England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		The Courthouse 1 Oxford Row Leeds LS1 3BG
		9 April 2014

THE LORD CHIEF JUSTICE:

1. On 20 June 2012 the appellants Miah and Mohammed were both convicted of kidnapping at the Crown Court at Sheffield before His Honour Judge Lawler QC and a jury. Mohammed was also convicted of blackmail. Miah had earlier changed his plea to guilty to blackmail. For the offence of kidnapping Miah was subsequently sentenced to 15 years' imprisonment and Mohammed to eleven years' detention in a young offender institution. They had been tried with two others, Anjam Shaffique and Carlos Hetherington Treazure, both of whom were acquitted. Both Miah and Mohammed appeal against conviction and sentence. Mohammed's ground of appeal in relation to conviction is identical to Miah's. As Miah has been granted leave to appeal, we grant Mohammed leave also.
2. The issue on conviction relates to the admissibility of evidence in relation to the victim's reaction to the kidnapping, as evidenced by what was said in the course of the trial.

The agreed facts

3. It is possible to state the facts briefly. At about 6pm on 31 October 2011 a 14 year old boy "MT" (the son of "DT") was taken from an alleyway in the Darnall area of Sheffield. He was driven across Sheffield to a woodland area on the outskirts of the city, arriving there shortly before 7pm. He remained there until his release after midnight, on 1 November, six or seven hours later. He made his way to a nearby farm where he sought help.
4. During the course of the hours that he was in the woods a number of ransom calls were made to his father. Threats of serious violence were explicitly made to the father, and MT was made to speak to his father.

The different explanation of events

5. It was an unusual case. Two conflicting versions of what lay behind these events were put before the jury. It was the Crown's case that MT was kidnapped by men who were dressed in black and whose faces were concealed. One had a knife. MT was bundled into a car, a woollen hat was pulled over his face and he was driven to a remote woodland. During that period telephone calls were made to MT's father seeking the payment of up to £40,000 for the safe release for his son. In the result, MT was released, unharmed, only because it became clear that the police were involved and that the money was not forthcoming.
6. It was the Crown's case that Miah was the guiding force of the enterprise, that Mohammed and Treazure assisted him, and that Shaffique was there to provide transport. Miah had played the central role in the taking of MT and was present throughout. It was the Crown's case that Mohammed was present in the car and that, although he did not participate in the taking of MT, he knew what was going on and chose to take part in attempting to obtain the money and in guarding MT.
7. The defence case was completely different. There had been no kidnapping at all. Both Miah and Mohammed accepted their involvement in the taking of MT to the location we have described. However, they said that it was with MT's consent and involvement. What had happened was that MT and his friend "SJ" had recruited Miah and Mohammed to try to obtain money from MT's father. The plan had originally been to raid a cannabis farm that MT's father was said to own. But at the instigation of MT, the plan had changed to a staged kidnapping. It was accepted by his guilty plea that Miah had been engaged in blackmail because he accepted that demands had been made. Although Mohammed accepted that the demands had been made, he maintained that he was not guilty.
8. The issue, therefore, before the jury was whether the case was a straightforward kidnapping, as the Crown contended, with the object of extorting money; or whether, as the defence contended, the kidnapping was (or might have been) an elaborate sham.

The issue of admissibility

9. The sole issue that arises on this appeal is the status of the evidence of MT's reaction after the events in question. In the immediate aftermath of his escape from the woodland (on the Crown's case the kidnapping, on the defence case a staged event), evidence was adduced by the defence that in his Achieving Best Evidence interview which had taken place shortly thereafter MT had a calm demeanour. He appeared to be unaffected. That was consistent with the account which the appellants put forward that this was a staged event.
10. The Crown relied also upon what had happened during the kidnapping, and in particular the telephone calls which the jury heard, where they said that there was evidence of distress and anguish consistent entirely with a genuine kidnapping. The defence also relied upon the way in which MT behaved during the events and in their immediate aftermath.
11. In the course of her cross-examination MT's mother gave a long answer in which she said that for seven months after the kidnapping her son had changed and deteriorated. Prior to the kidnapping he had had "a life", but since the kidnapping he stayed in his room. He listened to music in his father's car and asked his parents to take him for a drive. If they suggested that he should get out of the car, he refused. He was, in effect, a completely changed person.
12. In his closing speech to the jury, counsel for the Crown relied upon that evidence as supportive of the prosecution case. In a summing-up that runs in the transcript to over 200 pages the trial judge dealt with that evidence in about nine lines. He said this:

"A word about distress. The Crown have relied upon [MT's mother] to support [MT's] account of the changes in him following these events. The Crown rely upon this to show he is telling the truth. You are, ladies and gentlemen, entitled to have regard to this evidence, but, obviously, take care before relying upon it.

The defence allegation here is that this is a set-up. You heard [counsel's] observations about [MT] this morning. You have to be sure that [MT's] evidence is truthful and, in relation to distress and the effect, you must be sure that that is genuine and it is not feigned for the benefit of his parents, or indeed to deceive you."

The previous authorities

13. It is submitted by Mr Moloney QC on behalf of both appellants that the judge was wrong in that direction; that he should have told the jury to ignore the evidence as it was of no assistance to them. Mr Moloney relies principally on R v Keast briefly reported at [1998] Crim LR 748. We have also been provided with the transcript of the judgment dated 5 November 1997. That case concerned charges of indecent assault and indecency on a girl who was aged between 9 and 11. There was evidence from the family of the girl which went two ways. Part of the evidence from the girl's father and stepmother was that she had unburdened herself and had completely changed. The complainant's teacher confirmed that when she attended class during the period of abuse she was very cowed. A very different picture was given by the complainant's mother who said that her disposition was completely the opposite. The judge allowed the evidence to be given at the trial. In this court it was said that such evidence should not have been adduced. It was said that evidence was admissible as to the complainant's reaction immediately after the events in question, but evidence of the complainant's withdrawal and cowed demeanour should not have been admitted because it was not probative of any issue in that case. The court broadly accepted that submission. It observed that evidence of distress of a complainant at the time of or shortly after the alleged offence had for many years been admitted to show that she had acted consistently, but her appearance and state of mind immediately or shortly after was consistent with the incident. We set out in full what the court went on to say as the case was only briefly reported:

"It is easy to see that evident signs of distress at the time or shortly after the alleged offence can be so regarded, but it is more difficult to distinguish less sudden and less conspicuous signs when offences have been committed over a long period and when, after the first offence, a reluctant victim wrestling with conflicting emotions has made no complaint; such distress may become less marked and give rise to different and less glaring symptoms. Moreover, children may exhibit the kind of symptoms exhibited by S [the young girl] in this case for many reasons, particularly where the family has broken up, so that it is far more difficult to attribute them to a particular cause such as sexual abuse.

...

We were told by [counsel for the Crown] that it was not unusual for evidence of demeanour to be given in cases involving sexual abuse. Evidence that the complainant showed no sign of distress and appeared perfectly happy is frequently relied upon by a defendant in such cases as suggesting that the offences have not occurred. We are also aware that when incidents of child abuse have come to light it is sometimes said that the warning signs apparent from the demeanour or behaviour of the victims ought to have been noticed, but we think it would be dangerous to infer from this that any generalised dejected demeanour in a child or young person could be regarded as indicative that sexual abuse has occurred. We do not think that such evidence is likely to assist a jury in concluding whether the complainant is telling the truth any more than evidence of an apparently happy disposition suggests that the complainant must be lying.

On general principles the prosecution could not in this or any case lead evidence to support the credibility of its witnesses. But a party has always been able to call evidence that an opponent's witness is not to be believed on his own, though in the event the party whose witness' credibility is impugned may call witnesses to restore a general reputation or credibility."

The court then referred to decisions in relation to that issue. It concluded as follows:

"To allow such evidence to be given, not merely because it is said that it could show consistency or inconsistency with the complainant's account, obscures the fact that unless there was some concrete basis for regarding the demeanour and states of mind described by the witness as confirming or disproving that sexual abuse has occurred, it cannot assist a jury in bringing their common sense to bear on who is telling the truth." (Emphasis added.)

14. That decision was followed and applied in the subsequent case of R v Venn [2003] EWCA Crim 236, to which it is unnecessary to refer. But it was commented on in R v Townsend [2003] EWCA Crim 3173. That was a case not of sexual abuse but of conspiracy to pervert the course of public justice in trying to persuade a complainant in a rape case to withdraw a charge. One of the grounds of appeal was that evidence was given of the reaction of the complainant immediately after being offered the inducement. In giving the judgment of the court Dyson LJ (as he then was) said:

"15. Our attention has been drawn to R v Keast [1998] Crim LR 748. There this court held: inter alia:

...

That decision has been the subject of cogent criticism by Professor Birch: see the commentary immediately following the summary of the case in the Crim LR. But that was a case concerning sexual offences, and the decision was an application of settled law in such cases where the need for corroboration was critical. We are not compelled by that authority to hold that the evidence as to the demeanour of the complainant in the present case was admissible only to show consistency with her account of the incident ..."

15. We have referred to those three decisions, and at length to the decision in Keast, because it is important to see the basis upon which the decision in Keast was made. In the present case it is clear that the judge was faced with evidence given by MT's mother, which had in no way been adduced by the Crown. He had to deal with that evidence.

Our conclusion

16. In general such evidence, even though it may technically be relevant, is unlikely to be of any material assistance to a jury for the reasons set out in Keast. Furthermore, there are good reasons why, in the overwhelming majority of cases, such evidence should not be adduced. As Mr Moloney QC has pointed out, it would lead to a number of collateral witnesses being called to explain the reaction of the victim (or alleged victim) in a case. That would not only give rise to the lengthening of trials by the calling of such evidence, but it would give rise to the difficulties of investigating the veracity of the evidence or otherwise.
17. This case, however, in our judgment fell within what was said in Keast (as we have set out above), namely that this was a case where there was some concrete basis for its relevance. As we have set out, the essence of the defence was that MT had: (1) recruited hardened criminals, (2) planned a raid on a cannabis farm, and (3) decided at short notice to bring about a fake kidnapping. He would then, it would seem to us if the evidence of his mother was taken into account, have had to fake for a considerable period of time a reaction to what it was said he had invented. It seems to us, therefore, that in this case there was, most unusually, a "concrete basis" as to why such evidence would be both relevant and helpful to the jury in deciding whether 14 year old MT had (or might have) invented the fake kidnapping and put both appellants up to the offence. That is a circumstance where the evidence of the mother's reaction was helpful to the jury, was relevant, and was therefore admissible.
18. We must stress that this is a most unusual case. As the court observed in Keast, it is highly unlikely that in most cases there would be any such "concrete basis" for admitting as relevant the reaction of an alleged complainant after an event, bearing in mind (1) the very different causes that can give rise to a reaction and (2) the difficulties that will arise if evidence has to be called as to a complainant's reaction.
19. Our judgment that this evidence is admissible, therefore, turns specifically on the basis we have set out. In the overwhelming majority of cases such evidence, although technically admissible or relevant, is likely to be of such tenuous relevance that it would not be right to admit it.

The safety of the conviction

20. We would add that the Crown's case here was very strong, particularly in the light of the evidence given by the co-defendant Shaffique during the course of the trial which showed that one major part of the evidence advanced by both appellants was untrue.
21. Even if, therefore, contrary to our conclusion, this was a case where the judge should not have given the direction that he did, we do not think it would have in any way affected the safety of the conviction. For those reasons, therefore, we dismiss the appeals against conviction.

The appeal against sentence

22. We turn, therefore, to the appeals against sentence. Before we do so it is necessary shortly to set out the fact that Miah faced another indictment relating to entirely different matters. It charged him on count 5 with an offence of Public Nuisance, the particulars of which were that between 15 October 2011 and 15 December 2011 he had made over 1,000 nuisance calls to taxi firms, the Northern General Hospital at Sheffield and others, and he had also made a number of bomb threats, all of which caused very considerable inconvenience and difficulties. One such call resulted in a coach being stopped in Birmingham and the passengers being detained and searched. For that offence the judge imposed a consecutive sentence of two years' imprisonment. No criticism is made, subject to the overall totality, of that particular sentence.
23. At the time of the offence of kidnapping Miah was aged 29. He had a number of convictions, two of which were particularly serious - one in 2001 and another in 2005 - when he had received terms of three years and five years nine months' imprisonment respectively for robbery.
24. Mohammed was significantly younger. He was aged 20 at the time of the offence. He had a number of convictions, but they were for much less serious offences; he had never received a custodial sentence.
25. The trial judge expressed his evaluation of the evidence. The kidnapping was pre-planned; the victim was a vulnerable 14 year old; force had been used together with a knife to effect the offence; the kidnapping had lasted six hours; although the victim had not been subjected to any deliberate physical mistreatment, he had been forced to plead with his father, he had been terrified during the course of the events, and there was undoubtedly a long-term effect upon him. The judge concluded that Miah played the leading role in the planning and execution of the offence. He imposed a sentence of 15 years' imprisonment for the kidnapping and a concurrent term of 11 years' imprisonment for the blackmail, in addition to the consecutive sentence for the offence of Public Nuisance to which we have referred, making a total of 17 years' imprisonment in all.
26. The judge concluded that Mohammed had been motivated by money, but had not been a leader. In those circumstances he imposed a sentence of 11 years' detention for the kidnapping and a sentence of ten years' detention for the offence of blackmail.
27. We have been referred to a number of authorities, most of which are set out in R v DS [2012] EWCA Crim 1470, [2013] 1 Cr App R(S) 64. The approach that the court should adopt is helpfully set out in R v Yu Hang and Others [2011] EWCA Crim 2089, [2012] 1 Cr App R(S) 91, where it was said that the court must consider, in accordance with its statutory obligations, the criminality and the harm caused. It is apparent from the authorities to which we have referred that one of the matters to which the court will have serious regard is the infliction of serious physical violence. That is a feature of many of the authorities cited in DS.
28. In this case we have regard to the fact that Miah was, as the judge found, the leader; that there was a severe mental impact upon the 14 year old MT, who was a vulnerable child; and the fact that Miah had a number of serious convictions. However - and this is important - no physical violence was inflicted upon MT during his period of kidnapping. It seems to us that the fact, in contradistinction to many of the cases to which we have referred, that no physical violence of the most dreadful kind as set out in those cases was inflicted, let alone any physical violence, is a factor we should take into account by reducing the sentence imposed for the offence of kidnapping from 15 years to 12 years' imprisonment. We reduce the sentence for blackmail accordingly in line with that to a term of nine years' imprisonment.
29. Mohammed was much younger. He did not play a leading role, and his antecedent criminality was much less serious. It seems to us that we should retain the distinction drawn by the trial judge. We quash the sentence of 11 years' detention imposed for the kidnapping and substitute for it a sentence of eight years' detention. We make a corresponding adjustment for the sentence for blackmail to one of eight years, making a total of eight years' detention in a young offender institution. To that extent and to that extent only do we allow these appeals.

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