England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		6th April 2017

LORD JUSTICE HAMBLEN:

Introduction

1. On 26^th September 2016, in the Crown Court at Derby before Mr Recorder Rochford and a jury, the appellant was convicted of blackmail. On 30^th September 2016, she was sentenced by the same judge to four years and four months' imprisonment.
2. Her co-accused, Connor McKay, changed his plea to guilty to blackmail and was sentenced to two years and eight months' imprisonment.
3. The appellant appeals against conviction by leave of the single judge.

The Outline Facts

4. The complainant was a married, middle-aged accountant. In March 2015, he made contact with the appellant who worked as an escort after finding her details on an adult website. A sum was agreed and he arranged to meet her at her house, but on arrival at the property he swiftly discovered that the co-accused, McKay, was also present. He promptly left. Shortly thereafter, he returned to the property in order to retrieve a Filofax that he had inadvertently left behind. This was returned to him, however, only upon the payment of money.
5. Over the following months, further payments were made by the complainant to the appellant and McKay.
6. On 21^st April 2016, the complainant reported to the police that he was being blackmailed by the appellant and McKay, the latter of whom subsequently pleaded guilty to the offence.
7. On 23^rd April 2016, the appellant and McKay were arrested together in a room at the International Hotel in Derby.
8. Saved to his phone, the complainant had three mobile phone numbers that he had attributed to the appellant. One number, ending 187, was used to contact him in February 2016; and a number ending 750 was used to contact him from 6^th April 2016. He had a further six numbers that he had attributed to McKay. There was a pattern whereby the complainant would be contacted by any one of these numbers and thereafter make a payment into the appellant's account. McKay's phone was seized and messages between that phone and that of the complainant were retrieved. The messages were, on the face of it, sent either expressly or impliedly by the appellant. They included statements that the sender would phone his home landline number and attend his house. The phone had also been used to conduct searches for details about the complainant and about blackmail.
9. Bank records showed that between May 2015 and April 2016 a total of £72,000 was paid into the appellant's bank account from the complainant. A further £2,250 was paid from the complainant into the account of McKay in April 2016. The sums were paid out by the complainant every month. They varied between £3,000 and £8,700 per month.
10. On 28^th July 2016, the complainant attended a video identification procedure and positively identified the appellant as the person who had offered him sexual services and had thereafter blackmailed him.
11. Whilst in custody, the applicant wrote a letter to McKay 's family in the following terms:

"Even though we are both to blame for the situation we are in, like I said, if I can take it all and get him out I will."

12. Both the appellant and her neighbours had made a number of complaints to the police about the behaviour of McKay, both before and during the period covered by the indictment.
13. In interview, the appellant largely made no comment to the questions put to her. She did not agree that she had made any comment in the police car, as alleged by DC Atkinson. She suggested that McKay had nothing to do with the matter.
14. The prosecution case was that the appellant made demands for money with menaces, namely the threat of exposing the complainant for using her services as an escort. It was not simply a case of her standing by and doing nothing to intervene whilst McKay carried out the offence.
15. The defence case was that, although the appellant took money from the complainant, she did not make any threats to expose him and she did not make any demands for money. Any threats were made by McKay. Everything she did was upon the instruction of McKay who was violent and abusive towards her.
16. The essential issue for the jury was whether the appellant herself, rather than merely McKay, had made demands with menaces.

The Evidence at Trial

17. The complainant said that his sexual relationship with his wife was "not the best" and therefore in March 2015 he searched for and found an escort on the internet. That person was the appellant. He phoned and arranged to meet her for the agreed fee of £120 per hour. He attended at an address provided, he paid the money, but before he had even taken off his jacket he realised that there was a man present in the house. This realisation unsettled him and so he left the property. Discovering that he had inadvertently left behind his Filofax, he knocked on the door but it was not answered. He telephoned the woman and he was re-admitted to the property. The appellant was there with the man. The man had opened the Filofax and taken out some things. He said, "You can have it back, but what are you going to give me?" The appellant was "screaming a bit" and encouraging him. He said that he could give the man £300. The man said that that was not enough and so they went together to both a cashpoint and a bank. He withdrew money and handed over a total of £1500. In return, he received back his cards and Filofax.
18. During the following two days, he received a text message from the phone number that he believed belonged to the appellant. The text stated that her partner had beaten her up and had destroyed her clothes and other items. The sender said that they had a photo of the complainant's driving licence with his home address and his business card. The sender wanted money to replace the damaged items. He believed the sum to be £3,000. The sender said that they would get in touch with him if he did not agree to the demand. He agreed to meet the appellant at a McDonald's restaurant one lunchtime. He attended and she arrived, seemingly alone. He handed over to her what he believed to be £3,000 in cash.
19. A week later, he received a further text message demanding money, accompanied by threats of exposure. The sender stated that she wanted to leave Derby. The texts were sent in the name of Sasha. The complainant met the appellant at Derby train station. In the hope that if he helped her move from Derby she would then leave him alone, he handed over more money. In return, she signed a letter stating that there had been no sexual contact between them.
20. There had been voice contact with the appellant over the phone before each of those two meetings in which he said that she had threatened to expose him if he did not pay. He also bought her a smartphone for £500 at her request. There were other occasions on which he gave her money. On one occasion he met her at a hospital, where he believed her child was being treated. Whilst refusing to give her more money, he offered to help her sort out her finances.
21. She phoned the complainant five or six times at his workplace. Although he wanted her to stop pestering him, he also wanted to help her out, but she declined any offers of help.
22. As well as text contact with a person he believed to be the appellant, he also had text contact with McKay. At one point the appellant and McKay appeared to be sharing a phone. Around early April 2016, he received a text from McKay stating that they must speak. He phoned him. McKay said that he was worried about the appellant and drugs, and he asked for money. The complainant refused to give him any. In response, McKay texted him to say that he would come and see him at his place of work. This he did, and so the complainant gave him more money. The appellant had told him not to speak with McKay. She said that she would speak with McKay so that he would not trouble the complainant any further.
23. On 21^st April 2016 the complainant had arranged to meet the appellant at a new address in order to sort out her finances. He drove to the location, but received a text from her to say that she could not make the appointment. The address happened to be near a police station. He had a "eureka moment" and decided that he would report the matter to the police.
24. He subsequently receive a voice message from the appellant stating that he police were after her and querying whether it had anything to do with him. He also received a call from a woman purporting to be "Jenny", asking to speak with his wife, but he believed that he recognised the voice as that of the appellant.
25. In cross-examination, the complainant agreed that there were inconsistencies between his witness statements and the account he had given at trial. He said that he had been under a lot of stress and pressure at the police station and was embarrassed. He could not be sure that the appellant had ever made a face-to-face threat to expose him. He denied that he had engaged in any rough sexual contact with the appellant which had frightened her and which had caused him to agree to pay money. He initially denied that the appellant had sent him a photograph of herself, but then conceded that she had. He denied having sympathy for the appellant or of being fond of her and hoping for a sexual relationship. He was not physically frightened of McKay. He was never physically threatened by either of them.
26. DC Atkinson (the officer in the case), who was involved in the appellant's arrest, recorded the appellant as saying the following whilst being transported in the police car: "He wanted some kind of rape role-playing"; "Wait until you find out what he did to me. He's been paying me to keep quiet"; "I've had about £120,000".
27. The appellant gave evidence that she had been in a relationship with McKay since July 2014. It was initially a good relationship, but he then started to hit her and he became violent after taking cocaine. He also threatened to tell her family and Social Services that she was working as an escort. They separated on a number of occasions for short spells. She made a number of complaints to the police about McKay's behaviour, although she did not follow them up as she was scared because he had threatened her.
28. She worked as an escort and advertised her services on an adult website. McKay took money from her. One day she was contacted by the complainant who said that he wanted to engage in role-play. As a result of what he wanted, a price of £220 (not £120) was agreed. She was pregnant at the time. Because of the nature of his request, she provided him with only her post code so that she could take a look at him outside before he came to the house. McKay was also in the house at the time. She told him to come in if she screamed.
29. The complainant arrived in her road and, having satisfied herself that he appeared all right, she let him in. Almost immediately after paying her, he was rough with her. He grabbed her breasts and tried to grab her genitalia. She screamed. McKay came into the room and the complainant left the house, leaving behind his Filofax.
30. Shortly after he returned to retrieve the Filofax, she told McKay to give it to him, but instead he demanded first £300 and then £1,000 for the return of the item. Although she was standing behind him at the time, she played no part in it and did not make any request for payment herself. The two men left the house together, and McKay returned alone.
31. She and McKay briefly split up for three days. When they got back together again, he informed her that he and his brother had obtained £5,000 from the complainant. Sometime later he told her that he had texted the complainant and arranged for her to meet with him at McDonald's to get more money from him. She had not texted him herself. She was unaware that he had received unpleasant messages.
32. At the meeting, the complainant gave her £5,000 in an envelope. She took the money from him because she was pregnant and did not want to keep working. He was in good humour and very flirtatious towards her. She told him that McKay had been violent towards her and had smashed up the house. She also told him that he had smashed her phone, which led to an unsolicited offer from the complainant to buy her a new phone.
33. In respect of their next meeting, McKay had told her that he had contacted the complainant and that she was to meet him and collect money. She told him that she did not want to, but he reassured her that the complainant was all right. He did not threaten her at that stage, but she knew that if she refused he would turn nasty. She met with the complainant at a Frankie and Benny's restaurant, where he gave her the phone and £3,000 in cash, which she passed on to McKay.
34. In respect of the meeting at Derby station, McKay again said that she had to go and that she knew her life would be hell if she did not. On that occasion the complainant asked to come to her house. When she said that it was not possible because of her daughter, he offered to book a hotel room. He gave her £5,000 in cash, which McKay again took from her.
35. At the meeting at the hospital she told him that McKay was taking the money from her. At the complainant's prompting, she gave him her bank account details. From then on money was paid into her account. McKay, nevertheless, continued to take the money as he had access to her account. There was a meeting arranged for the complainant to see her to discuss her finances, but that meeting did not proceed.
36. In cross-examination the appellant said that she took money from the complainant in order to enable McKay to pay for his drugs. She remained present when McKay made the initial demand for money as she wanted to make sure that he did not hit the complainant. She sent the complainant pictures of her pregnant belly and her breasts at his request, using WhatsApp. She denied conducting any of the searches on McKay's phone, and did not even know how to perform a Google search. She denied ever threatening the complainant. She denied making any calls to his home landline.
37. She accepted that she had lied in interview in stating that McKay had nothing to do with the matter. She had so lied because they had agreed together that she would take the blame for what had happened and go to prison if need be. The plan was for McKay to avoid blame so that he could stay out of prison and look after her daughter together with his mother. Whatever his other deficiencies, he was a good father. She remained silent for the remainder of the interview in case she said something that would implicate McKay. She agreed that she had written a letter to McKay's family.

The Grounds of Appeal

38. The grounds of appeal are that, by his questioning of the appellant and in his summing-up, the Recorder created the clear impression that in his view the credibility of the complainant was to be preferred over that of the appellant. The conduct of the Recorder was neither appropriate nor fair in a case where credibility was a central issue. The conviction was thus rendered unsafe.
39. As to the questioning by the Recorder, at the end of the evidence of the appellant, the Recorder asked a series of questions of her over a period of nearly half an hour. The Recorder questioned her about the complaint and subsequent retraction she had made about McKay. The Recorder queried why, if McKay was the sort of man that the appellant had told the court he was, i.e. violent, she had told him to return the complainant's Filofax, as that would surely risk making him angry. She explained that she did not want to risk the police, and thereafter Social Services, becoming involved.
40. The Recorder repeatedly asked her whether she viewed as a threat the demand for money made by McKay for the return as a Filofax. She answered that she thought that McKay was trying to put across that he would hang on to the Filofax if he did not receive payment. The Recorder then asked: "So, you knew from the beginning, did you, that Connor had threatened the Complainant in the way that you had seen?" The appellant denied that he had threatened him.
41. The Recorder asked about the first £5,000 payment that had been made to McKay, and whether it had occurred to her that he may have been threatening the complainant in some way. She responded that she did not know what McKay had said to him, but that it did not occur to her that he may have threatened him. The Recorder further asked: "Did it not cross your mind?"
42. In respect of the meeting at McDonald's, the Recorder asked: "Did you think, 'Well, I wonder if Connor has been threatening him' – did that cross your mind?" The appellant denied that it had, as McKay had shown her text messages in which the complainant had agreed immediately to pay the money and was being flirtatious, believing that the text had originated from her.
43. The Recorder asked her why she did not tell the complainant that there was no point in paying money into her account as it was controlled by McKay. She stated that the complainant had said that if he did not pay the money into the account, he would not pay her cash. The Recorder asked her to suppose that someone, including the jury, might be wondering whether the reason that the money started to be paid into the account was because it was much easier and avoided the necessity of arranging to meet up with the complainant for cash to be handed over. The appellant denied this and stated that the complainant wanted it and liked to see her. The Recorder then repeated the suggestion.
44. The Recorder stated that the jury might be wondering why, if the appellant was able to send photos on WhatsApp, she was not also capable of doing a Google search. The appellant explained that sending photos by way of WhatsApp was very simple and that she had no reason to conduct Google searches.
45. The defence then applied to discharge the jury on the basis of an appearance of bias on the part of the Recorder stemming from the questions that he had asked of the appellant at the conclusion of her evidence and from his failure to ask questions of the complainant.
46. The prosecution took a neutral stance on the application. We have been told that the Recorder indicated that that was the stance he anticipated the prosecution would take.
47. The Recorder ruled that the defence were right to contend that he had asked a considerable number of questions of the appellant, but very few, if any, questions of the complainant. The view had been formed that this was an intelligent jury who were taking a particularly keen interest in the case. The questions asked were intended to elucidate and clarify areas of evidence about which they – indeed perhaps any jury – might well be puzzled. These were areas that had not been covered either in chief or in cross-examination. The purpose in asking questions was to ensure that those areas were dealt with. To the extent that the questions put to the appellant areas adverse to her case, the reason for putting them was that there were inferences the jury might draw against her from the evidence as it stood and to which it was fair and proper she had an opportunity to respond. The questions were phrased in such a way so as to avoid any appearance that a case was being put to her, or that a view had been formed that was adverse to her case. That was done in order to make it plain to the jury that the Recorder was not expressing his own views or opinions, but was raising points that might have occurred to someone else, and particularly to the jury.
48. It was not considered that the form of questioning would have given any impression of bias, and the usual directions about the facts being for the jury and disregarding any views of the Recorder would be given in the summing-up.
49. The disparity with the number and length of questions put to the complainant was simply because the evidence of the complainant was complete and did not leave the loose ends which remained at the conclusion of the appellant's evidence. There were no questions that it was thought might surface in the jury's mind at the conclusion of the complainant's evidence. Part of the reason for that may have been that he was a professional man perhaps used to speaking in public, and the manner in which he gave evidence was clear and lucid. In contrast, the appellant was more confused on some occasions in her evidence. That gave rise to an element of confusion and some loose ends which needed to be addressed.
50. It was not considered that the jury would have any impression of bias from either the number of questions asked or the tone, style or manner of those questions. The application was therefore refused.
51. In support of the appeal, it is submitted by Mr Stockwell, who appeared at the trial and has elaborated his helpful written submissions in oral submissions today, that the Recorder conducted what can only be described as a studied and purposeful cross-examination of the appellant over a significant period of time which created the clear impression that he doubted the credibility of the appellant. This was to be contrasted with his treatment of the complainant, of whom he had asked no questions. This was particularly important in a case such as the present, in which the credibility of the complainant and the appellant was the critical issue.
52. It is further submitted that the reasoning the Recorder provided in his ruling for his questioning does nothing to affect the prejudicial impression created. The questioning was not focused on loose ends, but on central issues of credibility. Issues of credibility had been the subject of interrogation by Crown counsel only moments before the Recorder sought to engage in a similar exercise.
53. In relation to the summing-up, complaint is made that the Recorder made various comments which sought to enhance the credibility of the complainant: specifically, at 11D to 12B, 12H to 13D, and 16D of the summing-up. For example, at page 16 the Recorder said this:

"He was asked about whether he was physically frightened of Connor. He said no, he was not physically frightened of Connor even though he was quite a big guy, as he put it. [The Complainant], of course, was quite a small, slight man and although we did not hear his age, he was clearly what I would regard as middle-aged and some of you might even think of him as elderly. In cross-examination he specifically volunteered, so it was not in response to a particular or direct question, 'I was never physically threatened by Connor or Sasha'.

Again, when you consider whether his evidence is truthful you will want to bear in mind that it would have been very easy for him to say that he had felt or been physically threatened. Again you might, it is a matter for you, think that that suggests that he is doing his best to give an honest account to you and has not taken the opportunity to exaggerate matters."

54. By contrast, it is submitted that the Recorder made comment seeking to question the explanation provided by the appellant, particularly with regard to her "no comment" responses in interview. In all the circumstances, and viewing the mater overall, it is submitted that the conduct of the Recorder was not fair, that as a result the appellant did not have a fair trial, and that her conviction is accordingly unsafe.
55. In opposition, on behalf of the Crown, it is submitted that the crucial question to be asked is outlined in R v Hulusi and Purvis 58 Cr App R378, as set out in Archbold (2017 edition) at 7-81:

"Interventions by the judge during a trial will lead to the quashing of a conviction (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing-up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they do not agree, (b) when they have made it impossible for defending counsel to do his duty, (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way."

In the same paragraph in Archbold, reference is made to R v Matthews and Matthews 78 Cr App R 78, which outlines that

"… in considering the effect of interventions made by the trial judge the critical aspect of the investigation was the quality of the interventions as they related to the attitude of the judge as might be observed by the jury and the effect that the interventions had either on the orderly, proper and lucid deployment of the defendant's case by his advocate or on the efficiency of the attack to be made on the defendant's behalf on vital prosecution witnesses by cross-examination administered by his advocate on his behalf. Ultimately the question was: might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury's verdict might be unsafe?"

Reference is also made in Archbold to R v Jahree v State of Mauritius [2005] 1 WLR 1952, in which it was said that, however much hostile questioning of the accused by the judge was to be deprecated, on appeal the issue would be as to whether the questioning was of such central significance as to affect the overall fairness of the trial.

56. It is accordingly the impact which judicial interventions have upon the fairness of the trial as a whole which has to be considered.
57. In the present case it is correct to observe that the questioning by the Recorder was of a prolonged and persistent nature, and that in relation to some topics on which he questioned the appellant he continued to probe beyond the initial answers given. On the other hand, he had refrained from intervening during the course of the evidence, but had decided to leave all his questions to the end. The appellant had been allowed to give her evidence in chief and in cross-examination, uninterrupted, and to tell her own story. Although some of the Recorder's questions touched on issues of credibility, as the Recorder explained, this was because he considered that it was necessary in order to clarify points made by the appellant during her evidence and because these were matters about which the jury may be curious. It may be said that some of his questions were probing of the appellant, but it was not hostile. He also asked questions which might be regarded as assisting the appellant in the presentation of her case and the issues she was raising.
58. Even if the judge's questioning on occasion went further than was strictly appropriate, this has to be considered in the context of the trial as a whole. The appellant was not seriously hampered in the presentation of her case by these questions. There was ample opportunity given to the defence counsel to conduct the case for the appellant. He was not interrupted by the Recorder in conducting questioning or during his closing speech, and the Recorder was courteous at all times to both the appellant and her counsel. In his closing speech, defence counsel drew the jury's attention to the differences and aspects of the evidence of the complainant which were, in his view, relevant and which had been undermined by cross-examination.
59. With regard to the summing-up, the Recorder properly directed the jury that the facts were a matter for them and that they should disregard any of his views. He specifically said this:
    

"If in the course of any of my questions to the witnesses I appear to express a view about that witness, again, you should disregard any view you think I expressed unless you happen to agree with that view. So when it comes to the facts of the case it is your judgement and your judgement alone that counts."

60. As to his comments, a trial judge is entitled to comment on the evidence. The Recorder's comments in this case included comments to the advantage of the appellant. For example, at page 27A of the transcript of the summing-up he said this:

"Those were not only complaints that were made by [the appellant] but complaints by what you may think are concerned neighbours. So you may think there is evidence to support what [the appellant] says about the nature of her relationship with Mr McKay."

The judge had also directed the jury as follows:

"The facts of the case, to reiterate, members of the jury, are your responsibility. If when I come to review the evidence I seem to express any views about the facts, or if I seem to emphasise a particular aspect of the evidence, do not adopt those views of mine, or the views that you think are mine, unless you agree with them."

61. Considering the summing-up as a whole, the Recorder provided a balanced overview of the evidence and each party's case, and no complaint is made about his summary of the relevant evidence.
62. In our judgment, for the reasons outlined above, this is not a case in which it is or can be said that the Recorder's interventions made it impossible for defence counsel to do his duty, or effectively prevented the appellant from telling her own story in her own way. Nor, having regard to the overall conduct of the trial, is it a case in which the Recorder invited the jury to disbelieve the evidence of the defence in such strong terms that the mischief cannot be cured by the directions given that the facts were for the jury and that any view apparently expressed by the Recorder, including during questioning, should be disregarded unless the jury agreed with it.
63. In our judgment, this is not one of those cases where the Recorder has overstepped the line and effectively become a second prosecutor. Nor is this a case in which the Recorder's interventions and comments have rendered the conviction unsafe. Aside from the complainant's credibility, there were many other pieces of strong evidence that supported his account and provided a strong case against the appellant, in particular:

(1) £72,000 was paid into the appellant's bank account as opposed to the smaller sum of £2,250 which was paid into McKay's bank account.

(2) There were numerous text messages and phone calls which came from a phone attributed to the appellant. The wording of some text messages suggested that they came from a female; some were signed "Sasha"; and some invited the complainant to call her back, which strongly suggest that they came from her. There were direct threats and demands made in some of the text messages, such as threats to tell the complainant's wife, demands for sums of money, threats to visit his work, or to turn up at his home address.

(3) The appellant met the complainant in person on several occasions when money was handed over.

(4) The complainant's evidence was that the appellant made direct threats over the telephone.

(5) After arrest and caution, the appellant made the comments "Wait until you find out what he did to me. He's been paying me to keep quiet".

(6) The appellant also made the decision to make no comment, or very little comment during her police interviews.

(7) The appellant did not blame McKay until her Defence Statement was served a few weeks before the trial.

(8) The appellant wrote to McKay's family saying that "We are both to blame for the situation we are in".

64. In summary, there was a strong case against the appellant and we are satisfied that the conduct of the Recorder which is criticised falls far short of rendering the conviction unsafe.

Conclusion

65. For all the reasons outlined above, we are not satisfied that the appellant's trial was arguably unfair or that her conviction is arguably unsafe.
66. It follows that the appeal must be dismissed.
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