whether that belief was reasonable, you should take into account all the circumstances as they occurred at the time, including any steps the defendant took to ascertain whether she consented."

The judge in that case then came to what was called by counsel for the appellant in Zhang as 'the offending passage', which was in these terms (quoted in paragraph 9 of the Court of Appeal's judgment):

"If you are sure that this is so, that she was asleep or unconscious and that the defendant knew it, then by law you must find that Miss K did not consent to his act of penetration, or that the defendant did not reasonably believe that she consented to his act. Because in the circumstances where, if you so find, the complainant was asleep or otherwise unconscious at the time of the relevant act then Parliament has decreed, if the defendant knew that those circumstances existed, that the complainant is taken not to have consented to the relevant act, namely of sexual intercourse, unless sufficient evidence is adduced to raise an issue about whether she consented. And the defendant is taken not to have reasonably believed that she consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it."

18. In commenting on that passage in Zhang, Hallett LJ, giving the judgment of the court, said that the first three lines could have been more happily phrased. However, she said that those lines did not stand alone and that the whole paragraph must be read together. Counsel's submissions in Zhang was that the judge had raised the statutory evidential presumption into the equivalent of a conclusive presumption such as that arising in different circumstances under section 76 of the Act, as opposed to section 75. Mr Fidler's submission is, in essence, that that is what the learned judge did in the present case.
19. To counter this, the Crown in Zhang made the following submission, with which the court expressed its agreement at paragraph 10. The submission is this:

" Mr Hardy for the prosecution divided the issues for this court into two. First: is the determination of the question of whether a defendant has adduced sufficient evidence to displace the section 75 presumption a matter for the judge or the jury? Second: what is meant by the term 'sufficient' as qualifying evidence. He submitted that the task of determining whether there is sufficient evidence to displace this presumption falls to the trial judge. It is then for the defence to adduce sufficient evidence to raise the issue. It is an evidential burden. Put another way, provided the defendant himself gives or otherwise adduces evidence capable of rebutting the presumption it becomes a matter for the jury whether the Crown has discharged the burden upon it of disproving the defence to the criminal standard. The Crown maintain that the overall effect of the summing-up was to leave the jury in no doubt that actual consent on the part of the complainant or a reasonable belief in the complainant's consent on the part of the defendant were matters that the Crown had to disprove to the criminal standard. We agree."

Hallett LJ went on to accept in that case the Crown's submission that the judge gave full and fair directions on burden and standard of proof. He had correctly directed the jury on the elements of rape which the Crown had to prove, and had done so several times. He had left all the elements of rape to them. The judge had then summarised the evidence upon which the Crown relied as sufficient evidence, not only to raise an issue as to consent, but to prove that she had or may have done so. He had concluded this part of the summing-up as follows (quoted in paragraph 10, 7E of the transcript):

"So there is the issue between the parties. Firstly, did she consent? Secondly, did the defendant reasonably believe that she consented? Or rather, have the prosecution proved that he did not reasonably believe that she reasonably consented, because the burden is always on the prosecution to prove."

20. The submission of Mr Fidler in this case is that where one of the circumstances set out in section 75(2) arises, it is for the judge, at the close of the evidence, to determine whether there is sufficient evidence to raise an issue of consent. If there is, then a direction in accordance with section 75 is inappropriate, and the directions should be confined, without more, to a direction in the customary terms on the subject of consent and reasonable belief in consent. That, he submits, flows from the passage in Blackstone's to which we have already referred.
21. We would not wish to say in this case that that is a necessary course of action, provided it is made clear to the jury that the matter of consent, whether under the statutory presumption or otherwise, is one for them.
22. In our judgment, the question for us in the present case is whether, as stated by the court in Zhang, we quote again, "... the overall effect of the summing up was to leave the jury in no doubt that actual consent on the part of the complainant or a reasonable belief in the complainant's consent on the part of the defendant were matters that the Crown had to disprove to the criminal standard ... ".
23. In the present case, unlike in Zhang, the judge did not begin his summing-up with an explanation of the three elements of the offence of rape. He went straight to the evidential presumption in section 75 in the passages between page 8C and 9A which we have quoted. He did the same, in the passage picked up in the judgment of Hooper LJ in giving leave, at page 11D to E of the transcript. Nowhere did he give to the jury the type of concluding remark that the judge in Zhang had given, which we quote again:

"So there is the issue between the parties. Firstly, did she consent? Secondly, did the defendant reasonably believe that she consented? Or rather, have the prosecution proved that he did not reasonably believe that she reasonably consented, because the burden is always on the prosecution to prove."

We do not see that the passage at page 17 of this summing-up, short as it was and to which Hooper LJ alluded, has the same effect.

24. In our judgment, the directions given by the judge came perilously close to a direction to convict if they found that the facts gave rise to the evidential presumption, without leaving to the jury a consideration of the evidence upon which the defence raised the issue of consent.
25. The question arises, however, whether this conviction on count 1 is safe, notwithstanding that omission. In our judgment, it clearly is. The jury convicted this appellant unanimously of causing grievous bodily harm with intent upon this complainant, on the facts which also underlay count 1 of the indictment. The judge gave directions on that count which give rise to no criticism. In the light of that, it seems to us to be clear on the issue in this present case that the jury were satisfied, to the requisite standard, that the appellant had inflicted upon the complainant such violence as clearly negated any question of consent on her part or reasonable belief in her consent on his part. The evidence of the complainant on that issue, if believed (as clearly it was), was stark, with or without evidential presumptions. It was amply sufficient to compel a guilty verdict on count 1. For that reason, therefore, we conclude that, whatever deficiencies there may have been in the summing-up, the conviction is safe and we dismiss the appeal.