England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 April 2016

LADY JUSTICE HALLETT:

Background

1. The learned editors of Blackstone's Criminal Practice 2016 Edition at B 3.1 describe the Sexual Offences Act 2003 as:

"... the most important overhaul of the law governing sexual offences since at least Victorian times. Some offences have been swept away, others have been redefined and many new ones have been created. Part 1 of the Act created over 50 offences. Some carry different sentences depending upon the precise factual ingredients proved, which in accordance with the decision in Courtie [1984] AC 463 means they actually create even more offences."

2. The offence with which we are concerned is one of three that appear under the heading "Preparatory Offences" in Part 1 of the Act. Section 61 provides for an offence where someone intentionally administers a substance with intent to engage in sexual activity. Section 62 provides for an offence where a person commits an offence with the intention of committing a sexual offence. Section 63 provides:

"(1) A person commits an offence if-

(a) he is a trespasser on any premises,

(b) he intends to commit a relevant sexual offence on the premises, and

(c) he knows that, or is reckless as to whether, he is a trespasser.

...

(3) A person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine ...

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years."

3. A relevant sexual offence is defined in accordance with section 62(2) to mean any offence under Part 1 (including an offence of aiding, abetting, counselling or procuring).
4. On 18th September 2015 in the Crown Court at Winchester, before Her Honour Judge Miller QC, the appellant was convicted of an offence of trespass with intent, contrary to section 63(1). He was sentenced to three-and-a-half years' imprisonment. He served his sentence and returned to his native Romania. The principal issues for this court are whether the prosecution was obliged to specify the sexual offence intended and whether the judge's directions to the jury were adequate. This appears to be the first time that an appellate court has been invited to consider the degree of particularity required in a count alleging an offence under section 63.

Facts

5. At about 7.30 am on 22nd January 2015, Richard and Linda Park were at home in their secluded farmhouse in Hampshire. Mrs Park was in bed feeding their new-born baby. Their other son, aged two-and-a-half, was also upstairs. Mr Park had put the rubbish bins out for collection and had left the back door unlocked on his return allowing the appellant access. He made his way upstairs. To her horror, Mrs Park looked up to see a naked man in her bedroom. She screamed. The appellant gestured at her to calm down and said "Don't make any noise." He touched his penis with one hand. It appeared to Mrs Park that he was trying to draw attention to it.
6. Mr Park heard the scream and rushed to the bedroom. His elder son right behind him. He saw his wife in the far corner of the room with the baby in her arms. The appellant was standing naked in their bedroom, partly facing his wife and partly facing him. When Mr Park arrived the appellant had one or both hands on his penis and was "tugging" on it. The penis was not erect but the appellant appeared to be trying to arouse himself. Mr Park took the appellant downstairs by the arm and threw him onto a sofa in the living room. The appellant continued to touch his own penis and despite Mr Park's obvious anger, asked him: "I suck you off?" The appellant attempted to get up and Mr Park punched him in the face. He then ejected the appellant from the house but, because it was so cold, allowed the appellant back in. Mr Park telephoned the police. During the call Mr Park noticed that the appellant inserted his finger into his anus. Mr Park could smell faeces. He believed the appellant was still trying to arouse himself. Mrs Park brought down some clothes and Mr Park was able to take the appellant back outside. The appellant told him he had had a message from God.
7. Most of the appellant's clothes, car keys, glasses case and mobile telephone were found in a pile not that far from the house, but his coat was in a separate position much closer to it, as if he had undressed and then kept on his coat for warmth. His car was found at a nearby service station on the M3 motorway.
8. In interview the appellant stated that he had left his car at a service station having decided to go for a walk. He had walked through a forest but branches got hooked on his clothes and felt heavy so he removed his clothes. He claimed he was already naked when he saw the Parks' home and that he only went into the garden because he had seen a child's ball caught in a fence and he wanted to put the ball back into a toy car. A man came out of the house and started shouting at him. The man accused him of "doing a hand-job in front of his wife and kids". The man punched him. He denied the accounts given by Richard and Linda Park in their witness statements. He agreed that until recently he had been a regular cannabis user.

Medical evidence

9. The psychiatric evidence came from two consultant forensic psychiatrists: Dr Ley called by the defence and Dr Feeney called by the prosecution. They provided a statement of areas of agreement and disagreement. The areas of agreement were that:

i. the appellant was fit to plead and stand trial;

ii. he was mentally unwell at the time of the alleged offence but not so unwell he was legally insane and not so unwell he could not form a specific intent for a sexual offence;

iii. it was likely he was suffering from a psychotic episode and held grandiose delusional beliefs;

iv. this episode, as well as reported previous psychotic episodes in Romania, occurred in the context of using cannabis;

v. it was likely cannabis contributed to his mental 'unwellness';

vi. his behaviour was disinhibited probably due to his elevated mood and as part of his disturbed mental state;

vii. his ability to form an intent was likely impaired at the time of the alleged offence due to his mental 'unwellness';

10. However, they disagreed on whether the appellant did in fact form the specific intent to commit a sexual offence. Dr Ley was of the view that the appellant did not intend to commit a sexual offence. Dr Feeney felt it was a matter for the court and the jury. Despite objections from Mr Rule for the defence, the judge refused to permit him to put before the jury Dr Ley's opinion on the basis this evidence went to "the ultimate issue" namely the issue the jury had to decide. She concluded the jury did not need expert evidence upon the issue.

Issues raised at the close of the Crown case

11. At the close of the Crown's case, and for the first time, Mr Rule complained about the lack of particularity in the indictment. The indictment read:

Statement of offence

Trespass with intent to commit a sexual offence, contrary to section 63(1) of the Sexual Offences Act 2003.

Particulars of offence

Adrian Pacurar on the 22nd day of January 2015 whilst trespassing on premises [address provided] and knowing that, or being reckless as to whether, he was a trespasser therein, intended to commit a relevant sexual offence on those premises.

12. Mr Rule attempted to persuade the judge that because the prosecution had failed to specify the sexual offence alleged, the count must be withdrawn from the jury. If the count remained as it was, it was his contention that the jury could not be sure what, if any sexual offence, the appellant intended and could not safely convict him of the offence charged. Further, he argued that the judge was obliged to direct the jury they would all have to be sure the appellant intended to commit the same offence, in respect of the same person and without their consent.
13. During the course of argument this morning Mr Bradbury explained that he provided the court below with more particulars of the prosecution case than may appear from the indictment. It was his case that the appellant intended to commit a sexual offence, at its most serious an offence of rape, at its least serious an offence of sexual assault, upon one of the occupiers of the Park household, adult or child. On that basis he maintained the defence required no further particulars and they would be well able to present their case.
14. The judge agreed. However, she noted that in the light of the way the Crown put their case, if the appellant was convicted she would be obliged to sentence on the basis most favourable to the appellant, namely that he intended the least serious sexual offence. Mr Bradbury did not demur.
15. Mr Rule raised a further issue with the trial judge, namely automatism. For the first time, he declared that he wished to advance a defence that the appellant was acting as an automaton. The judge ruled that a. there was no evidential basis for doing so (neither psychiatrist had mentioned the possibility) and b. the doctors were both of the opinion there was a causal link between the psychotic episode and the taking of cannabis and self-induced incapacity would not be a defence.

Grounds of Appeal

16. In extraordinarily lengthy written grounds of appeal running to 65 pages, Mr Rule advanced every possible argument on behalf of the appellant. At the court's invitation he reduced those submissions to a skeleton argument approximately 15 pages long for the purposes of today's hearing.

Ground 1

17. His continues to maintain that the prosecution was obliged to identify a specific intended sexual offence absent which he says the conviction is bad in law.
18. He reminded the court of the large number of offences contained in Part 1 of the Act and argued that the defence faced an impossible task defending them all. More particulars would have ensured a proper focus on what the Crown had to prove and potential defences.
19. Mr Rule suggested the proper course would have been to allege several counts, for example, dividing the allegation into the most serious sexual offence against an adult (rape) and the least serious offence against an adult (sexual assault) and the most serious sexual offence against a child (rape) and the least serious sexual offence against a child (sexual assault). In that way, he would have been better able to present any possible defences to each count and the judge would have had a proper basis for sentence. He complained that the lack of particulars meant the appellant has not had a fair trial and does not know the basis upon which the jury reached their verdicts. He placed considerable emphasis upon the fact that this was an inchoate offence for which the principal ingredient was the issue of intent. He took us to other offences of a similar nature so as to highlight the importance of a focus on the specific intent required.

Ground 2

20. Ground 2 was dependent on the success of ground 1. If the prosecution was obliged to provide further particulars, the judge's directions were insufficient. The judge's oral directions were supplemented by a written route to verdict prepared after consultation with both counsel.
21. It reads:

"In order to prove the offence of trespass with intent to commit a sexual offence the prosecution must make you sure of the following elements of the offence:

(1) That the defendant entered the house known as [address included] on the morning of 22nd January 2015.

(2) That the defendant was a trespasser when he entered the house. The defendant would be a trespasser if either

(a) he knew he had no permission to be in the premises, or

(b) he would be reckless as to whether he was a trespasser if he was aware that there is a risk that he was in a building in possession of another person who did not consent to his entry, and it was unreasonable in all the circumstances known to him to take that risk.

(3) That he intended to commit a sexual offence on the premises.

This could be any sexual offence at all on an adult or a child.

In respect of an adult a sexual offence is committed where the other person does not consent and the defendant does not reasonably believe that the person was consenting.

A sexual offence in respect of an adult can be from a non-consensual sexual touching at the lower end of the scale to vaginal and anal rape at the top.

A sexual offence in respect of a child can be from a sexual touching at the lower end of the scale to vaginal or anal rape at the top. A child cannot consent to any sexual offence."

22. Mr Rule accepted that these directions narrowed the prosecution case to an intent to commit an offence contrary to sections 1 to 3, in relation to an adult occupier of the house, and an offence contrary to sections 5 to 7 in relation to a child occupier of the house. Nonetheless he submitted the judge should have provided the jury with far fuller directions on the necessary mens rea. He claimed the effect of the judge's directions was that the jury were directed they could convict on the basis of sexualised behaviour or even a desire to have some form of sexual activity, neither of which would be a sexual offence within Part 1.

Ground 3

23. Under ground 3 Mr Rule claimed there was, in any event, insufficient evidence of an intent to commit a sexual offence and of the necessary mens rea for the trespass element of the offence. If, as the experts opined, the appellant was in a state of psychosis at the time he entered as a trespasser and suffered from delusional beliefs, he may not subjectively have appreciated he was entering as a trespasser. On that basis, the judge should have withdrawn the case from the jury.

Ground 4

24. Mr Rule insisted the judge was obliged to direct the jury that she could only accept a verdict from them upon which they were all agreed as to the specific offence intended. This would have provided what he described as a minimum safeguard for the appellant's rights to a fair trial.

Ground 5

25. The judge was wrong to withdraw the defence of automatism from the jury; Mr Rule maintained there was a sufficient evidential basis for it. The fact there may have been a causal link between the appellant's drug taking and the psychotic episode should not have deprived him of the defence because his drug taking most probably stemmed from his mental condition over which he had no control.

Ground 6

26. Mr Rule criticised the judge for refusing to allow him to elicit Dr Ley's opinion on the "ultimate issue" of intent. He submitted that this was something upon which the jury would be entitled to receive expert opinion and referred us to the decision in Stockwell (1993) 97 Cr.App.R 260 in which Lord Taylor, CJ, rejected what had been (if not a rule of law) a rule of practice that experts could not be asked "the ultimate issue". Lord Taylor said this at page 266:

"In our view an expert is called to give his opinion and he should be allowed to do so. It is, however, important that the judge should make clear to the jury that they are not bound by the expert's opinion, and that the issue is for them to decide."

Ground 7

27. Ground 7 consisted of an attack upon the judge's summing up of the defendant's case and of his account to the police to the jury. The judge failed to remind the jury of all the details of the interview and this was said to be significant in the context of this case, particularly in the light of the medical evidence and the fact that the appellant did not give evidence.

Ground 8

28. Mr Rule criticised the judge's directions on character. The appellant had no previous convictions and was therefore a man of good character. He may not have given evidence but he did rely upon some of the contents of his interview. In accordance with the judgment in Hunter and others [2015] 2 CrAppR 9, the appellant was entitled to both limbs of the character direction. The judge in fact only gave the propensity direction.

Ground 9

29. Finally, Mr Rule criticised prosecuting counsel Mr Bradbury, for what he called an 'ambush' in the way in which he questioned the experts.

Conclusions

30. There is very little assistance to be found on the degree of particularity required in a count alleging an offence under section 63 of the Act. The words of the section are clear: the intention to commit any offence within Part 1 will suffice but, as Mr Rule observed, that could be one of any number of offences. The words of the section do not, therefore provide the answer to the question posed for us. The learned editors of the two leading criminal textbooks Archbold and Blackstones Criminal Practice believe the prosecution is not required to specify the sexual offence intended in relation to section 62 (Blackstones 3.271 and Archbold 20-196) and one assumes therefore their opinion is the same for section 63. But the specimen counts they provide for section 63 differ. The editors of Blackstone, perhaps out of an abundance of caution, suggest the draftsman specify the relevant sexual offence, whereas the editors of Archbold do not.
31. We have therefore focussed upon basic principles of fairness and the Criminal Procedure Rule (2015) that governs the form and content of an Indictment. CPR 10.2 provides that an indictment must contain a statement of the offence that describes the offence in ordinary language and identifies any legislation that creates it and "such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant".
32. There will be many cases where the evidence points to a specific sexual offence intended and the Crown will be in a position to make clear what is alleged, by identifying the offence alleged in the Particulars of the Offence. However, there will be other cases, and this is one, where the prosecution alleges it is obvious from all the circumstances that the defendant intended to commit a sexual offence but it is impossible to specify precisely which one and upon whom, for example, the appellant intended a sexual assault on an adult occupier of the Park household. We have no doubt Parliament intended section 63 to cover both situations, provided, of course, any prosecution and trial could be fair.
33. In our judgment, this trial was undoubtedly fair. There were ample safeguards for the appellant. First the prosecution had to prove to the criminal standard that the ingredients of the offence were made out including that the appellant had the necessary mens rea for both the trespass and a sexual offence. Second, the judge ensured the appellant was provided with sufficient particulars of the offence alleged in the combination of the Particulars of the Offence and in the way the case was put to the jury. The appellant knew full well the case he had to meet: namely that he trespassed on the day specified, at the address specified intending to commit a sexual assault (at the very least) on one of four members of the Park family. Third, the judge's directions to the jury ensured the jury understood what the prosecution had to prove and the different considerations that applied if the intended victim was a child. Fourth, the judge sentenced the appellant on the basis most favourable to him.
34. Had the prosecution put their case on the basis the defendant intended to commit any of the very many offences created in Part 1 against any one of a number of people in the area, we could understand Mr Rule's concern rather more; but it did not. Effectively Mr Bradbury narrowed down the possible offences to sections 1 to 3 and sections 5 to 7 of the Act against specific individuals at an identified time and place. This is a similar approach to that adopted in R v Jones [2008] QB 460. The Particulars of the Offence were not in issue in Jones, but the offence charged was contrary to the sister offence in section 62 and no objection seems to have been taken by any of the parties or by the court to this wording:

"Ian Jones on or before 24th October 2004 criminally damaged property, namely train toilets, belonging to South Central Trains with intent to commit a sexual offence, namely an offence within sections 5 to 8 of the Sexual Offences Act 2003."

35. With the benefit of hindsight, Mr Bradbury conceded it might have been better to head off Mr Rule's argument by putting more details into the body of the Particulars, something he intends to do in the future. Other prosecutors may wish to do the same.
36. Further we reject the associated ground of appeal, that the judge should have directed the jury they had to agree on the sexual offence intended. As the single judge observed, the circumstances in which a Brown direction ([1984[ 79 Cr App R R 115 ) is required are now very limited and "it is not arguable they should extended to a case such as this". It would not matter that some of the jurors were satisfied the appellant intended to commit an assault on Mr Park and some that he intended to commit a more serious offence, provided they were all agreed that the ingredients of the offence were made out, namely that he trespassed with the intent to commit a relevant sexual offence.
37. The only other ground of appeal in which we saw any possible substance was the ground in relation to the directions on character. Technically, the appellant was entitled to a direction on credibility. However, no harm has been done. The interview at which the direction would have been directed contained proven and somewhat absurd lies. As the single judge observed:

"Assuming it is correct, as asserted by the prosecution, that it was not seriously contended on your behalf that the contents of the interview were true, ie that you did go into the house, then the omission of one of the parts of the good character direction can have had no effect on the safety of the verdict where you did not give evidence. In any event, on the facts of this case, it is difficult to see how that omission could have affected the safety of verdict."

38. We agree. Any direction to the jury as to credibility would have been counter-balanced with a strong direction on the many and highly significant lies told in interview. The net result would have been inevitably adverse to the appellant.
39. As for the other complaints, there is nothing in them. Mr Bradbury did not behave improperly. The judge was entitled to reach the view that, on the facts of this case, the jury should form their own conclusions on the "ultimate issue" of intent without the experts' opinions. The jury had ample material upon which they could form their own views as to the appellant's intent. They had the evidence of the Parks, the photographs, plans, CCTV footage of the appellant making his way to the house, the footage of the appellant on arrest and the appellant's own account.
40. Further, the judge was not obliged to leave the defence of automatism to the jury; there was no evidential basis for it. Finally, the judge fully and fairly directed the jury on the law, the issues and the evidence. It was not necessary for her to rehearse the full contents of the appellant's interview; the jury had a copy of that interview and took it with them into the jury room.
41. For all those reasons, albeit we understand why the single judge granted leave, we are satisfied that there is nothing unsafe in this appellant's conviction and the appeal against conviction is dismissed.