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

1. LORD JUSTICE McCOMBE: On 13th February 2015 in the Crown Court at Canterbury, after a trial before Her Honour Judge Norton and a jury, the applicant was convicted of two offences of rape contrary to Sexual Offences Act 2003, section 1, and one offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861.
2. On 19th May 2015 he was sentenced in respect of those offences and for three further assault offences and one offence of handling stolen goods in respect of which he pleaded guilty on other occasions. For the offences mentioned above in respect of which he was convicted by the jury, he was sentenced by the judge to 11 years' imprisonment on each count of rape to be served concurrently and to two years' imprisonment also to be served concurrently for the assault, giving rise to a sentence of 11 years' imprisonment. In respect of the other offences to which he had pleaded guilty he received total sentences amounting to one year's imprisonment, consecutive to the other sentences that were imposed following the trial, giving rise to a total sentence of 12 years' imprisonment. He now renews his application for leave to appeal against conviction in respect of those offences of which the jury convicted him, following refusal of leave by the single judge. His application has been argued by Mr Winship in a very cogent and succinct manner for which we are grateful.
3. The short facts were these. The complainant on all four counts before the jury was a woman who we will refer to by the initials LD, a 24-year-old who was acquainted with the applicant through her friendship with his girlfriend, a lady called RM. It was not in dispute that both the complainant and the applicant were users of class A drugs and both had previous convictions.
4. The prosecution case was that on Thursday 7th August 2014 the complainant LD had met the applicant by chance outside a shop in Ashford. He had recently had an argument with RM, the circumstances of which gave rise to the offences of assault to which he had pleaded guilty and for which he was sentenced after the trial by the learned judge. He needed, said the Crown, somewhere to stay and it was agreed he would spend the night at the complainant's home address, a one-bedroomed flat. She said he was flirtatious towards her but she made it clear she was not interested and she went to bed expecting him to sleep on the sofa. She was awoken in the early hours to find him with his hand inside her pyjama shorts, digitally penetrating her vagina. That formed count 1 on the indictment in respect of which the applicant was acquitted. She protested, but he forcibly restrained her by straddling her, effectively pinning her arms down with his knees and attempting to force his penis into her mouth (count 3 on the indictment) before raping her vaginally (count 2). Throughout she was struggling and shouting. He subsequently abandoned intercourse and left the room. He returned a little while later, she said, and apologised. She told him to leave and he then forced her into the living room and onto a sofa where he pulled a dressing gown cord around her neck until she lost consciousness (count 4 on the indictment).
5. The following morning, as had previously been arranged, a neighbour arrived at her flat to give the complainant a lift to a contact centre where she was due to see her son. When the neighbour knocked at the door she rushed are out and made an immediate complaint of assault. She asked him to come in. The applicant was still present but after he left, as he did shortly after that, she told the neighbour that she had been raped. He took her to the contact centre. The allegations were repeated to staff there and the police became involved. She was examined medically and found to have numerous injuries which the Crown claimed were consistent with resistance to a gripping form of force.
6. The defence case on the other hand was that there was some consensual sexual activity. He denied the allegation that he was violent towards her or that he put a dressing gown cord around her neck. It was his case that the complainant was lying simply and that she was jealous because he was intending to return to his girlfriend (RM) and had threatened to leave the premises taking his drugs, in which they were mutually interested, with him.
7. He gave evidence that the chance meeting in Ashford was in fact on the Monday of that week, 4th August, and not the 7th as the Crown alleged. He had stayed at the flat at her invitation, from then on sleeping with her in her bed at her request. At that point there was no sexual contact but there was mutual drug use. On the Thursday, however, said the applicant, they took drugs and ended up in the bedroom where they had consensual sexual contact, including mutual oral sex. Vaginal intercourse he said was attempted but was unsuccessful. She then fell asleep. He said he went to another room and played on computer games. He woke her at 7 am to meet the appointment to go to the contact centre. She was angry at being awoken and a heated argument had pursued. He said he then packed his belongings while the neighbour was at the property. He then left and he denied that she had had any injuries at all when he left the premises.
8. The issue on the present application for leave to appeal arises out of a rejection by the learned judge, in a detailed ruling described on more than one occasion by Mr Winship as a "rigorous" one, of a defence application for leave to cross-examine the complainant in relation to two previous allegations of sexual misconduct made by her in February and March 2011 against a different man. The outcome of the application turned upon the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999 and upon section 100(1)(b) of the Criminal Justice Act 2003.
9. The circumstances of the earlier allegations were summarised by the learned judge between pages 5D and 7E of the transcript:

i. "It is accepted that the route to admissibility in respect of either allegation depends upon whether or not the cross-examination is about ... (computer glitch)... Any previous sexual behaviour or experience of LD. If so, then leave is required under section 41 of the Youth Justice & Criminal Evidence Act and the route to admissibility will depend upon the issue in the case and the purpose for which the evidence is sought to be deployed.

1. If, on the other hand, the defence can establish a proper evidential basis for asserting that the allegations were untrue, then the previous allegations are not caught by section 41 but will be evidence of non defendant's bad character and, therefore, the route to admissibility would depend upon the application of section 100(1)(b) of the CJA.

2. As previously stated, both previous allegations were made against a man called RD. He was a convicted sex offender who was many years older than LD but with whom it would appear she regularly stayed. That may or may not have been in connection with drugs. In a statement dated 13th March 2011, she set out the basis of their friendship and stated that he had become obsessed with her and frequently touched her in a sexual way.

3. On 20th February, according to details recorded on a CRIS dated the same day, LD flagged down a police car and alleged that she had been physically assaulted by [RD] and sexually assaulted by him the previous day. No statement at the time of writing had been located from LD in relation to these matters, but the record on the CRIS is to the effect that she alleged that she had been asleep on Mr. Davies' bed and woken up to find him standing over her with his hand inside her knickers, although she stated that he did not touch her vagina. She shouted at [RD] who denied that he was doing anything but she got up and left the premises. She stated that she did not report it at the time as she wanted to get away from him.

4. According to the details on the CRIS, [RD] was arrested and interviewed. He admitted common assault but denied sexual assault, claiming an alibi. That alibi was disproved. [RD] was re-interviewed and gave a different account of his movements. In the event, [RD] was cautioned for a common assault but no further action was taken on the sexual assault.

5. Having noted that LD had not returned calls to her mobile phone, a Detective Sergeant Rentle stated that he 'had considered the reliability of the IP's account and had noted that she had an antecedent history containing a large amount of dishonesty and is not of good character.

6. Taking all of the above into consideration, I am of the opinion that there is no likelihood of a successful prosecution in this case and will agree no further action.'

ii. I note at this point that albeit that this case is only four years ago, now it would be the CPS and not the police who would be responsible for charging decisions and I suspect that given current thinking, it is unlikely that the reasoning adopted by the police in deciding not to charge would feature in any similar decision making process in the future.

iii. Three weeks later, LD made a further allegation against [RD]. Again, she stated that he had touched her sexually whilst she was asleep, this time by fondling her breasts. Again, there was an argument between them following which she called the police. The defendant was arrested and admitted touching her breasts but said that he did so accidentally as he was waking her up.

1. As previously stated, the matter proceeded to trial but LD failed to attend and a not guilty verdict was directed. No information has been forthcoming as to why she did not attend on that occasion."

10. The argument before the judge and before us turns upon whether the proposed cross-examination of the complainant was to be "about any sexual behaviour with the complainant" within the meaning of section 41(1) of the 1999 Act. Alternatively if not about such behaviour should the questions have been permitted as evidence of bad character of a person other than a defendant, ie as evidence of false complaints by this complainant, pursuant to section 100 of the 2003 Act.
11. Applying principally the decision of this court in AM [2009] EWCA Crim 618 to the question of the applicability of section 41 of 1999 Act, the judge asked herself whether there was a proper evidential basis for the assertion that the previous complaints had been untrue, so that there was a possibility that the proposed questions were not about previous sexual behaviour with LD at all. If there was no proper evidential basis to suggest that the previous complaints were untrue, the question about sexual behaviour fell within the ambit of section 41. Questions would then only be permissible within the strict confines of that section. If there was such an evidential basis for the assertion of untruthfulness in making the earlier allegations the question was whether such evidence of potential bad character in making the allegations at all should be admitted under section 100 of the 2003 Act as important explanatory evidence, with substantial probative value, on an issue in the proceedings which is of substantial importance in the context of the case as a whole (We paraphrase section 100(1).)
12. In support of the submission that the proposed questioning did not fall within section 41 because there was a good evidential basis for asserting that the complaints were false, Mr Winship for the applicant relied before the judge upon the features recited by the judge at page 7F to H of the ruling in the following terms:

i. "... firstly, that LD does not make a complaint to the police until the following day after she had then been physically assaulted; secondly, the police were sceptical and decided not to charge; thirdly, that she has a drug addiction; fourthly, that she has a potential motive to lie in that the defendant's account in interview was that she wanted money from him for drugs. She said that he sought to control her or get her to do what he wanted by withholding her methadone."

13. Mr Winship also relied on certain inconsistencies in LD's account of the first earlier incident as they appeared in the CRIS reports maintained by the police, in comparison to a statement that she made in respect of the second of the two earlier incidents which also touched upon however the first such incident. Mr Winship further relied upon LD's failure to attend at court at the trial of the charge arising out of the second incident.
14. The judge stated the law as she saw it to apply to the section 41 question in a passage at page 9A to G of her ruling on 6 February 2015:

i. "in determining this issue and having read a number of authorities placed before me, the approach to be taken, it seems to me, is as follows: firstly, the defence must demonstrate a proper evidential basis for asserting that any previous allegation is untrue. A proper evidential basis is less than a strong factual foundation for concluding that the previous complaint was false but nevertheless, there must be some material to which the defence can point from which it could be properly concluded that the complaint was false.

1. Although in AM, it is expressed that asking whether there is a proper evidential basis for an assertion that a complaint is false requires the Judge to ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. It is also clear that the Judge should not speculate about what could materialise if the matter was to go before the jury or to allow questioning on the basis that answers might be given which would then provide the basis for falsity.

2. As was said in R. v. D [2009] EWCA Crim. 2137, the trial process cannot be used to investigate the truth or falsity of an allegation just because there is some material which could be used to try to persuade a jury that it is false.

3. Finally, in determining whether a proper evidential basis has been demonstrated, is a matter for the trial Judge exercising his or her judgment as opposed to discretion on a fact and case specific basis."

15. Mr Winship acknowledges that the learned judge's approach set out in that section and indeed in the whole of her ruling adopted the correct approach to the questions she had to ask. However he submits, and we will come to this, that she just reached the wrong conclusion having correctly directed herself as to principle.
16. On the submissions made to her the judge found that there was no proper evidential basis for asserting that the previous allegations were false. She said this in short. First, the delay, if such it was, was only one day. Anyway delay was by no means unusual in cases of this type. Secondly, the failure to prosecute an earlier complaint did not demonstrate falsity. Thirdly, the judge was unpersuaded as to the suggested inconsistencies in LD's earlier complaints. Fourthly, the fact of drug addiction and other bad character might touch upon credibility but did not give rise to a proper evidential basis of falsity. Otherwise all sexual complaints by persons of such a background would be approached on the basis that they were or might be false. On the other hand, countervailing those considerations, the judge found factors leading to credence of the allegations that had been made previously. First, [RD] was a convicted sex offender and had accepted a caution in respect of physical assault and in respect of a second allegation he accepted an accidental touching of the lady's breasts.
17. The judge also rejected an argument raised by Mr Winship as to the similarity of the allegations made against the other man and those made in this case, drawing an analogy with the rationale between the use of evidence of previous allegations of a similar kind to demonstrate propensity for the purposes of the rather different provisions of section 101(1)(d) of the 2003 Act. Such similarity with regard to allegations that did not result in a finding of guilt was, Mr Winship argued before the judge, hardly coincidental. The judge at page 12G to H of the transcript rejected the contention that the allegations were of striking similarity. She said at page 13E-G that the first two allegations involving touching the complainant while she was asleep was the "be all and end all of the incident". Here it was the Crown's case that it was the precursor of sustained sexual and physical attack, the only similarity was with regard to the initial touching in each case.
18. The judge's conclusion as a whole appears at a passage at page 13G onwards of the transcript:

i. "In those circumstances, I am not persuaded that there is sufficient evidence of similarity to render the evidence of the previous allegations admissible either under section 100(1)(b) if bad character in that it does not have substantial probative value, or under section 41(3)(a) if it is assumed that the previous allegations are, or may be, true and, therefore, previous sexual behaviour, in that I am not satisfied that refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case."

19. On the present application, Mr Winship maintains in a qualified form the arguments that he advanced unsuccessfully before the judge and in his written grounds before the single judge of this court. He argues that section 41 of the 1999 Act did not apply here and there was a proper evidential basis for asserting the falsity of the previous allegations made by the complainant. He also submits that the circumstances of those allegations did have a substantial probative value in the context of this case, if necessary for the purposes of section 100 of the 2003 Act. He went so far in his oral submissions to suggest that the admissibility of the evidence followed inexorably from any perceived potential falsity in the allegations made.
20. However, his submissions are, as we say, rather more qualified than they were before the judge. He no longer relies upon the inconsistency point in respect of the complainant's past allegations as advanced to the judge and repeated in paragraph 39 of the grounds of appeal. Further, he does not rely upon the potential falsity of the second allegation in the March in the light of the acceptance by RD of the touching of the breasts of the complainant (again paragraph 39). However, he does continue to rely on what he calls in his written grounds "the combined effect of the circumstances in the February matter." He argues that the judge could not properly put aside the circumstances of that matter without having heard the complainant's answers. He argues that the judge gave too much weight to the factors supporting the truth of the allegation made by LD, for example she relied on the bad character of RD without giving similar weight to assertions that could be classed upon LD's background. He submitted to us orally that the question which one must ask is may the jury's decision on any count have been different if they had known about the previous complaint in the course of the trial process? On that question submissions would have been addressed to the jury in the light of answers that had been given by the complainant to the questions put. Mr Winship argues in that context, that the proposed cross-examination would have been a properly targeted line of questioning that might have revealed a tendency to make false allegations. It would not have been a merely speculative inquiry as to the complainant's sexual history generally. He relies again on what he says to be the significance of the manner in which the incidents were said to have started, even if the second incident was said to have developed in an even more serious manner after the initial incident of touching. On the alternative hypothesis, that the matter fell to be considered under section 100 of the 2003 Act, Mr Winship argued that the previous incidents had an impact upon the probative value of the previous complaints and would have had substantial importance for the case as a whole.
21. In our judgment, carefully formulating in advance, as these submissions were, they do not give rise in fact to realistic grounds for considering that the convictions in this case were unsafe. We consider, as Mr Winship accepts, that the judge correctly directed herself as to the applicable law and conspicuously and carefully considered the features of the case that were relevant to the issues. In contrast to the case of AM, the evidential basis for alleging that the complaints were false were rather different. In AM the features tending to show falsity were rather starker than here -- see the summary of them at paragraph 2 5 of the judgment of the court given by Dyson LJ (as he then was).
22. We do not consider that the judge dismissed the relevant features urged upon her, as being of no consequence, or that this was a case in which the judge should have left the questioning to proceed to see what emerged from the complainant's answers as was found to be the position in AM. The judge applied the correct principles and found there was no proper evidential basis to allege falsity of the earlier allegations and found that the material did not justify permitting the cross-examination proposed on the alternative basis that the question fell to be answered under section 100 of the 2003 Act. In our judgment she was entitled to reach those conclusions, and indeed was right to do so, and to rule in her discretion as she did.
23. For those reasons, in spite of Mr Winship's attractive submissions, we refuse the renewed application.