England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 8 October 2014

1. LORD JUSTICE FULFORD: No matter relating to the victim of the offences that are the subject of this renewed application shall be included in any publication during her lifetime if it is likely to lead members of the public to identify her as the victim of these offences.
2. introduction
3. On 27th February 2013, at the Crown Court at Norwich, before His Honour Judge Coleman and a jury, the applicants were convicted of a variety of offences. On 26th April 2013 they were sentenced by the learned judge as follows. On count 1, conspiracy to traffic within the United Kingdom for sexual exploitation, contrary to section 1(1) of the Criminal Law Act 1977 and section 58 of the Sexual Offences Act 2003, Uddin received a sentence of four years' imprisonment and Ali five years' imprisonment. Uddin was sentenced to a concurrent term of two years' imprisonment on count 2, an offence of supplying a controlled drug of class B (cannabis) to another. For two offences of rape (counts 5 and 6), Uddin received concurrent sentences of 15 years' imprisonment. Ali on count 10, sexual assault, received a concurrent sentence of six months' imprisonment. It follows that Uddin's total sentence was 15 years' imprisonment and Ali's was five years' imprisonment.
4. They had two co-accused. Mohammed Sheikh was convicted on counts 1 and 2 (set out above) and on count 13, an offence of causing a child to engage in sexual activity. He was sentenced to a total of eight years', which included a concurrent sentence of four years' imprisonment on count 1. Abdul Hammed was acquitted by the jury on all the counts that he faced.
5. Both Ali and Uddin renew their applications for leave to appeal their convictions after refusal by the single judge. Ali applies additionally for leave to appeal his sentence and for a three day extension of time. Although Ali's solicitors have not provided a justification for the late filing of his renewed application, we are prepared to address the issue on its merits.
6. The issue
7. The sole substantive issue raised on this renewed application to appeal these convictions is whether the contradictions in the evidence of the victim and the extent to which it was at odds with other evidence in the case meant that the judge was obliged to withdraw the case from the jury. Uddin has drafted additional grounds of appeal without the assistance of counsel, which are without any merit.
8. The applicants and the victim
9. Uddin was 28 years of age at the time of these offences and lived in London. He was known by the nickname "Jay". He had previous convictions for the possession of drugs. Ali was aged 38 at the time. He was known as "Bruno" and he had previous cautions for possessing drugs. The victim, L, was aged 13 at the time of the offences. She lived with her father, with whom she had a poor relationship. She spent her weekends with an aunt who lived in Walthamstow in a flat that was directly above where Ali lived with his father. She travelled to that address by bus every Friday night and she then returned to her father's home on Sunday evenings. The victim, it was accepted, looked older than her years.
10. She was assessed before the trial by a forensic psychologist who concluded that she was suffering from psychological stress which had precipitated a kind of dissociative state in which she oscillated between indifference and hyperarousal. She exhibited clear signs of aggression and recklessness. She also had a complete understanding of the difference between telling the truth and telling lies. She did, however, demonstrate a willingness to lie in order to achieve short-term objectives, although she was not very good at lying, with the result that her accounts often contained inconsistencies. She appeared to have a significant impairment of intelligence and social functioning, although she did not have what has been described as a global learning difficulty.
11. The facts
12. On 3rd July 2012 Sheikh signed a tenancy agreement for a property at 20 Chevalier Street, Ipswich. The victim spent the weekend of 6th to 8th July 2012 at her aunt's home. On Sunday 8th July she communicated by Facebook and telephone with a friend, E, and indicated to her aunt that she was going to meet her. She left the flat that evening, but neither met up with E as arranged nor arrived home at her father's house. At around midnight the police were informed that she was missing.
13. On 10th July 2012 a fraud investigator attended 20 Chevalier Street. He spoke with Ali. The victim was at the address and the investigator spoke with her briefly and formed the impression that she was unaware of where she was. Later that day, officers attended at the address after receiving information that a girl was possibly being held against her will for the purposes of sexual exploitation. Sheikh, Uddin and Ali were at the address when the police attended. Sheikh informed the officers that the victim was upstairs. The victim told the police that she had slept with one of the men, but that it had been consensual. She said that she was 18 years old, that she was at the premises of her own free will, the men were her friends and she was fine. In consequence, the police left the address without removing her.
14. It was not until 12th July 2012 that the police made the connection between the girl with whom they had spoken and the missing victim. Officers attended again at the address that afternoon and found only Ali, although the victim's handbag was at the property. At 10.30 that evening, the police spotted the victim in the street with Ali, who was arrested. Sheikh and Uddin were also arrested that evening. Sheikh was in possession of cannabis. The address was searched and four packages containing cannabis and a number of used and unused condoms were recovered.
15. Given the application as regards conviction is based mainly on the alleged unreliability of the evidence given by the victim, it is necessary to consider her account and any other relevant evidence, and especially the main matters that are said to contradict her testimony.
16. The victim gave her first explanation as to what had occurred in the early hours of the morning of 13th July 2012 to a DC Whelan-Smith at Ipswich Police Station, during which she alleged that she had been transported by the defendants from London to Ipswich where she was raped by Uddin and Hammed. The following day she was medically examined by Dr Adeyemo and no notable injuries were found. She reported that she had drunk vodka and smoked cannabis whilst at the relevant address, but she tested negative for both alcohol and drugs. Semen with a DNA profile matching that of Sheikh was identified on multiple swabs taken from both the victim's vaginal and anal regions. The victim's DNA was found in Uddin's underpants, together with saliva that may or may not have been the source of the DNA.
17. An ABE interview was conducted with the victim on the same day. In the second part of that interview, she said that Ali had approached her whilst she was near a bus stop and asked her if she was all right. She said she was lost and he offered to help her find her way, but she declined. He asked her if she would go to a hotel with him but she said no. He said that he would call his friend and they would take her somewhere nice. They waited for at least an hour during which time Ali asked her if she had ever had sex. He also smoked some cannabis. Eventually a van arrived containing the other three defendants. Although the victim was scared, they eventually persuaded her to get into the van. Uddin then drove the vehicle to the address in Ipswich although Ali travelled separately by train. These events were reflected in count 1 on the indictment.
18. In the third part of the ABE interview, the victim said that she slept on a sofa at the house and awoke to find all the defendants sitting around where she was sleeping and they were staring at her. They gave her drugs. She was eventually left alone with Ali. However, after a further period of sleep, she awoke to find Uddin sitting next to her. She asked him to guess her age and having jokingly said 15, he said he thought she was 17 or 18. He asked her to have sex with him. She initially refused, but after he gave her some alcohol she agreed. They went to a room where he told her to take off her clothes. He ordered her to open her legs but she refused. He forced his legs between hers. He took his penis out of his jeans and he had vaginal sex with her (count 5). She told him it was really painful, and that she had never had sex before. She had seen a knife on the table and thought she had to comply because otherwise there would be consequences.
19. Later in the interview, she said that Ali had been present in the room whilst Uddin had sex with her. He was laughing and said that he was going to record what was happening. Ali kept touching and rubbing her leg whilst Uddin was on top of her (count 10).
20. L said that Uddin raped her a second time on the Monday. He asked her to put his penis into her mouth and she said she did not know how to do it. He said he would teach her and asked her to give him a "blow job". She said no because she had never done it before. However, he pulled his penis out of his trousers, told her to open her mouth and placed it in it (count 6). She found it disgusting and wanted to vomit. Ali and Hammed then came into the room.
21. Whilst these events were occurring, Sheikh was in London. She said that he had treated her well and was angry with the others when they had sex with her. She said that she slept in a bed with Sheikh and nothing had happened between them. Uddin, she said, gave her cannabis and he indicated that it would make her feel "horny" (count 2). As a result, things became confused.
22. On 14th July 2012 the victim attended a video identification parade during which she identified all four defendants. She said that Uddin was the person who had asked her to give him a blow job, as well as raping her vaginally and anally. She identified Ali as the person who had watched and touched her leg whilst she had sex with another man.
23. In a further interview in September 2012, she said that Ali had provided her with cannabis at the bus stop in London. She indicated she had got into the van because she was scared the men might kill her. She also claimed for the first time that she had been persuaded by Sheikh to sell drugs for him in Ipswich. She suggested she had been scared the defendants might shoot her. Sheikh had told her that he liked little girls. She maintained that she had compiled a diary whilst in the van and at the house. She already knew Ali because he was her aunt's neighbour. Friends of Sheikh had threatened her on Facebook. She indicated she was aware that Sheikh and Uddin carried knives. Hammed had taken her to another address where he had made her drink a drugged cup of tea. She concluded this interview by stating that all four men had raped her.
24. The victim provided the police with a document which she claimed was a handwritten duplicate of the diary she had kept whilst in Ipswich. In an entry dated 8th July, she stated:

i. "I want to run away but I can't ... he forced me to have sex with him and his friend gave me drugs ... I really am scared ... they kept pulling my hair."

25. An entry dated 9th July included the following text:

i. " ... I nicely asked if I could watch tv and Bruno said 'give up your pooms' [pussy] and I give up the TV ... Jay came along and slapped my face hard. And they both were laughing at me and constantly pulling my hair ... I was scared... They dragged me to the living room and said police are on the search for drugs if they come say we don't smoke, lie about your name and age. So when they came I did so ... "

26. A further entry dated 10th July referred to Ali phoning a man who the victim spoke to and he said he wanted to "fuck her hard". Hammed then forced her to have sex. The entry concluded:

i. "I have to go ... they are calling me. If I don't [go] they going to kill me."

27. In September the victim visited her aunt unannounced and told her that all four men in Ipswich had forced her to have sex with them.
28. Several months after the incident, the victim handed a document entitled "Things that happened" to a member of staff at the residential home at which she was living. It purported to detail various events that had occurred at 20 Chevalier Street.
29. As we have already observed, it is alleged on behalf of the applicants that there were a number of highly significant inconsistencies both within the victim's evidence and between the victim's evidence and other material in the case. It is unnecessary to set these out in their entirety. Put broadly, it is suggested her account changed and she contradicted herself notably on certain issues. It is said her allegations varied, sometimes markedly, between what she set out in her diary and the "things that happened" document, in what she said to DC Whelan-Smith, during the ABE interviews and as to what she said to Dr Adeyemo. Of particular note she gave a divergent account as to the things that were said when she first got into the van and the circumstances in which this occurred. She said to DC Whelan-Smith that Ali had driven the van, an event which on the cell site evidence seemed improbable. As to the sexual assaults on her, including the occasions when she was raped, she was inconsistent as to the order of events and who participated in or was present during these offences. As set out above, in her later account she claimed that all four defendants had raped her - an allegation she had not made when she was initially interviewed. Her suggestion that Ali was present when she woke up on Tuesday 10th July was inconsistent with the cell site evidence. She said that both Uddin and Ali gave her cannabis to smoke on the Wednesday and the Monday respectively. She may well have lied when she told staff at her children's home in October 2012 that she had received threatening text messages from men connected to the defendants, given that in her final interview with the police in January 2013, she confessed that she had sent these to herself but was unable to explain why she had done so. She informed Dr Adeyemo that no weapons had been used. In her third ABE interview she stated that Uddin had a knife in his room when he had sex with her. In her September interviews she stated that Sheikh and Uddin carried knives. No weapons were found at the house or in the defendants' possession.
30. There were problems with the copy of the diary. For instance, L recorded the journey to Ipswich and the subsequent assaults under an entry dated 8th July 2012, whereas it was agreed that she was still in London on that date and did not travel to Ipswich until 9th July. Despite telling the police that the original diary was lost, in evidence the victim repeatedly said that it was in her room at the care home. Staff were instructed to search for it but failed to find it. The original diary was never seen by either the defence or the prosecution.
31. In a diary entry of 9th July, L set out that she had locked herself in the bathroom but the defendants broke in and dragged her to the living room and told her to lie to the police which, when they came, she did. However, the police did not visit until 10th July, a day after the entry was apparently written.
32. In the diary the victim wrote that she had been made to wear clothes that "a slag would wear" and then pictures were taken. All the defendants' mobile telephones were interrogated and the only photograph found of the victim was one in which she was fully clothed and wearing items of clothing that her father identified as belonging to her.
33. There were difficulties with her evidence as regards the police visit on Tuesday 10th July. In her third ABE interview she said that the police visited the house twice on that date. On the first occasion she gave a false name. On the second occasion Uddin and Ali tried to hide and officers spoke to Sheikh and then to Uddin who said that he would return to London if the victim was pregnant. In the "things that happened" document, she wrote that she was not allowed to talk to her mum, dad or the police. However, the evidence of the officers was that the defendants were mostly talkative and relaxed, there was no conversation with Uddin about the victim being pregnant, that the officers spoke to the victim in the absence of the defendants and formed the view that she was not vulnerable, that she was there of her own free will and did not want to leave. This, it is observed, was on the day on which the appellant said she had been raped by Uddin.
34. As to the police visit on Thursday 12th July, in her account to DC Whelan-Smith, L said that Ali told her to hide in a cupboard, which she did. The police found her and she eventually provided her real name and the police said that they were not looking for her. In her third ABE interview she said that when the police arrived she was in the toilet vomiting, Hammed was hiding and Ali spoke to the police. She disagreed with the suggestion that the police had searched the house. The evidence of DS Brown was that he searched everywhere in the house that was large enough to hide someone, including the bathroom. He did not find the victim.
35. In her third ABE interview, the victim said that whilst she was in Ipswich she told her friend E exactly what happened and provided her with Sheikh's mobile telephone number that she was using. In her fourth ABE interview, she said that she met up with E to give her a CD or a DVD after she left her aunt's house on 8th July. In her fifth interview, she said that she had told E everything. She had known her for five years and sometimes stayed at her home. She had told E about the threats that she had received on Facebook, which E was investigating for her. The police located E who agreed she had arranged to meet the victim on 8th July, but L had failed to appear and as a result she had telephoned L's aunt. E indicated that she had been contacted by the victim on Facebook, but had never met up with her. She said the victim had not contacted her whilst she had been in Ipswich and that she had not at any stage been trying to help the victim investigate threats that had been made to her.
36. No DNA belonging to Uddin was found on the victim despite her claims on a number of occasions that he had not used a condom. The expert witness indicated that these findings were inconsistent with the suggestion that unprotected sex had occurred. Contrary to her claims of having smoked cannabis, a toxicology report revealed that no drugs were in her system and officers who saw her on 10th and 12th July formed the view that she was not under the influence of drugs or alcohol. In her July ABE interview, she stated that she had asked to be given alcohol. In her September ABE interviews she indicated that she had been forced to drink alcohol and that she had no choice in the matter.
37. In her first ABE interview she said that her sister was a prostitute, she had stayed with her in France and she had been raped whilst in France. The victim's father and aunt gave evidence that she had no family in France and she had only ever been to that country once to visit Disneyland in Paris.
38. In her first ABE interview, L said that she had a 19-year-old boyfriend named M with whom she had sex and who lived in her aunt's block of flats. The police investigated this allegation and found no one of that name living in the relevant flat. The only person of that name from the general area denied knowing the victim and in any event he lived elsewhere at the time that L suggested they had had sexual relations.
39. The care home manager, Helen Davies, gave evidence that the victim had a history of making false allegations of racial discrimination against members of staff which made them wary of her. Davies gave examples of what was said to be her dishonest behaviour and she indicated that L had a tendency to approach older men who were strangers to her. She was described as being cold, calculating and manipulative.
40. On one evening when the victim was in Norwich in order to give evidence at trial, she telephoned the police asking for help, stating that she had come to Norwich to meet a man called Nick who had failed to appear. At the police station she said that she had had sex with a 37-year-old man and the police instigated what are known as the rape investigation procedures. She told another officer that she had met a Somali man through Facebook and he had instructed her to go to Norwich in order to meet a man for the purposes of having sex in exchange for money. She told a yet further officer that she had had vaginal and oral sex with a 37-year-old man in Norwich before claiming that she had had sexual relations with between five or six men. She refused to undergo a medical examination. In a diary in her possession, which she claimed belonged to her sister, she made references to meeting a man for sex.
41. It was agreed by all parties in this case that the accounts provided to the police of travelling to Norwich in order to have sex with men were demonstrably untrue and that instead she had simply absconded from her hotel room where she was being supervised during the trial by social workers.
42. The victim refused to sit in court to watch four of the five ABE interviews. She declined to answer many of the questions put to her. She expressed her disinterest in the proceedings. She refused to refer to her interview transcripts. She claimed she could not read, and yet she produced a number of notes during the trial. She chewed gum and blew bubbles whilst giving evidence. She wrote graffiti on a screen. The judge described her as difficult, unhelpful, truculent, insolent and unresponsive. She claimed to lack a memory of some of the relevant events.
43. The judge gave the jury directions as to the inconsistencies in the victim's accounts. He directed them as to her evidence generally at some length. There is no complaint made as part of these applications about the accuracy or the adequacy of these directions. That is unsurprising in our view. The summing-up was extremely well constructed.
44. There was evidence relating to what both applicants said to a serving prisoner at HMP Norwich, Norman Straight, and the confessions they allegedly made to him. We return to that issue briefly later in this judgment.
45. The defence case
46. The defence case on count 1 was that no sexual offence occurred and that the victim was not trafficked. Uddin's case on count 2 was that he did not supply her with cannabis. The case on counts 5, 6 and 10 was that the applicants denied engaging in any sexual activity with the victim. It was suggested that the victim's account in interview was fabricated and the assertions of sexual misbehaviour were outright lies. It was argued that she was a witness whose evidence was incapable of belief. Neither of the applicants nor either of the other two defendants gave evidence.
47. The appeal
48. The submission by both applicants is that the evidence of the victim was not fit to be left to the jury. Her account of what had happened to her altered to a considerable extent between the various occasions when she described these events and parts of her account were markedly inconsistent with other prosecution evidence, with the consequence that her testimony overall was wholly lacking in credibility. Therefore it is submitted that the convictions are unsafe because of what is said to be the inherent unreliability of the victim's account and given what are described as the many inconsistencies, lies and false allegations that she made, such that the judge ought to have withdrawn the case from the jury.
49. Mr Cox who appears on behalf of Ali in support of this renewed application emphasises that L appeared to be wholly unconcerned about telling lies and fabricating evidence in a variety of difference ways. She indicated that she was happy to be with the defendants and their co-accused and she lied about her age. It is argued that she was inherently unreliable and that she was simply an extraordinary witness.
50. The section 31 proceedings
51. In refusing Uddin leave to appeal against conviction, the single judge gave the following reasons:

i. "I have considered the papers in your case and your grounds of appeal. You were convicted at trial of conspiracy to traffick [L], a thirteen year old girl, supplying cannabis to her, and two counts of vaginal and oral rape of her. Your only ground of appeal is that the learned judge was wrong to refuse your application at the end of the prosecution case that there was no case to answer on the basis of the inconsistencies and unreliability in her evidence. In a detailed lengthy and careful ruling the learned judge rejected that application and similar applications by your co-defendant. In my judgment he was right to do so. There was evidence that you and your co-defendants had taken her from London to Ipswich, and that you gave her cannabis and her evidence that you raped her was supported by scientific evidence and by the evidence of Norman Straight the prisoner responsible for your induction at Norwich prison with whom you joked about having sex including anal sex with the complainant. In other words despite the difficulties with her evidence, it was not so tenuous or unreliable that no jury properly directed could properly convict. The learned judge correctly concluded that the assessment of the credibility of [L] was a matter for the jury. In the circumstances, it is not arguable that your conviction was unsafe."

52. In refusing Ali leave to appeal conviction, the single judge gave the following similar reasons:

i. "I have considered the papers in your case and your grounds of appeal.

ii. You were convicted at trial of conspiracy to traffick [L], a thirteen year old girl and of one count of sexual assault. Your grounds of appeal against conviction seek to criticise the learned judge's ruling refusing your application that there was no case to answer at the end of the prosecution case, on the basis of inconsistencies and unreliability in the complainant's evidence. In a detailed lengthy and careful ruling the learned judge rejected your application and that of your co-defendants. In my judgment he was right to do so. There was evidence that you were the link between the complainant and the defendants having first met her and there was evidence that you made arrangements for the use of the van, as the judge said, that you were the architect. Furthermore, in cross-examination the complainant mentioned that you had touched her legs, the basis of the charge of sexual assault. In addition there was the evidence of Norman Straight the prisoner who conducted the induction of you and your co-defendants at Norwich prison who concluded from his discussions with the three of you that you had used the complainant like a piece of meat passing her about between you. In other words, despite the difficulties with her evidence, it was not so tenuous or unreliable that no jury properly directed could properly convict. The learned judge correctly concluded that the assessment of the credibility of the complainant was a matter for the jury. In the circumstances, it is not arguable that your conviction was unsafe."

53. discussion
54. The victims of offences of this kind are frequently damaged young people. They are nearly always wholly unused to giving evidence in court. They can be difficult, emotional, contradictory, aggressive and on some occasions wholly uncommunicative. Whether in any trial their evidence is so vitiated that it is unsafe to leave the case to the jury will be a matter of careful judicial assessment. However, the courts now have a far greater understanding than hitherto as to the difficulties that exist for vulnerable witnesses and the need for care in assessing whether inconsistent or varying accounts given on different occasions necessarily mean that the underlying allegation is untruthful or unreliable. These are often matters for juries rather than judges to assess because it will be vital for the fact finder to assess the reasons for the changes or the contradictions in the witness's evidence and whether they fatally undermine the prosecution's case as regards the counts on the indictment.
55. In R v H and M [2010] EWCA Crim 1926, Hughes LJ observed:

i. "It is fundamental to the system of jury trial which we operate in this country that it is the jury and not the judge which makes up its mind which evidence it accepts and which it does not. The judge has vital duties relating to the management of the case, the admissibility of evidence and rulings upon questions of law where they arise. But when it comes to the assessment of evidence the judge's role is confined, and it should be confined, to deciding, if there is dispute about it, whether the evidence if taken at its highest is evidence upon which a jury could properly convict - see R v Galbraith [1981] 73 Cr.App.R 124. If that question arises at the trial for decision, the judge's ruling on it is a matter of law and can accordingly be challenged on appeal, if it is contended that he was wrong. If that happens, the role of this court is as confined as that of the judge. Our task is to say whether or not the judge was wrong on the grounds that the evidence, taken at its highest, was such that no jury could properly be sure that the offence had been committed."

56. Those sentiments apply in this case. As the single judge pointed out, for each of the counts on which the applicants were convicted the victim had given definite evidence against him from which, in essence, she did not resile, albeit her account - in a more general sense - as to how the offences were committed varied. Whether or not that evidence was so unreliable that it could not properly lead to a guilty verdict because of the inconsistencies in, and the difficulties that otherwise existed with, her account was a question for the jury and not the judge to resolve.
57. Finally on this issue we note that Mr Cox referred to certain decisions of this court in which it had been alleged by the appellant's counsel that the victim's account was inherently unreliable (see R v CG [2005] EWCA Crim. 242 and R v S [2003] EWCA Crim. 696). However, those cases essentially turned on the evidence given in the respective trials and no points of general principle emerge from them that assist in the assessment of whether this victim's evidence should have been left for the jury's consideration. Cases will fall either side of the line in this context depending on their facts, and in our judgment there was a clear basis on which the jury could properly convict these applicants.
58. Uddin, in grounds of his own composition, seeks additionally to challenge his convictions on the basis that a prisoner by the name of Frost had not heard Uddin confess to the crimes of which he was convicted and he seeks to introduce evidence to this effect. This is essentially irrelevant. The issue in this context was whether Uddin had confessed to Norman Straight, as we have described shortly above.
59. Frost has also alleged that Straight bragged to a number of other prisoners that he might get his sentence reduced. However, this allegation is advanced in the most general of terms, without any indication as to when these statements were allegedly made, who else was present at the time and why none of those who it is suggested overheard what was said informed Uddin at the time as to what had occurred. Furthermore, it was made clear to the jury that Straight may benefit from cooperating with the authorities in this prosecution. Indeed, as the judge observed in the summing up, it was put to Straight whilst he was giving evidence that he was prepared to say anything "to get out of Norwich [prison]". It was suggested that he had received favourable treatment as a reward for giving evidence, namely he had been moved to HMP Bure where he was in a single cell and was therefore more comfortable.
60. The criteria for admitting fresh evidence in those circumstances is not met and most particularly this material would not afford any ground for allowing the proposed appeal.
61. These renewed applications for leave to appeal the applicants' convictions are therefore refused.
62. sentence
63. It is argued by Ali that the sentence was wrong in principle due to the disparity with the sentence of four years imposed on his co-accused on count 1. The distinction that the judge drew, namely that Ali had met the victim first and had sufficient time to ascertain her age, was, it is suggested, inappropriate given that any implied knowledge of the victim's age was acquired very shortly before the arrival of his co-accused and in any event it had been accepted by the Crown that L had the appearance of someone who was older than 13.
64. In passing sentence, the learned judge observed that Ali's family and the victim's aunt were known to each other and that the victim had seen him in the weeks leading up to these offences. It was clear Ali knew more about her than he was prepared to admit, both to her on the night and during the investigation into these offences and the trial. He spoke to her on the street for some time on the night and he realised she was on her own. Indeed in all probability he realised then that she was vulnerable. He clearly had one thing on his mind and it was not to give her assistance. As the judge noted, if he had had any decency or compassion he would have saved her from the exploitation and abuse that occurred. Instead, he made sexual comments about her and invited her to a hotel.
65. The judge acknowledged that there was a confusion as to what happened next because of a lack of clarity as to the movements of the van. However, it was clear that Ali was the reason for Uddin and Sheikh turning the van around to return to London. Ali called Sheikh to tell him he had "some pussy". The victim was persuaded to get into the van by way of promises from all of them. Uddin and Sheikh thereafter drove the victim to Ipswich, where Ali joined them the following day. L was taken to a house in a town she had never previously visited, in the company of men who were strangers in the middle of the night. They were all intent on sexually exploiting her for their own ends rather than providing her with a safe haven. Although direct force may not have been used to keep the victim at the house, she was unable to leave because she did not have her telephone and she did not know where she was. She was obliged and possibly prevailed upon to tell lies to the police. The address where she was sexually exploited had been recently acquired by Sheikh, seemingly for the purposes of dealing in drugs. In conclusion, the judge decided that Ali was the reason the van returned to London. He was the man who targeted the victim and he was in a very real sense the architect of her misfortune. He could have prevented what followed but he chose not to do so.
66. The judge acknowledged that Ali was to be treated as a man of previous good character and his actions were opportunistic. The judge decided that because the conspiracy was embarked upon as a result of his misconduct, a higher sentence would be imposed in his case.
67. In refusing leave to appeal the single judge observed:

i. "In relation to the sentence of 5 years imprisonment concurrent on the two counts of which you were convicted, the suggestion of disparity with the sentences imposed on your co-defendants on the trafficking offence (4 years) is misconceived. The learned judge was entitled to conclude that on the evidence it was you who first met her on the street alone and vulnerable in London and who decided to exploit her sexually. You told your co-defendant Sheikh that you had found him 'some pussy'. The learned judge was entitled to conclude that your offending was marginally more serious than that of your co-defendants."

68. With those observations, notwithstanding Mr Cox's powerful submissions, we wholly agree. There was a clear sustainable basis for passing a longer sentence on Ali on count 4, which the judge was at pains to explain. This renewed application is therefore refused.
69. The judge stated that both applicants would be liable for a victim surcharge. The Criminal Justice Act 2003 (Surcharge) (No2) Order 2007, SI 2007 No 1079, applies to offences committed between 1st April 2007 and 30th September 2012. A victim surcharge in those circumstances can only be made if the sentence imposed includes a fine (article 3(2)). In this case the offences were committed between 1st and 13th July 2012 and no fine was imposed. The order in relation to the surcharge for both applicants is quashed and we grant leave in both of their cases for that limited purpose only.