ON APPEAL FROM MOLD CROWN COURT
HIS HONOUR JUDGE ROGERS
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
MR JUSTICE MADDISON
|- and -
A Levitt QC and Iain Wicks (instructed by CPS) for the Crown
Hearing date: 15th February 2012
Crown Copyright ©
The Lord Chief Justice of England and Wales:
The appeal against sentence
" a complaint that an individual has been the victim of crime is not, and never has been, merely a private matter between the complainant and the alleged perpetrator of the crime. Every crime engages the community at large. There is a distinct public interest in the investigation and, if appropriate, the prosecution and conviction of those who have committed crimes. an unconvicted criminal is free to continue to commit crime and to add to the list of his victims, as well as to escape justice. Therefore, perverting the course of justice is not confined to making and pursuing false allegations or giving false evidence, which is always a very serious offence. It extends to the retraction of truthful allegations or the retraction of truthful evidence. ".
"The different between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it. Where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions reflect, and are often meant to reflect, manifestations of dominance, power and control over her. When these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable.
Of course it is better for a truthful complaint to be pursued, but if the proposal that it should be withdrawn is not accepted, leading to a positive retraction and admission that the original truthful complaint was untrue, and the complainant is then prosecuted to conviction, the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised."
The appeal against conviction
"the only reason why I said I'd lied and make it all up was because I had pressure put on me and I'd been advised by somebody that if I said I was lying, I wouldn't be sent to prison because I am a single mum and I've got 4 children. That's the reason why I said I was lying, because that's what I presumed would happen. I was told I would get a suspended sentence as they wouldn't put the kids in care".
"When Terry's sister came up to the house, whose idea, who first started sort of suggesting things to try and help with the situation, because as you admitted, you weren't sort of coping "
"Well I thought about it, and I mentioned it to her on that day, and I said that the only thing that was holding me back is the fact that I am scared that if they arrest me, the kids and that's when she said "don't worry about the kids" ".
"I don't know whether it was pressure or not. Put it this way, Tracey wasn't a regular visitor to the house and that visit was almost a bit out of the blue and I haven't spoken or haven't seen her since".
"We discussed it and our thinking was that if, because I had asked my solicitor how long do you think Terry would get inside and they said and I know Terry has told me this since, that his solicitor had said more or less, he's get about 10 years, and serve half. Then we discussed about me ringing up and saying that I was lying and like he'd said and Tracey said as well, that it would be a suspended sentence for just like 2 or 3 months. And then me sitting there stupidly thinking right, what's best for the kids, Daddy missing for 5 years or Mummy missing for 3 months and that's where them, yeh, ".
"So you say, "our thinking", "
"Sorry, me and Terry would sit down and discuss this and I remember saying to him "look, Mummy disappearing for 2 or 3 months is better than Daddy disappearing for 5 or 6 years". And yeh, he wasn't happy with the idea, but he didn't stop me."
"Sometimes he would be so upset that he appeared to be having a nervous breakdown. Thinking of it now it was all a bit over the top, but at the time it made me feel all the more sorry for him. Although he had done what he had done to me, by this time I was feeling responsible for all the upset and worries that he had about missing his children and being frightened of going to prison. The children were upset because they couldn't see their father and it was basically all my fault".
" I had tried to withdraw the complaint but that the Prosecution wouldn't drop the case. Tracey (her sister-in-law) asked quite calmly what would happen to me if I told the police it was all a pack of lies. I told her I wouldn't do it because it would mean me going to prison and leaving my children, but Tracey said they wouldn't put me in prison because I had 4 children She was present when I made the telephone call to (the police)"
"I can only say that when I was in that mental state I didn't think about what would happen to me but only if the case didn't proceed Terry wouldn't have to be in prison, my children would have their father back and I would have some help".
"All I can say now is that I would have said anything at that time to make it all go away. I know it makes me sound quite calculating but I was really saying whatever I could to produce the result I wanted".
Miss Levitt suggested that on the appellant's own present account, plainly she was under pressure, but the pressures were far removed from constituent elements of the defence of duress. We agree.
"I have done the one thing that you said not to do. I told you I would make it all go away and I will by doing what you said not to do. I want you home babe, we all miss you so much. I cry every night and every morning coz your not here".
The letter continues in affectionate terms.
Perverting the course of public justice
"Leaving aside for the moment the contentious issue of whether an abused woman, even one suffering from BWS, remains a reasonable person or not, the problem of the law is how to translate the medical language of "learned helplessness, passivity and paralysis" into the legal discourse of duress. It is not simply that there is automatic equivalence between "learned helplessness" and "overpowerment of will"; the two are not the same".
The writer analyses the decisions of this court in R v Emery  14 Cr. App. R(S) 394 and Bowen  2 Cr App R 157. She suggests that reference to characteristics such as post traumatic stress disorder or battered women syndrome "merely reinforces the inconsistency and reveals the incompleteness of the test which requires that the defendant shall have displayed "reasonable fortitude"".
"She became very upset and told Mr A's sister that she couldn't cope without Mr A and the family needed him back. She states that at this point they planned to say the allegations were a lie."
"the reason she told police that the allegations were untrue is because of the immense feelings of guilt and worry and also the pressure from Mr A and what he would do to her if she did not sort the problem out."
The decision to prosecute
" I would rule that absent dishonesty or mala fides or an exceptional circumstance the decision to consent to the prosecution of the applicants is not amenable to judicial review. Whilst the passing of the Human Rights Act marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal".
Lord Hobhouse was equally trenchant.
"If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings."
R (E) v DPP  1 Cr App R 6 is for the reasons set out in paragraph  wholly exceptional: if E's case had stood alone judicial review would not have provided an appropriate remedy.
"I respectfully agree that a judge has not and should not appear to have any responsibility for the institution of prosecutions, nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to invervene."
The court is not powerless. In an appropriate case an order for absolute or conditional discharge will convey its distinct message.