England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
H. H. Judge Pillay
T20137289

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/04/2015

Sir Brian Leveson P :

1. On 27 June 2014, in the Crown Court at Blackfriars before H. H. Judge Pillay and a jury, the appellant (who is now 52 years of age) was convicted (by a majority verdict) of two counts of sexual assault, contrary to section 3 of the Sexual Offences Act 2003 ("the 2003 Act"). The jury failed to reach agreement in relation to five counts of assault by penetration and three counts of sexual assault: these were ordered to lie on the file on the usual terms.
2. On 30 September 2014, on each count concurrently, Judge Pillay sentenced the appellant to a term of 9 months' imprisonment suspended for 2 years. In addition, a Sexual Offences Prevention Order was made under sections 104 and 106 of the 2003 Act until further order and he was required to comply with the notification provisions set out in Part 2 of the 2003 Act. Finally, he was ordered to pay £5000.00 towards the costs of the prosecution. He now appeals against conviction by leave of the single judge on the sole ground that the convictions recorded on two counts in relation to a complainant, C, were inconsistent with the jury's failure to agree in relation to the remaining eight counts and, in particular, the other four concerning C.
3. The appellant is a professor of perinatal neuroscience conducting research into brain injuries in children and into how adult brains regenerate after damage. He qualified as a medical doctor in Germany but he is not registered with the General Medical Council and is not licensed to practice as a doctor in this country. At the time of these events, he was a man of good character.
4. The case concerns the appellant's activities outside his professional life. Thus, various internet sites exist which provide women seeking sperm donations with introductions to men who are prepared to provide them. The appellant was one of these men and the three female complainants met him through an internet forum dedicated to the subject. The domestic arrangements made through the internet sites are legal, no charge is made and, in the case of the appellant, the donation of sperm was made by way of the woman injecting herself with a syringe or by the appellant inserting a speculum into her vagina and injecting his sperm into or at the entrance of the cervical channel.
5. The arrangements into which the appellant entered were necessarily informal and, whilst legal, were outside the normal regulatory framework imposed by the Human Fertilisation and Embryology Authority. The service that he provided included home visits to the women when necessary; in each of his dealings with the complainants he used a pseudonym. He claimed to have fathered some 58 children by these methods.
6. The Crown's case was that when the appellant met the three complainants in order to inseminate them, he took advantage of their desperation to have a baby, his anonymity and the informality of the arrangements by committing various types of sexual assault upon them. The only convictions returned by the jury concerned one complainant ('C') whose complaints were reflected in six counts, two of which concerned an attempt to inseminate her on 21 November 2012, the remaining four relating to her further visit on 27 November. No point is taken on the fact that no verdicts could be reached in relation to the other complainants and, as a result, we do not summarise the evidence relating to them.
7. Focussing on 27 November, count 4 (assault by penetration) alleged the insertion of fingers into C's vagina after production of the semen sample but before the semen was introduced. Count 5 (sexual assault) alleged rubbing of C's clitoris after the insertion of the speculum. Count 6 (sexual assault) alleged that the appellant had grabbed one of C's breasts after the introduction of the semen sample and count 7 (assault by penetration) alleged further insertion of fingers into C's vagina to stimulate her after the introduction of the semen sample. In relation to counts 4 and 5, the defence was that C consented to the alleged sexual activity, that it was engaged upon during the course of sexual stimulation and, more particularly, at a time when C was performing consensual oral sex upon the appellant. In relation to counts 6 and 7, it was denied the alleged activity took place. Convictions were returned on counts 5 and 6; the jury failed to agree in relation to the other counts.
8. It is necessary to examine the facts (including the history of the relationship between the appellant and C) and the allegations in relation to 21 November. C said that she was a member of a sperm donation forum called Tadpole Town and that the appellant contacted her in about March 2012. They first met on 5 September 2012 when she travelled from Cambridge to London by train and was met by the appellant at King's Cross station. She waited for him in a park whilst he went and prepared a donation. He came back and they went to his flat where he told her to take her jeans and underwear off and to lie on the sofa. The appellant had told her through emails that he was a GP and knew how to perform "ICI" which was intra-cervical insemination. This involved inserting a speculum into the vagina so that the cervix could be seen. A syringe was then used to put the sperm straight onto the cervix.
9. C lay down on the sofa and the appellant inserted the speculum into her vagina. He put his donation of sperm into the syringe and after taking the speculum out put an empty syringe in, acting like a plug. C lay there for an hour. The appellant sat in the chair and they talked. After about 20 minutes he took the syringe out. He started talking about "AI+" (Artificial Insemination Plus) which involved the recipient stimulating him to produce the sample. C was not particularly comfortable with that proposal but he kept saying it was more pleasurable for him and would be quicker. C said she would think about it. After about an hour she got up and got changed. The appellant walked her back to the tube station and she went home.
10. C did not become pregnant following their first encounter but they remained in contact by email and met again on 21 November 2012. In his e-mails the appellant kept asking for AI+ because it would be quicker and easier but C remained uncomfortable with the idea: it was not something she really wanted to do. The appellant met her at King's Cross station and they went straight to his flat. C went to use the bathroom. When she came out the appellant had laid cushions on the floor of the living room and he was taking his trousers off. He said he wanted AI+ because it would be quicker and he had not had time to produce a sample himself. He said that if she did not do it she would not get a donation. She wanted a donation of sperm so, in the circumstances, she agreed.
11. The appellant took his underwear off. C knelt beside him and performed what was described as AI+ orally. The donation was ready in about 30 seconds. Whilst she was doing it the appellant kept asking her to take her clothes off so he could touch her. She kept declining. She told him she did not mind doing AI+ because that was what he wanted but she said that she did not want anyone touching her. She refused to take her clothes off. He kept reaching out and rubbing her bottom, trying to put his hands down her waistband. She moved away a bit and he tried to put his hand up her top. She moved away and got up.
12. The appellant told her to take her bottoms off and get on the sofa. He went to get dressed and she lay down on the sofa ready for ICI. Before he inserted the speculum, he put his finger inside her: this was reflected in count 2. She thought he was feeling for where the speculum was going and she did not say anything. He inserted the speculum, drew the sperm up in the syringe, put the donation inside and put an empty syringe inside her to act as a plug.
13. The appellant then knelt beside her on the sofa and they were talking. He then reached over with his left hand, put his hand on her vagina and slid a couple of fingers inside at the top. He then moved them up and rubbed her clitoris. She told him to stop because that was not what she was there for. He kept telling her that having an orgasm would increase her chances of getting pregnant. He tried to do it three of four more times but stopped when she asked him to: this conduct was reflected in count 3. He kept asking to see her breasts because as a doctor he said he could tell if she had polycystic ovary syndrome ("PCOS") by looking at her breasts. He then said it was time for her to go and she made her own way to the tube station.
14. The third donation was only a week later because C kept getting positive ovulation tests. They agreed to meet on 27 November and in their emails they talked about AI+. C agreed because she knew it would be quicker and the appellant said that if she did not do it she would not get a donation. The appellant met her at King's Cross station and they went to his flat. The cushions were already on the floor. The appellant took his trousers off and asked C to take his underpants off. She declined and so he took them off himself and she knelt on the floor to perform the AI+. He asked her to take her clothes off so he could touch her and she said no. The donation took about 5 minutes. He kept trying to touch her, to touch her bottom and slide his hand down the back of her jeans but she moved away.
15. When the AI+ was finished, the appellant told her to take her bottoms off and get on the sofa. He went and got dressed then came back. Before he inserted the speculum he put his fingers inside her and kept moving them in and out of her vagina: this was count 4. C knew that it was not normal. She asked him please to stop. He did so, took the speculum and put it inside her in a way that she described was really rough. She yelled because it hurt. He got it in place then got the donation in the syringe and put it inside her. He did not put an empty syringe inside, but placed his hand on her stomach, ran his hand down her stomach and rested it on her vagina like before. He kept putting his fingers inside her and rubbed her clitoris. She told him to stop. He stopped but did it again about three more times: this was reflected in count 5 upon which he was convicted.
16. The appellant then sat up and grabbed her breasts and started squeezing them over the top of her t-shirt. He shoved one hand up her top and into her bra and grabbed her breasts: this led to count 6 on which he was also convicted. With the other hand he put his fingers inside her and moved them in and out: this was reflected in count 7. He looked at her and asked if she was enjoying it. She said no and told him to stop. She pushed him away, got up, left the flat and found her own way back to the station.
17. She said that she agreed to intra-cervical insemination because the appellant told her he was a doctor and that he knew what he was doing. She agreed that she would have had AI+ with him (that is to say, given him oral sex) even if he had not been a doctor because she felt pressured but wanted her donation of sperm. She was desperate to get pregnant and that was all that was on her mind.
18. When cross-examined, C said that the appellant effectively blackmailed her into doing AI+ and repeated that she felt pressurised because without it she would not get a donation. She could not, however, find any emails or texts where the appellant had demanded AI+ and her evidence was said to be contradicted by an e-mail produced by the appellant in which she said, prior to 21 November, that "I'd be happy to try AI+ if you wanted" and, prior to 27 November, "Are we doing AI+ again? I'm happy to do so if you want". C denied that either on 21 or 27 November she had consented to the appellant either inserting his fingers into her vagina or touching her clitoris to stimulate her whilst she was performing oral sex on him. She rejected the suggestions put to her that the appellant never inserted his finger into her vagina after having made the donation and that on no occasion did he ever touch her breasts over or under her shirt.
19. C said that she would never have consented to conception by sexual intercourse (referred to as "NI" on the various websites) although it was established that she had advertised over the internet for a donor stating "either AI or NI whichever the donor was happy with". She also denied ever having sexual intercourse with a donor, but when referred to an email where she had written "Okay, I met a lovely donor from the site and we had our first NI attempt this month…", she accepted that she had slept with the individual concerned but they had first met as friends.
20. When interviewed by the police, the appellant denied any offending and asserted that sexual contact that did occur took place with the consent of the complainant. He was asked about touching C's clitoris and observed:

"There is an opinion on orgasm may be increasing a chance. I don't remember if I actually stimulated her. I must say but there is an opinion that orgasm can increase [the chances of getting pregnant] but I can't say for sure that I stimulated or not."

He repeated that he did not remember in relation to C but said that it was "not normal". When asked about whether he had done so with others, he said "only with implicit consent". He denied putting two fingers into her vagina after the donation saying "this makes absolutely no sense".

21. We can deal shortly with the expert evidence called by both parties. It is only necessary to deal with three issues. As to inserting a finger into the vagina to determine the position of the cervix, Dr Elson (for the Crown) said that the purpose of using a speculum was to avoid the use of fingers and there was nothing to suggest that a digital examination was necessary before doing so. There would be no need to insert a finger post donation. When cross-examined, she denied that it could be necessary to insert a finger into the vagina in order to determine which way the cervix was pointing save, perhaps, when training medical students and then only with the patient's consent; Professor Grudzinska (for the appellant) said that if advised that seeing the cervix by speculum was difficult or painful, he would insert a single digit to do so.
22. Second, in relation to stimulation of the clitoris, Dr Elson made it clear that there was no evidence that such activity increased the chances of conception. Professor Grudzinska, on the other hand, said that orgasms in cows and rats boosted the chance of conception; when this was put to Dr Elson, she said that there was no evidence for such an effect in humans.
23. Third, Dr Elson said that there was no co-relationship between fertility and breast examination; Professor Grudzinska said that he would carry out breast examinations in certain circumstances, for example in young women if there was irregular menstruation or an absence of menstruation or a hormonal difficulty. When asked if one could tell if a woman was fertile by virtue of looking at her breasts, he said that if she was exposed to male hormones, one would look to exclude hairs or any other masculine feature.
24. The appellant did not give evidence at his trial, relying on his interviews with the police. On the other hand, evidence was called or read from some 15 (of over 50) women whose children he had fathered all of whom all spoke of the care and support he had given them. Mr Thomas Wilkins for the Crown pointed to the fact that some said that he had only produced a sample and left it to them to insert it; others spoke of his use of a syringe; yet others referred to digital penetration as part of his attempts at intra-cervical insemination using a speculum. None suggested that the appellant had touched their breasts, had sought to stimulate their clitoris or, indeed, penetrated them with a finger after (as opposed to before) the act of insemination.
25. The issues before the jury in relation to each of the counts concerning C were whether (a) the appellant had penetrated or assaulted C as she alleged, the penetration or assault being sexual in nature; (b) he had done so intentionally; (c) whether C had consented either expressly or by implication to the penetration or assault; and (d) whether the appellant reasonably believed that C had consented either expressly or by implication. As for counts 4 and 5, there was no issue but that the appellant had deliberately penetrated C's vagina and stimulated her clitoris but had done so with C's consent; as for counts 6 and 7, the appellant challenged the allegation that he had touched C's breasts or digitally penetrated her vagina after insertion of sperm.
26. Mr William Clegg Q.C. for the appellant contends that the convictions for stimulating C's clitoris and touching her breasts are inconsistent with the jury failing to agree on the remaining counts and failing to agree on similar allegations for 21 November, particularly having regard to the issues of credibility surrounding C's evidence. He points to the fact that in her ABE interview, C described the circumstances of both dates in similar terms and, in relation to counts 6 and 7 described the two incidents in the same sentence in these terms:

"[T]hen after a few minutes, he shoved one hand up, up my top and into my bra, and grabbed my breast, and with the other hand he put his fingers inside me (indicates) and moved them in and out and just looked at me and asked if I was enjoying that. Erm, I said no and that he had to stop, and I wanted to go, so I pushed him away. I got off the sofa, got my stuff ready … and just went out of his flat…"

27. Mr Wilkins argues that it is impossible to say verdicts are inconsistent when comparing counts where a jury convicted with counts where they had not returned any verdict at all. In any event, given the entirety of the evidence (including the expert evidence), the different outcomes on counts 4 and 7 and counts 5 and 6 are entirely justifiable and by no means unsafe.
28. The approach of the court to allegations of inconsistent verdicts is summarised in R v Dhillon [2011] 2 Cr App R 10, [2010] EWCA Crim 1577 in these terms (per Elias LJ at [33]):

"It is notoriously difficult successfully to challenge a jury's verdict on the grounds that inconsistent verdicts have been returned. We have been referred to a number of authorities which in our view establish the following principles:

1. The test for determining whether a conviction can stand is the statutory test whether the verdict is safe.

2. Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition.

3. Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency. It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed.

4. The burden of establishing that the verdict is unsafe lies on the appellant.

5. Each case turns on its own facts and no universal test can be formulated."

29. Furthermore, it is also clear that a verdict will not be illogical simply because credibility is in issue in circumstances when each count depends upon the uncorroborated account of a single complainant, and the jury convicts on one count but acquits on another, neither credibility nor reliability being a seamless robe (see R v G [1998] Crim LR 483 per Buxton LJ). Having made that point, Elias LJ goes on (in Dhillon at [41]):

"Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remain unsure about another; or they may consider that some incidents are exaggerated or fabricated but not all. There have been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed: e.g. R v Bell (unreported 15 May 1997) and R v VV [2004] EWCA Crim 355."

30. When various alleged offences are different facets or acts in the course of a single sexual encounter, however, the position might be different. Elias LJ went on:

"In these circumstances, if the jury is unsure of the complainant's evidence with respect to one count on the grounds that it may be unreliable or lacking credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters."

31. Such a conclusion is by no means inevitable. In R v Wilson [2011] EWCA Crim 1917, a count of false imprisonment, two counts of oral rape, and counts of anal rape and vaginal rape arose out of the same incident involving a single complainant; the jury convicted by majority of false imprisonment (11-1), and oral rape (10-2), acquitted of anal rape and the second oral rape and could not agree in relation to vaginal rape. Dealing with the contention that the verdicts were inconsistent, Moses LJ said (at [28]):

"In our judgment, the error in the submissions advanced on behalf of the appellant is in thinking that the acquittals demonstrate that the jury in relation to those counts on which they acquitted … did not believe the complainant. That simply does not follow. The question for the jury was whether they were sure the complainant was telling the truth. It was open to the jury to conclude … that whilst they did not disbelieve her, they were not prepared to say that they were sure, absent supporting evidence. It is perfectly true that the supporting evidence, particularly the forensic evidence, might have been regarded as supporting evidence for the other counts as well. But not necessarily so …"

32. In any event, the position is rendered even more complicated by the fact that, in this case, it was not that the jury acquitted, but rather that they failed to agree. That situation arose in R v Formhals [2014] 1 Cr App R 35, [2013] EWCA Crim 2624 which emphasised that although the failure to agree was self evidently not a verdict, "linguistics ought not to be allowed to triumph over justice" so that the principles relating to inconsistent verdicts should be applied by analogy where "it was simply logically inexplicable". Davies LJ made it clear (at [28]):

"It will be a rare case indeed where a failure to reach a verdict can be said to be logically inexplicable when contrasted with or set against a verdict or verdicts which have been reached. If such an argument is to be run, it will have to be run in cases which will call for the closest scrutiny by the court. Moreover, such an argument has to be run in circumstances where the principles applicable to inconsistent verdicts (in the true sense of the words) are - as has long been established - themselves very tightly prescribed: see, amongst other cases, Dhillon … as further amplified by the judgment of the court delivered by Jackson LJ in the case of Dobson [2011] EWCA Crim 1856. The bar is thus set high for the application of the principle of inconsistent verdicts. It can be set no less high, and perhaps is set higher, where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree."

33. Against that background, these verdicts fall to be considered. Mr Clegg sought to argue that they fell into two pairs. In counts 4 and 5, it was agreed that the appellant had done the physical acts alleged and that each would amount to the offence if done without consent and the defence was consent. This was how the case was left to the jury and no reasonable jury could distinguish between the two counts, both taking place immediately prior to the insemination procedure at a time when C was giving or had had just given the appellant oral sex. Either she consented, so runs the argument, or she did not.
34. In our judgment, that analysis does not address the totality of the evidence or the obligation on the Crown to prove both lack of consent and lack of reasonable belief in consent. There is no doubt that C consented to such steps as were important to maximise the prospects of her becoming pregnant and, furthermore, given the extremely intimate nature of the contact to which she was prepared to consent, the appellant was reasonably entitled to believe that she did consent to that which achieved her aim. In those circumstances, the jury were clearly entitled to reject the suggestion that stimulating the clitoris was for a purpose other than sexual gratification (preferring the evidence of Dr Elson to that of Professor Grudzinska relating to cows and rats but not replicated in humans).
35. Equally, the jury could conclude that Professor Grudzinska's evidence that he had inserted a finger into the vagina prior to using a speculum was significant. Even taking account of Dr Elson's more nuanced view that this would only be to train medical students, it is entirely understandable that it could create (at least for some members of a jury) a doubt whether in relation to the digital penetration prior to insemination, the appellant may reasonably have believed that he had C's consent on the basis that it was necessary to maximise the prospects of successfully identifying where the semen should be inserted.
36. As regards counts 6 and 7, the defence was that the appellant neither penetrated C's vagina a second time, nor touched her breasts. In these cases, Mr Clegg argued that everything depended on the resolution of the direct conflict of evidence between C and the appellant (based, in the latter case, on what he said in interview only). Once the jury could not agree in relation to the penetration count, to convict of sexual assault in respect of C's breasts had to reveal an inconsistent to the assessment of evidence and could not be sustained.
37. Notwithstanding that there was no suggested justification for the penetrating the vagina after the act of insemination, it is important to underline that the alleged conduct is identical to the admitted conduct prior to insemination. The appellant explained in interview that there was no justification for behaving in that way after insemination which is why he denied doing it. Quite apart from the possibility that the jury (or, more accurately, some members of the jury) could have concluded that she was mistaken as to the number of times that this happened, a number could equally plausibly have concluded that the fact that the admitted identical physical act might have been consensual beforehand could have impacted on their view of the same conduct subsequently.
38. That argument was not open in relation to the touching of C's breasts. Mr Wilkins postulates that calling expert evidence to justify the potential legitimacy of breast examination in assessing reproductive potential might have impacted on the credibility of the appellant's denial. Whether that is so or not, it was entirely open to the jury to believe C in relation to this allegation and to reject the evidence of the appellant.
39. Mr Clegg also argues that C's untruthful evidence in relation to the sending and receipt of e-mails prior to the third donation itself undermined her other evidence and, together with the fact that the jury did not agree in relation to 21 November along with the arguments open to him in relation to the two adverse verdicts, are sufficient to render the convictions unsafe. Relevant here are the observations of Moses LJ in relation to whether a complainant's evidence was believed and also the observations of Davis LJ in relation to the burden on the appellant and the high hurdle that has to be overcome especially where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree.
40. It is sufficient to conclude that the appellant has not overcome this hurdle in this appeal. The jury had all the facts covering all the allegations; no objection is made to the evidence, the procedure or the summing up. It was made clear that separate verdicts were required on each count in respect of each complainant and that different verdicts could be returned in respect of different counts depending on the findings of fact. In this case, in the light of all the evidence, to seek to challenge the two adverse verdicts and to contrast them with the counts on which no agreement was reached is to undermine that direction.
41. The jury was entitled to consider the evidence of C, the expert evidence, the contrast with what the character witnesses said happened to them, the appellant's interviews and the circumstances (including his decision not to give evidence) and reach their conclusions based upon all of it. It is not sufficient simply to look at the evidence of C to justify the allegation of inconsistency. This appeal is dismissed.