England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 12th February 2015

LORD JUSTICE ELIAS: On 23rd May 2014 in the Crown Court at Woolwich before His Honour Judge Saggerson the appellant was convicted on three counts, one of attempted rape, the second for a section 47 assault and the third for committing an act outraging public decency. He was sentenced to an extended sentence of 15 years, with a custodial term of 10 years and a 5 year extension period in relation to the attempted rape. He received sentences of 3 years concurrent for the section 47 assault and 1 year concurrent for the act of outraging public decency, so that the total sentence was an extended sentence of 15 years. He now appeals against conviction in relation to count 1 only by the leave of the single judge.

The background is as follows. In the early hours of 9th June 2013 the complainant, LB, had been travelling to her home in Lewisham on the night bus. She fell asleep and missed her stop and ended up in St Mary Cray, South East London. While she was asleep on the bus, a man sat on a seat in front of her. CCTV images from the bus showed him placing a mobile device, probably a telephone, between her legs, up her skirt. It was alleged that he took or intended to take photos of her genitals while she was asleep. That gave rise to the outraging public decency count.

She awoke and realised that she had missed her stop. The man befriended her and attempted to secure her trust by reassuring her that he would look after her and help her to get home. They got off the bus together and he took her to St Mary Cray bus station but it was closed. He then guided her towards a public park. It was reasonably light as it was around 6 am. They walked into a secluded area of the park. Thereafter her evidence, which in essence must have been accepted by the jury, was as follows. She said they walked past a man with a dog and were walking with their arms interlinked. They continued through the park when the man hit her in the face and she fell to the floor. She was unsure as to whether or not he had punched her or swung his arm to knock her down. She was knocked to the floor and was lying flat on her back. The man was on top of her or lying over her with one hand covering her mouth and nose. She struggled to breathe and felt faint. She was certain he was about to rape her as he was preventing her from screaming and had his hand on her thigh. She concentrated her efforts to trying to remove his hand from over her mouth and nose. She eventually managed to force his hand from her mouth and screamed "no" and "please" a few times. She then shouted "police" and the man ran away. After the man had fled, she realised that her tights had been torn. She did say, however, that she did not recall him doing anything to the lower half of her body. She confirmed she had not felt his hand inside her knickers nor had she seen his penis at any time, and she was satisfied that there had been no vaginal penetration.

The defendant denied that the attacker was him, although there was plenty of evidence to sustain the jury's conclusion that he was. He gave "no comment" interviews, he did not give any evidence before the jury, nor did he call any witnesses.

The ground of appeal relates to a half-time submission made by the defendant that there was insufficient evidence to leave the count of attempted rape to the jury. It was accepted that the alternative count on the indictment of sexual assault could properly be left to them.

For there to be an attempted rape there must be an intention to rape. The submission was that it would not be legitimate for the jury to infer, on the basis of the evidence adduced by the prosecution, that the defendant had the relevant intent. The only interference with the complainant, taken at its highest, was the hand on the thigh and possibly an attempt to rip her tights at the crotch. There was no evidence he was seeking to remove his clothes or seeking to release his penis. He said nothing at the time which might assist the jury in drawing an inference that he had the intent to rape.

Reliance was placed before the judge, as it has been before us, on the decision of this court in R v Ferriter [2012] EWCA Crim 2211. In that case the appellant appealed against his conviction for attempted rape. He had spent the evening drinking in a public house. At the end of the evening, when he was the only customer remaining in the pub, he confronted the barmaid behind the bar and a struggle ensued. He submitted, amongst other matters, that there was insufficient evidence to justify the inference that the intent was not merely to assault sexually but to commit the specific offence of rape.

The evidence about precisely what happened was summarised by the Vice-President (Hughes LJ, as then was) as follows at paragraph 3:

"He arrived instead behind the bar with her. He confronted her face to face and a struggle ensued. The two of them ended up on the floor. Part of the time he was on top of her on the floor and part of the time, because she struggled, they were more like side by side on the floor. She was successful in her struggles and eventually she broke free. She was able to run to another public house nearby and to get help. "

Her evidence was also was that he was trying to remove her trousers.

As in this case, counsel made a half-time submission that there was no case to answer because the evidence adduced was not capable of sustaining the relevant intent. The submission was rejected by the judge but on appeal to this court it was successful.

The Vice-President said this at paragraphs 11 and 12:

"The next question is however more difficult. It is whether there was material on which the jury could safely infer that the sexual intention which the defendant plainly had was to commit the specific offence of rape with all that that entails, rather than something unpleasant and sexual but not necessarily the particular kind of penetration which is rape.

12. We sympathise with the judge in leaving the entire case to the jury because it is not at all clear to us that the submission which we have just articulated was ever clearly made to the judge. But the answer of Mr Connor for the Crown to the simply expressed but penetrating question of my Lord, Popplewell J, is revealing. Was there, my Lord asked, any evidence or activity which was capable of justifying the conclusion which pointed to an intent to commit rape rather than, for example, an intent to molest her sexually under her clothes in some other way? Mr Connor's frank answer was that there was not, and he is right. In those circumstances we are, we think, driven to the conclusion that the conviction for attempted rape is unsafe."

Counsel relies heavily on those submissions and submits they apply equally to the evidence here.

His Honour Judge Saggerson distinguished Ferriter on the grounds that factually it was a very different case. He concluded that whilst there was no single feature of the evidence which taken in isolation signified or signalled the relevant intent, taking the evidence in the round and looking at the totality of the facts, there was evidence from which a jury could be sure there was an intention to rape. Indeed, he concluded that there was "an abundance of evidence", capable of sustaining that conclusion. He said that the volume and scale of the evidence was much greater in this case than in Ferriter.

We have to ask ourselves whether this judge, properly directing himself in accordance with the Galbraith principles, could properly conclude the case should go to the jury. In our judgment, he was fully entitled to reach that conclusion. Whether or not the evidence could be described as "abundant" is perhaps debatable, but certainly we think there was sufficient evidence to warrant this case being considered by the jury.

Like the judge, we think Ferriter is a very different case. The facts were much more equivocal of the intention of the drunken defendant there. Here we have the lead up to the incident which seems to us potentially important, as well as the ripping of tights, the grabbing of the thigh, the lying on top of the complainant and attempting to stop her from shouting.

We should add that we respectfully wonder how helpful the approach suggested in Ferriter is. Evidence of an intent to rape will necessarily constitute evidence of some lesser sexual offence. The relevant question is not whether there is any particularly piece of evidence which is consistent with the more serious offence of rape but not with a lesser sexual offence. The evidence will often be consistent with both offences. The only question for the judge in the Galbraith submission is whether the evidence taken at its highest is capable of sustaining a conviction for the offence charged. In answering that essentially straightforward question we think it is an unnecessary, unhelpful and a potentially confusing distraction to focus on distinctions which may be drawn between the evidence necessary to sustain an intent to rape and the evidence necessary to sustain some lesser sexual offence. For these reasons we would dismiss the appeal, notwithstanding the attractive and cogent submissions of counsel Mr Weetch.