England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CROWN COURT AT PRESTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/03/2015

LORD JUSTICE BURNETT:

1. On 16 August 2012 the appellant was convicted after a trial at Preston Crown Court on two counts of rape and two counts of assault by penetration. He appeals against conviction with leave of the full court. His application for leave to appeal against sentence was adjourned to be heard at the same time. The indictment contained eight counts:

i) Count one alleged rape (anal) of the complainant (whom we shall call A) on 29 May 2010;

ii) Counts two and three alleged rape (vaginal and anal) of A on 13 June 2010;

iii) Counts four and five alleged assault by penetration using a sex toy (vagina and anus) on 2 June 2010;

iv) Counts six, seven and eight alleged sex with an adult relative. Count six covered a period of three weeks to 12 June 2010 and related to oral sex. Count seven covered the period 23 May to 28 May 2010 and related to vaginal sex. Count eight concerned vaginal sex on 29 May 2010.

2. The appellant had earlier pleaded guilty to the three counts of sex with an adult relative. The jury returned majority verdicts of 10 to 2 on the two counts of rape alleged to have occurred on 13 June 2010 and 11 to 1 on the two counts of assault by penetration alleged to have occurred on 2 June 2010. They were unable to reach a verdict on Count One. The appellant was sentenced to 10 years' imprisonment concurrent on each of the counts on which he was convicted. A sentence of nine weeks' imprisonment concurrent was imposed upon the three counts of familial sex. He was made the subject of a Sexual Offences Prevention Order ("SOPO") and a Restraining Order pursuant to section 5(1) of the Protection from Harassment Act 1997, both designed to protect A following the appellant's release from prison.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings to protect the identity of the complainant.
4. The circumstances in which the offences were committed were very unusual. The appellant was approaching his 52^nd birthday at the material time. When he was 17 he had fathered a child who was immediately given up for adoption. That child, who is the complainant in this case, made contact first with her natural mother and then with the appellant very shortly before the material events.
5. Her first contact with the appellant was on 9 May 2010. They quickly arranged to meet. On 21 May the appellant travelled from London to stay with A in her home where she lived with her husband and children. A was 34 years old at the time. A few days later, A returned with the appellant to London. Almost immediately an intense and enthusiastic consensual sexual relationship developed between the two. That sex included bondage. The prosecution case was that during a sexual relationship which was consensual for the most part, on the three dates identified in the indictment the five offences were committed by the appellant because in respect of each of those sexual acts, A did not consent.
6. Count 1, on which the jury could not agree, related to events on 29 May at the appellant's home. A consented to being tied up and to some sexual activity, but it was alleged that the appellant raped her by penetrating her anus with his penis without consent. Counts 2 and 3 related to events on 13 June at A's home when it was alleged that the appellant raped her both vaginally and anally.
7. Counts 4 and 5 related to events on 2 June at the appellant's home when it was alleged that without consent he inserted various items into A's vagina and anus.
8. The defence at trial was that all the sexual activity between the appellant and A was consensual. He said that there was no sex on 13 June. There had been consensual sex earlier that weekend. The chronology may be completed for the purposes of this appeal by noting that A's husband contacted the police on 13 July 2010. A herself was interviewed at length on 14 July. That interview was the recorded ABE interview played at the trial. On 20 July the appellant was arrested. At interview he produced a prepared statement denying any sexual contact with A. He alleged in that statement that A had indeed asked for sex on 23 May, but he had declined. He said that all the allegations were untrue. Having provided a prepared statement, he answered all subsequent questions at interview with "no comment".
9. In the course of a period of about a month, A and the appellant exchanged 1,600 or so text messages. There were also emails, MSN messages and phone calls, the content of which have not been preserved. Of the text messages about 1,000 followed the commencement of the sexual relationship. The last available text in a continuous sequence which has been preserved was exchanged on 8 June, before the events which made up counts 2 and 3 but after those alleged in counts 4 and 5. There are additional text messages for the period leading up to A's complaint to the police.
10. None of these exchanges was mentioned in the course of A's ABE interview. It was suggested at trial that the content of A's text messages was irreconcilable with her assertion that she had been raped or the subject of any other non-consensual sexual activity. It was suggested that her conduct immediately after the alleged unlawful activity was similarly irreconcilable with the events as she described them. In her ABE interview and in her evidence A said that she consented to sexual activity because she was going along with the appellant's wishes and was a reluctant participant.
11. Mr Cleeve, who appears for the appellant on the appeal, attended for the sentencing hearing and was subsequently instructed to consider the prospects for an appeal against conviction as well as sentence.

The Grounds of Appeal

12. The original grounds of appeal can be summarised as:

i) The judge should have stopped the trial at the close of the prosecution case;

ii) The consent direction given by the judge was inadequate;

iii) The review of evidence in the summing up was deficient because it did not go into the detail of the text messages sent by A to the defendant. It was fundamental to his case that they were inconsistent with any suggestion of non-consensual sexual activity. More generally there was insufficient emphasis upon the unreliability of A.

iv) This case called for a discretionary corroboration warning of the sort discussed in Makanjuola [1995] 2 Cr. App. R 469.

13. At the renewed application for leave to appeal against conviction the first and fourth of these grounds were both rejected by the full court. As to the first, there was plainly a case to answer. As to the second, no suggestion had been made to the judge at the time that a corroboration warning was necessary and it was impossible to suggest that the judge was wrong not to do so. In the course of the judgment given on that occasion, the court reformulated the grounds of appeal to identify the real potential issues:

"1. The learned judge failed adequately to bring together the applicant's case concerning the inherent weakness in the evidence given by the complainant by identifying, at least,

(i) That her account given in interview, especially as regards her acquiescence in a sexual relationship with the applicant, failed to mention the substance of the extensive text exchanges between them and painted a picture inconsistent with the text messages exchanged up to 8 June 2010;

(ii) That the text messages either side of the incidents which occurred on 29 May and 2 June were inconsistent with the suggestion of non-consensual sexual activity;

(iii) That the complainant may have been motivated to lie by a revulsion at her having engaged in an incestuous liaison, or at least realisation that it was wrong, and thus sought to minimise her responsibility;

(iv) That the complainant may have been motivated to lie by a desire to save her marriage and because of concerns relating to her own children,

together with a suitable warning about the quality of her evidence.

2. The learned judge failed to summarise for the jury the evidence which might support the proposition that even if the complainant did not consent to the acts in question, he might have had a reasonable belief that she had.

3. The direction on consent contained the sentence:

'Was the complainant freely consenting to sexual intercourse or was she submitting to a demand that she felt unable to resist.'

The complainant's case in the DVD interview was that she was a reluctant participant in all sexual activity, albeit in the light of the text exchanges the Crown accepted that most of the sexual activity was consensual. It is unclear how the complainant dealt with the texts in cross-examination. On the facts of this case the direction undermined the explanation elsewhere that reluctant acquiescence is nonetheless consent."

The Text Messages and the Factual Summing Up

14. There can be no doubt that the text messages passing between A and the appellant appear inconsistent with her evidence that there was non-consensual sexual activity on 29 May and 2 June. They also appear to be at odds with A's evidence that to the extent that she consented to sexual activity she was simply going along with the appellant's wishes and was a reluctant participant. As originally drafted, the grounds suggested that there was a duty on the judge to trawl through dozens (if not hundreds) of individual texts in the course of his summing up. It is not the function of a summing up to rehearse all the evidence traversed during the trial. In R v Lawrence [1982] A.C. 510 at 519 Lord Hailsham LC observed that a summing up was "seldom improved and may be considerably damaged by copious recitations" of the evidence noted by the judge during the trial. He referred to a "succinct and accurate summary of the issues of fact as to which a decision is required [and] a correct but concise summary of the evidence" as being what was required. The same point was made by Sir Brian Leveson P in his recent Review of Efficiency in Criminal Proceedings at paragraph 310:

"The Judge should remind the jury of the salient issues in the case and (save in the simplest of cases) the nature of the evidence relevant to each issue. This need be only in summary form to bring the detail back to the minds of the jury, including a balanced account of the issues raised by the defence. It is not necessary to recount all relevant evidence."

15. Mr Cleeve made clear in his oral submissions that it was not suggested on behalf of the appellant that a laborious trawl through the texts was called for. He submitted that what was needed were a few sentences explaining the issue and summary of the evidence, perhaps with one or two examples of the texts, particularly those either side of the two indictment dates. We agree with that approach, particularly as it should not be forgotten that A was cross-examined on a large number of those texts and the appellant's counsel had made a broad reference to them in the course of a commendably succinct closing speech. He makes the same submission in respect of the question whether the judge dealt sufficiently with the point about A's suggested reluctant involvement in the incestuous relationship and the suggested motivations for her lying.
16. The question is whether the Summing Up dealt with them as needed bearing those matters in mind.
17. Before turning to the Summing Up, we shall dwell a little upon the texts themselves. They were provided in their entirety to the jury in substantial schedules. The first sexual activity was on the night of 23/24 May 2010. Early the following morning A sent a text:

"Morning! :) I just wanted to tell you that last night was so beautiful to me, it wasn't dirty or wrong. We're just loving and enjoying each other totally. You're my everything, my world, soul mate and dad. Nothing will never come between us, i'd never let it. Sleep well daddy knowing that nothing is damaged or dirty or wrong. It's just that i totally love in loves every form xxx"

The texts that day continue in similar vein with A and the appellant exchanging sexualised suggestions. There was further sexual activity that night. The first text on the morning of 25 May was from the appellant waxing lyrically about the quality of the sex. A responded in terms suggesting that she enjoyed it and wanted more. The whole day was spent sending sexually charged texts to each other. So too was 26 May. The exchanges that day included one in which A said that the appellant was her "perfect daddy, lover and friend" whom she was looking forward to spending the rest of her life with. On the 28 May they exchanged texts which were discussing where they would set up home. They were not together that night. A text from A that evening said she wished they were together "tonight and every night" and another that her body "craved him". A's texts the next morning (29 May) opened with her saying "I want my daddy, in everyway xxx".

18. Later that day A expressed concern that people were getting to know about what was going on and saying it was wrong. She was worried that the appellant might "be convinced of it". Throughout the day both the appellant and A sent each other highly sexualised texts. They were planning to meet and keenly anticipating sex, including role playing. The last text exchange is at 18.51 shortly after which they met and returned to the appellant's home.
19. The first allegation of rape attached to events that night. The first text exchange the next morning (30 May) was:

"Watson: Has if met you :...

A: yeah x thank you for a wonderful night x i love you with all my heart

Watson: Thank you too baby it was very special! Daddy loves his little girl with all his heart. …"

The appellant's first text is a reference to whether A had been met by her husband. That evening A texted to say she hoped to wear the appellant's wedding ring. She said that her feelings were getting stronger for him and that she adored him. Then she wrote:

"I think our love is so great, so deep and so strong, it's not shallow, everyone is bothered about the sex, the sex is just a way to express our love and desire for each other, not the main thing like everyone worries about. I in no way feel abused or taken advantage of. I feel totally loved when I'm with you, holding your hand, cuddling, making love. I will not wake up and regret anything, anytime. I love you. I love your mind, body, soul, touch, humour so much more that just sex."

On 31 May, A shared many sexual fantasies with the appellant and he with her. It was Bank Holiday Monday. They were planning to meet the next Wednesday and were candidly discussing sexual role playing. A introduced the possibility of using a whip. At one point in the extended exchange she said that she enjoyed spanking and whipping and would like to be tied up. They wondered about wearing masks and filming their next encounter. A suggested that they "work their way down the list of erotica. It's a tough job but together we'll do it." Both expressed frustration at not being together.

20. The exchanges continued on 1 June. They included references to observations made by friends that what they were doing was wrong. A said she could not wait to be back in the appellant's arms the next day. They made arrangements to meet the following evening. Early in the morning of 2 June the text exchanges continued with sexual fantasies and expressions of longing. As the day wore on the fantasies became more and more extreme. They met just before 18.00.
21. The actions alleged in counts 4 and 5 occurred that night. Amongst the observations made by A the next day (3 June) in texts sent to the appellant were,

"I just wanted to tell you that I love you and need you, i've never needed anyone before but i do you. I want us to be as normal a couple as possible…"

There were others to like effect and an explicit reference to her urgently wanting sex with him and exchanging fantasies. A referred to their sexual encounter the previous night in approving and enthusiastic terms. The texts continued until both were in their respective beds that night. The text exchanges, which show that other media were being used for communication, were less frequent over the final days for which they were recovered, that is up to 8 June. They remained affectionate, spoke of a future together and contained no hint of a complaint about what had occurred on 2 June. It is apparent that A's husband was becoming increasingly uncomfortable with the situation, although it is unclear how much he knew at that stage.

22. Further texts were recovered from a different telephone commencing on 21 June and continuing until 13 July 2010. There are no texts surrounding the events of 13 June (counts 2 and 3, rape). There was some confusion in A's evidence about whether the events of which she complained took place on 12 or 13 June. Between 21 and 28 June affectionate texts continued. The sexual relationship was over. A sent the appellant photos of herself in her underwear on the last of those days. By the end of June the texts from A were more matter of fact. On 3 July she asked the appellant to stop sending texts. A's husband had moved out of the family home after learning of the incestuous affair. There was a gap before further texts were exchanged between 10 and 13 July. A said her mother did not want her to email the appellant. She added that she was removing him from her Facebook page. By 13 July she was making it clear that she wanted all contact to end.
23. Mr Cleeve rightly points out that the text messages paint a very different picture of the relationship between A and the appellant given in her ABE interview. The text messages contain no evidence of reluctance at the material times nor of controlling behaviour on the part of the appellant. On the contrary they appear to show A as an enthusiastic participant. That interview was conducted on 14 July 2010. It was suggested to A in cross examination that she was making the complaints because she had reconciled with her husband, had fallen out with her mother as a result of what has gone on and was worried about whether social service involvement with her children might result in her losing them. It was suggested that she was also concerned that she would be prosecuted for incest and was now revolted by what she had done. For these reasons, it was suggested to her that it was in her interest to minimise her responsibility for what had occurred.
24. The references to the text messages found in the Summing Up are as follows:

"In about 2008 [A] contacted [her mother] … and subsequently … the defendant, her natural father. The contact was initially by email and telephone calls and text message. And of course you see the text messages in Exhibit 5, the mobile phone records of which you have become very familiar over the course of this trial.

I'm not going to dwell on those with you and it's for you to decide the extent to which their content, their timing, their frequency and the explanations offered by both the defendant and [A] in their evidence to you assist you in assessing the issues of credibility and as to who was, as it were, making the running at any particular time, and in answering the questions necessary for determining whether the defendant is guilty or not guilty on the charges on which you are trying him (20B-F).

Whilst the text messages at exhibit 5 do not give the whole picture, remember in the admissions that you're told that there were telephone calls and other communications, such as MSN messaging and video calls, throughout the period of contact between them, and you do have a good picture of what they were saying to each other both before they met in mid-May …and right through the whole of this relationship and activity (21 E-G).

And, again, those text messages, of which you are very familiar, at exhibit 5 show the continuing contact between [A] and the defendant … during that period [i.e. before 29 May] (22G).

And again, you see the nature of the dialogue between them before and after [29 May], and it is the case that nowhere in the texts does [A] make any complaint or protest about any sexual activity or protest about any sexual activity which has occurred between them (23F).

She returned to [her home], and again you, I'm sure, will remind yourselves from the text records of the dialogue between them following the last meeting in London, and it is the case that there was no protest about what had occurred [in the period encompassing 2 June] (24C).

And she agreed that there were more explicit text messages in both directions after those events [i.e. after 13 June] (56G)."

25. The last of those references came at the end of the section of the Summing Up dealing with Counts 2 and 3. The texts were not referred to in the course of the judge's review of the evidence relating to counts 1, 4 and 5.
26. The appellant's case before the jury was that the sexual activity reflected in counts 1, 4 and 5 occurred but were consensual. He denied any sexual activity at all on the 12 or 13 June 2010 but in general terms averred that whatever sex there had been was with A's consent. The references at 23F and 24 C remind the jury that texts surrounding the events of 29 May and 2 June make no complaint about what had occurred. It is true that in general terms at 20 B-F the jury were reminded that the texts would help them in their task, but we consider that there is substance in Mr Cleeve's submission that the issues to which the texts went together with a short summary of their import are not found in these extracts from the summing up.
27. The texts surrounding the events of 29 May and 2 June are certainly devoid of any complaint from A; but the appellant's case was not just of their lack of complaint, but that their content was entirely inconsistent with anything non-consensual having occurred because of their positive approbation of what was going on. Further, between those two dates (and particularly as the eagerly anticipated encounter on 2 June approached) the parties worked themselves up in a frenzy of highly charged texts. Yet further, the exchanges and contact continued unabated after 2 June.
28. The appellant also relied upon the texts to support the contention that the underlying premise of A's account in interview, namely that she was a reluctant participant in the consensual sex from beginning to end, was unreliable, indeed untrue. The prosecution suggested that A was an insecure witness being manipulated by the appellant. When cross examined on the texts her explanation for their content was that it was not really her sending them. Rather, she was doing and saying what she thought the appellant wanted.
29. Whilst we recognise that the judge made the references to the texts which we have set out, we consider that at some stage the threads should have been drawn together and their relevance and importance to the issues we have identified spelt out, albeit in short summary form. Whether a handful or more of individual texts might be referred to would be a matter of style for an individual judge. We also conclude that the judge ought to have reminded the jury of the reasons advanced on behalf of the appellant why A might have lied in her ABE interview and in cross examination. That appears to have been overlooked. The only reference to one of those reasons, namely that A was concerned that her children might be taken into care, comes when dealing with the appellant's lies in his prepared statement. He had then denied all sexual contact with A and explained that A had spoken to him two days earlier (that is after the ABE interview) and said she was frightened of losing the children. The implication was that his lie was to protect them. In our judgment, in the context of an affair conducted indiscreetly, after which A was seeking to rebuild her old life, some reference to these factors was called for.
30. This was a difficult case and one on which the outcome was very far from obvious. At the heart of it was a clear dispute between A and the appellant. There were other matters upon which the prosecution relied. We have mentioned lies. Additionally, there were matters given in evidence by the appellant which he did not raise in interview. Directions were given in respect of both. The jury deliberated for about a day and a half. They returned to court with many questions including a desire to have a transcript of the ABE interview. They were unable to agree upon count one and their verdicts were by a majority otherwise. We have considered the totality of the evidence but cannot conclude that this conviction is safe in the face of these deficiencies revealed by the summing up.

Grounds 2 and 3: Reasonable Belief in Consent and the Direction on Consent

31. It is strictly unnecessary to consider the remaining grounds although we do so briefly.
32. The appellant's case was that all and any sexual activity with A was with her freely given consent. The judge gave an impeccable direction relating to reasonable belief in consent which he explained to the jury was something that they should consider if the prosecution had made them sure that A did not consent to any material act. It would be usual in the course of a summing up to draw together the threads of evidence that might support the contention that, even though there was no consent, the defendant concerned might reasonably have believed that there was. As regards the sexual activity on 2 June 2010, the content of the text exchanges during that day, which we have touched upon but not set out in detail, show A suggesting bondage and sadomasochism and perhaps hinting at expanding the boundaries of their sexual exploration. In the context of this ingredient of the offence we consider that some attempt in the Summing Up to identify the issue by reference to the evidence should have been made. This point reinforces our view that this conviction is unsafe.
33. We also consider that the sentence in the Summing Up referred to in the grounds upon which leave was given was apt to confuse, namely:

"Was the complainant freely consenting to sexual intercourse or was she submitting to a demand that she felt unable to resist."

Earlier in the Summing Up the judge had said to the jury that consent "can take many forms from willing enthusiasm to reluctant acquiescence". He had summarised the statutory definition of consent to the jury, as follows:

"A complainant consented if and only if she had the freedom and capacity to make the choice and she exercised that choice to agree to sexual intercourse."

These parts of the judge's direction followed closely upon the formula found in The Crown Court Bench Book at page 373. He then repeated that agreement could be reluctant.

34. Be that as it may, the sentence of which complaint was made was the last thing said about consent by the judge to the jury. They did not receive the directions in writing. The dichotomy set up by the judge (free consent/submitting to a demand that she felt unable to resist) did not accurately summarise what had gone before and does not reflect the law. It is possible for a person to submit to a demand which he or she feels unable to resist, but without lacking the capacity or freedom to make a choice. That is an example of reluctant consent.
35. When considering any direction of law given to a jury it is it necessary to consider the particular words complained of in their context; and to resist the temptation to isolate particular phrases and then subject them to over-refined analysis. An example of a sentence in a consent direction which, if taken in isolation, was problematic is found in Doyle [2010] EWCA Crim 119. But in its context there was no misdirection.
36. In the appellant's case the central issue for the jury was consent. The potential vice of the formulation complained of it is that it set up a clear choice for the jury which did not accurately reflect the law. Despite earlier parts of the summing up on consent being correct, we conclude that this was a material misdirection which provides further support for the conclusion that the conviction is unsafe.
37. The appeal against conviction in respect of counts 2 and 3 (rape) and 4 and 5 (assault by penetration) will be allowed.

Sentence

38. The sentence of 10 years imprisonment falls with the convictions. We shall make a few observations upon it.
39. The judge regarded the rape counts as falling within the middle category of the Guideline then in force suggesting a starting point of eight years. He referred to the fact that at some stage A sustained a black eye before she was raped. On the assault by penetration counts he referred to the fact that A was tied up, that she was caused pain and bled. He considered that the familial context was an aggravating factor and also regarded what happened as a deliberate and manipulative breach of trust of a father towards a daughter.
40. Mr Cleeve submitted that the judge should not have moved the rape offences from the third category of the Guideline (with a starting point of five years and range of three to eight) to the middle category. He also submitted that the judge made more of the breach of trust and familial relationship that was appropriate. In the round, he submitted that 10 years was too much.
41. On the evidence before him and in the light of the convictions, the judge was entitled to approach sentence on the basis that the appellant was the dominant player in the relationship and that A was confused and needy. In respect of one point that the judge found to be aggravating, namely that on 2 June A was tied up and wearing a tight collar, it is clear from the text exchanges that A made the running in suggesting bondage. The question is whether a total sentence of 10 years imprisonment was within the appropriate range. We consider that it was at the top of the range available to the judge. A shorter sentence would have been equally justified.
42. Mr Cleeve took a technical point against the SOPO, namely that it was designed to protect A and nobody else. But that is not impermissible.
43. In this case both a SOPO and Restraining Order were made in identical terms. They prohibit the appellant from contacting A, her husband or mother and from going to where she lives. There is no justification for both. In our judgment, the convictions for rape and assault by penetration having gone, the Restraining Order is the more appropriate mechanism to prevent unwanted contact. In those circumstances, we grant leave to appeal against sentence, quash the SOPO and amend the Restraining Order by deleting the references to conviction for rape and assault by penetration.