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
		16th June 2017

LORD JUSTICE HAMBLEN:

Introduction

1. On 17^th October 2016, in the Crown Court at Wolverhampton, before His Honour Judge Webb and a jury, the applicant was convicted on counts 2 to 9 (by a majority verdict of 11:1). On 21^st October 2016, he was sentenced as follows: on each of counts 2 to 5 (Rape), to thirteen years' imprisonment; on counts 6 and 7 (Causing a person to engage in sexual activity without consent), to ten years' imprisonment; on count 8 (a further count of Causing a person to engage in sexual activity without consent), to four years' imprisonment; and on count 9 (Assault occasioning actual bodily harm) to two years' imprisonment. All of the sentences were ordered to run concurrently, making a total sentence of thirteen years' imprisonment. He was acquitted in respect of count 1 (a further count of rape).
2. The applicant's applications for leave to appeal against both conviction and sentence and for leave to call fresh evidence have been referred to the Full Court by the Registrar.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. The judgment will be anonymised accordingly.

The Outline Facts

4. The complainant, "K", lived in a flat in Walsall with her young son, "H", then aged 6 years. In July 2014, she met and formed a relationship with the applicant who frequently stayed overnight at her address. Extensive text and Facebook messages between them suggested that the relationship was intense and tempestuous. The complainant described the applicant as "controlling".

Count 1 (of which the applicant was acquitted)

5. In relation to this count, K alleged that on an unknown date in October 2014, after an evening out, the applicant raped her. She informed her mother, sister and a friend, and ended her relationship with the applicant. Thereafter, the applicant sent a series of text messages in which he appeared to apologise to the complainant and asked her to have him back. She agreed and resumed the relationship.

Counts 2 to 9 (of which the applicant was convicted)

6. In relation to these counts, K stated that on 31^st January 2015, after an evening out in Birmingham, the applicant committed a series of further sexual assaults upon her at her flat as follows. He penetrated her vagina with his penis (count 2). He twice penetrated her anus with his penis (counts 3 and 4). He penetrated her mouth with his penis (count 5). He caused her to penetrate his anus with her finger (count 6); to lick his anus (count 7); and to touch her vagina with her fingers (count 8). In addition, he physically assaulted her, causing her actual bodily harm (count 9).
7. In the early hours of the following day, whilst the applicant was sleeping, the complainant left her flat wearing her pyjamas. She reported the matter to her mother and to the police the following day. She never returned to live at that address.
8. The prosecution case was that the complainant's account was true and accurate. The applicant had raped her on a date in October 2014 and thereafter on 31^st January 2015 had embarked on a series of sexual acts to which the complainant did not consent and to which he knew she did not consent. In respect of count 9, he had hit her during the sexual assaults and had caused injuries.
9. The defence case was that the applicant did not rape the complainant in October, but that he had slapped her on an occasion when she had hit him twice and was accusing him of seeing another woman. In respect of counts 2 to 9, the allegations of forced sexual activity and assault on 31^st January 2015 were denied. It was the complainant who instigated sexual activity on this occasion, all of which was consensual. It was denied that there was any physical assault at all.

The Prosecution Evidence

10. The complainant, K (aged 27 at the time of trial), lived with her young son, H, in a flat in Walsall. She met the applicant in July 2014 and their relationship quickly became sexual. They both worked and the applicant frequently stayed at the complainant's address overnight. She described him as "controlling" and her impression was that there was something psychologically wrong with him.
11. In relation to count 1 (on which the applicant was acquitted) K's evidence was that on the night in question in October 2014 she had gone to bed because she was tired and wanted to sleep. The applicant had probably had a drink and started to make sexual advances. She tried to shrug him off and told him "No", but he continued and placed his penis into her vagina. She described him holding her down for about half an hour, during which she was crying and telling him to stop. Eventually, she got her hand free and tried to hit him, but he hit her back several times, hard and continued to have sex. Afterwards, he ejaculated over her face. She had not reported this incident to the police, but had told her mother, her sister and her friend about it.
12. In cross-examination she said that the incident seemed to last an eternity. She had not sought medical attention and did not shout or cry loudly because her son was sleeping in the room next door. She had not accused the applicant of a sexual relationship with another woman, nor had she pointed her finger in his face or shouted at him. She later phoned her mother, her sister and her friend to tell them what had happened.
13. The complainant agreed that she resumed her relationship with the applicant within days of the incident alleged in count 1 because, she said, he seemed so charming. He had sent her a large number of messages in which he appeared to apologise for his behaviour, seek forgiveness, promise never to make her feel "scared" again, and to declare his love for her.
14. The relationship continued and, despite a series of further short break-ups, the applicant proposed marriage and a move to Norfolk. The complainant explained that she loved the applicant, but did not want to get married until he sorted out his problems and issues. They split up again in January 2015, and between 16^th and 20^th January the applicant went to Amsterdam without her, to which she did not object and was not jealous.
15. K explained that, on a number of occasions, the applicant had threatened to commit suicide as a way of controlling her. On 25^th January 2015, they had words and split up. She was sufficiently concerned about the suicide threats being made by the applicant that she called the police.
16. After an exchange of more friendly messages between 28^th and 30^th January 2015, the complainant and the applicant again declared that they loved each other and met on 31^st January 2015 for an evening out in Birmingham. The complainant said that they both consumed alcohol – the applicant much more than her, but that he could drink a lot. On the way back to her flat by taxi at the end of the evening, the complainant told the applicant that she was tired and wanted to go straight to sleep.
17. The complainant explained that when they arrived back at her flat the applicant started to make sexual advances, but she told him to "get off" and tried to escape. Everything that followed was without her consent. In the bedroom he penetrated her vagina and her anus with his penis (counts 2 and 3), and in the living room he again penetrated her anus with his penis (count 4), and also penetrated her mouth with his penis (count 5).
18. In addition, the applicant also made her lick his anus, put a finger inside his anus, and touch her vagina with her fingers.
19. During the sexual assaults, K sustained several injuries as follows: marks on her wrist, where he gripped her tightly; an injury above her right eyebrow, where he punched her; a mark at the top of her shoulder (which she could not explain); and a cut to the inside of her mouth, where he pushed his fingers down her throat.
20. Throughout these events, she asked the applicant to stop and had screamed out, but he had covered her mouth with his hand. She tensed up and tried to move away, but feared for her safety. Matters came to an end when the applicant fell asleep. The complainant left the flat in her pyjamas and travelled by taxi to her parents' home in the early hours of 1^st February.
21. As she left her address, she saw a neighbour returning from a nightshift. The neighbour described her as looking upset and asked where she was going, to which she replied, "I am fine. I'm going to my mum's" and then ran off.
22. K sent the applicant a text message at 0344 hours on 1^st February, stating:

"I've never been so hurt by anyone. I just don't understand why. I never want to see you again."

23. The next morning, K told her mother what had happened and the allegations were formally reported to the police.
24. In cross-examination it was put to her that there was no penetration of her mouth, vagina or anus in the living room, and that everything had happened in the bedroom, with her full consent, and in some instances at her instigation. She insisted that she had been raped by the applicant as alleged, and reiterated that she had not consented to any of the sexual activity that evening. The applicant had simply put her in the various positions and performed the various acts. Her recollection was vague as to what happened between arriving home on 31^st January and the applicant first getting on top of her, but she was not drunk and had not taken any medication. She told him "No", but he just carried on. She was unsure how long the ordeal lasted, but it seemed like hours.
25. The complainant's mother, "KS", described how she saw K the following morning. She looked upset and she could tell that something was wrong. She said that she asked her what had happened and K told her "Dan happened", and she showed her teeth marks on her lip. She asked whether he had hurt and raped her. K replied, "Yes, from front and back". She then rang the police.
26. The complainant's sister, "S", also gave evidence about her understanding of events on 31^st January, although, as the judge pointed out in his summing-up, it was not clear whether K had actually complained to her.
27. The complainant's first two Achieving Best Evidence ("ABE") interviews on 1^st February, during which she gave her account of the allegation in count 1, failed to record due to technical issues. In a third ABE interview the same day, she gave her account in relation to count 1, and also about the matters that had occurred the previous night on 31^st January.
28. The applicant was arrested. In interview he gave a full account in which he denied the allegations, which account was generally consistent with his account at trial, albeit he did not mention that he believed that the complainant was jealous about him and had seen messages on his phone from another woman.

The Defence Evidence

29. The applicant gave evidence that the complainant was contradictory during their relationship; sometimes she was controlling and jealous, but at other times she wanted her "space".
30. He denied raping the complainant, as alleged in count 1, but did recall an occasion when he slapped her face, lightly. This was after she had hit him twice during an argument about his phone. She wanted to go through his messages because she believed that he was seeing other women. After he had left her flat he felt mortified at what he had done. He sent a number of messages apologising for his behaviour, but the apology was in relation to the modest slap.
31. He confirmed that he had asked K to marry him and that he had taken steps to look for a property in Norfolk where they could live together. But in early January they argued again and he went off to Amsterdam. He said that K was continuously jealous of him, and especially of his cousin V, although he accepted that he could not identify any text message from her accusing him of chasing other women.
32. In relation to the suicide threat, he said that on 24^th and 25^th January they decided that they did not want to be together. He accepted that he had sent her text messages making references to funeral plans, which was silly. He was upset. They decided that their relationship would not continue.
33. Thereafter, there was a coming together. They met on 29^th January. On 30^th January, they exchanged declarations of love. On 31^st January, they went out for an evening in Birmingham. They each had a similar amount to drink but were not drunk. At one stage which he returned from a visit from the toilet, K told his that she had been accidentally elbowed in the face which caused the injury to her mouth. K denied any such conversation. She said that she had not been injured in this way.
34. When they arrived back at her flat they talked and cuddled in the kitchen. As they walked through the lounge he gestured towards the sofa and suggested "Now, there's an idea", but K said, "No, we're going to bed". She undressed herself and told him to remove his clothes, which he did. She then proceeded to perform oral sex on him for ten minutes before laying back and saying "Come here". They kissed and had vaginal intercourse and then anal intercourse.
35. The applicant denied that there was a second episode of vaginal intercourse afterwards. K licked his anus and put her finger into his anus of her own volition. This was something she did quite often. He put his finger into anus with her consent. She also masturbated him at one stage. They used lubrication which they had purchased together. He denied putting his hand over her mouth, but did put his fingers in her mouth because she was nibbling them playfully. Throughout the complainant was willing, consenting and encouraging. The sexual activity was rough and vigorous at her instigation, after which she felt "sore".
36. There was no sexual activity in the living room at all. He did not hit her at any stage. He did not ejaculate. They stopped because they were both tired. They went for a cigarette in the kitchen and then returned to bed to sleep in each other's arms.
37. When he received her text message saying that she was "hurt" and "never wanted to see [him] again", he assumed that she had looked through his phone and read messages between him and V about his relationship with K. As set out in the summing-up, he said that the messages were not available as they had not been extracted from his mobile phone. He went home and expected K to contact him.
38. In interview he had not mentioned the possibility of K being jealous about messages, but had said that he assumed she had gone to collect her son from her mother's address.
39. In cross-examination he made it clear that he was not accusing the police of failing to investigate the case properly. However, he insisted that he was not lying when he suggested K reacted as she did because of jealousy towards V.
40. As to why he did not obtain copies of the messages via his legal team, he said that he had been confused by K's text in the early hours of 1^st February. He had not contacted her to ask why she felt hurt or what he was supposed to have done. The reason he chose not to ask was because their relationship was always up and down and he just thought that he would forget it. He denied that his failure to reply was because he knew that he had done something brutal.

The Grounds of Appeal

The Appeal against Conviction

41. The grounds concern two matters: first, evidence of Facebook messages obtained after the jury had retired; and secondly, events concerning a juror after retirement.

The Facebook Messages

42. The jury retired to consider their verdicts on 13^th October 2016 at 3.38pm. On the morning of 14^th October 2016, defence counsel handed to the judge a bundle of documents that he had received that morning. He explained that, following the applicant's cross-examination the previous day regarding his failure to produce the Facebook messages between him and his cousin V, his mother had contacted V and had obtained "screen shot" copies directly from her Facebook page. Counsel applied for permission to re-open the defence case and introduce this evidence. The judge refused the application.
43. Thereafter, defence counsel applied for the jury to be discharged. Again, the judge refused the application. The judge held that this material did not go to a central issue in the case. It was peripheral evidence and open to comment, which would divert the jury from the real task. Further, the evidence would and should have been available, if it was important, months earlier.
44. On behalf of the applicant it is contended that the judge erred in refusing to admit the further evidence (ground 1); alternatively, having refused to admit the evidence, he erred in refusing to discharge the jury (ground 2); alternatively, the evidence should be admitted as fresh evidence and it renders the convictions unsafe (ground 3).
45. The background against which this further evidence falls to be considered is as follows. The case for the Crown was that K had left her flat hurriedly in the early hours of 1^st February 2015 in her pyjamas in a bid to escape the applicant who had fallen asleep following the alleged sexual assaults.
46. The applicant did not dispute that K had left apparently hurriedly in the early hours in her pyjamas. However, he denied that she had left because she was in fear following any sexual assault. His case on her hurried departure was that K was often quite controlling and possessive of him and that she had searched through his phone on previous occasions. K was also jealous of his cousin V and had previously accused him of "fancying" V. The applicant believed that after he had fallen asleep in the early hours of 1^st February 2015, K had searched through the recent messages on his mobile phone. He said that she must have found Facebook messages between him and V from the days just before 31^st January in which he had told V that in his view his relationship with K was over and that there was no chance of a reconciliation.
47. The applicant had had an offer accepted on a house purchase on 30^th January 2015 and there was a possibility that K could move in with him at the new address. The applicant's case was that viewing the Facebook messages in which the applicant appeared to be discussing the relationship in negative terms with a woman whom K saw as a rival had crystallised K's own negative feelings about the relationship. In light of what she had read, she had taken the sudden decision that she did not want to move in with the applicant and in fact immediately sought to extricate herself from their relationship. The applicant's case was that, no doubt acting in anger, she had left without further ado.
48. This case was put to K in cross-examination. Her evidence was that K had met V, but that she had not accused the applicant of "fancying" her. She denied that she had searched through the applicant's phone in the early hours of 1^st February. She denied that she had viewed any Facebook messages in which V and the applicant had been discussing their relationship or that her departure from the premises in the early hours of 1^st February was in any way connected to this.
49. When the applicant gave evidence, he set out the matters outlined above. He placed before the jury a schedule of text messages. These texts had been obtained from the forensic imaging by the prosecution of a mobile phone seized from him on his arrest. Whilst the schedule of texts did contain a number of communications between the applicant and V, they did not contain any messages sent by the applicant to have been those viewed by K immediately prior to her departure. The applicant's explanation for the absence of such messages from his phone was that he had deleted his Facebook account when he had been released from the police station because he did not want to be drawn into any breach of bail in the event that K tried to contact him through that medium. Thus, whilst there were ordinary text messages, there were no Facebook messages; and the relevant messages with V had all been Facebook messages.
50. Prosecution counsel cross-examined the applicant about the absence of the supporting Facebook messages. He put to the applicant that he was lying about these messages, which was denied by the applicant.
51. On the morning of the day after the jury had retired, the applicant's mother, KS, attended court and handed to defence counsel the Facebook messages exchanged between the applicant and V. KS had been in court on 12^th October when the applicant had given evidence about the possibility that K had checked his phone and had seen messages from V. Following the applicant's evidence on 13^th October 2016, KS had contacted V and had asked if she would check for any messages that she had exchanged with the applicant in the days prior to 31^st January 2015. V had thereafter forwarded a number of messages to KS's mobile phone, which the latter had then printed out. This account has now been confirmed and witness statements provided by KS and V in support of the application to be allowed to adduce fresh evidence.
52. The four pages of messages were placed before the court. The conversations recorded were as follows:

25.01.15, 17.20 – V to the applicant: "Wanna be friends now do you lol"

25.01.15, 18.13 – applicant to V: "Lol new fb"

25.01.15, 19.04 – V to applicant: "How come?"

[No time stamp] – applicant to V: "Long story but I'm sure you don't really need an explanation. X"

[No time stamp] – V to applicant: "Are you ok? Are you and [K] over? X"

[No time stamp] – applicant to V: "Yea we are and no not really but I am capable of a brave face. X"

[No time stamp] "Bless ya. Is there no hope of you two getting back together? X"

[No time stamp] "No there isn't. X"

25.01.15, 19.39 – applicant to V: "unfortunately it's one of those things. I haven't a bad word to say about her but it just didn't work it's a real shame. X"

25.01.15, 20.44 – V to applicant: "that is a shame, sorry to hear about that. X"

53. We propose to consider first the application now made to adduce fresh evidence. In order for fresh evidence to be admissible under section 23 of the Criminal Appeal Act 1968 it is necessary for the court to consider whether: (1) the evidence is capable of belief; (2) the evidence may afford a ground for allowing the appeal; (3) the evidence would have been admissible; and (4) there is a reasonable explanation for the failure to adduce the evidence.
54. A fundamental difficulty facing the applicant is demonstrating that there is a reasonable explanation for the failure to adduce the evidence which, as is accepted, was clearly available at the time of the trial. Whilst there is a reasonable explanation as to why KS did not obtain the Facebook messages until when she did, that does not begin to explain why neither the applicant nor the applicant's defence team sought to do so, and there is no evidence before the court to explain that failure. What was obvious to KS would or should have been obvious to the applicant and his defence team. The fact that these messages had been deleted from the applicant's phone did not mean that they no longer existed, and the obvious person to ask was V. The applicant and his defence team were well aware that he would be relying on these Facebook messages as part of his case to explain why K had fled the flat in the middle of the night in her pyjamas, since they were put to K in cross-examination, and evidence about them was given by the applicant in chief. As the judge held: "this evidence would have been and should have been available, if it was important, months ago".
55. That is a sufficient reason to refuse the application to adduce fresh evidence. In any event, we are not satisfied that the evidence may afford a ground for allowing the appeal.
56. It is to be noted that the messages all occurred on 25^th January 2015. They confirmed that on that day the applicant regarded his relationship with K as being over. But that was common ground on the evidence. It was the evidence of both K and the applicant that they had split up on that day. That was the background to the suicide threat messages. Whatever was on the phone was common ground to K and the applicant. If K had read the messages of 25^th January they would therefore have been no surprise to her. They would simply have confirmed what she already knew. As such, they would have provided no good reason for her to be upset with the applicant. A focus on these messages would, if anything, have undermined the explanation the applicant was providing, rather than supporting it.
57. Emphasis is placed on the fact that the existence of the messages had been challenged, that this went to credibility, and credibility was a central issue in the case. There were, however, far more important issues bearing on credibility than the simple fact of whether these messages existed: such as, what had happened on the evening in question; how K had sustained her injuries; and why the applicant had failed to respond to her text message.
58. In our judgment, the judge was justified in regarding the existence of these messages as peripheral and collateral to the events covered by the indictment and credibility in relation to those events. We are not satisfied that the evidence arguably may afford a ground for allowing the appeal. That is an additional reason for refusing the section 23 application. It also provides objective justification for the judge's refusal of the application made at trial. Even if the applicant could show that the judge should have admitted the Facebook messages, any failure to do so would not affect the safety of the convictions.
59. In any event, we consider that the judge was correct to refuse the applicant's application to adduce fresh evidence after the jury had retired. As the judge held, the evidence was peripheral. If it was considered important, it could and should have been obtained long before. In addition, the introduction of such late evidence would have had a seriously disruptive effect upon the trial. The prosecution at no stage accepted the veracity of the material purported to have come from the phone. Had the judge been minded to allow the evidence to be introduced, the prosecution would have asked for an adjournment to allow for expert examination of the phone to see if the material was genuine and to see if there was other material which was relevant to the issues.
60. Further, the applicant did not have the proper evidence at court in order to prove the material. The proper evidence would be the person who was the maker and receiver of the calls, not the applicant's mother who had simply talked to that person. It was never established whether the proper witness was available and willing to give evidence. But, if she was, that would have required the giving of oral evidence, examination in chief, cross-examination, speeches from both prosecution and defence, and a further summing-up.
61. There is no doubt that the general and settled principle is that no further evidence is to be provided to a jury after its retirement. As Lord Widgery CJ stated in R v Davis 62 Cr App R 194 (at page 201):

"… The jury may not when they have once retired to consider their verdict be given any additional evidence, any additional matter or material to assist them. They can come back and ask the judge to repeat for their benefit evidence which has been given, but they cannot come back and ask for anything new and the judge must not allow them to have anything new."

62. As more recent authorities show, there is no absolute rule to that effect: see, for example, R v Karakaya [2005] EWCA Crim 346 at [18]; R v Hallam [2007] EWCA Crim 1495 at [22]; and R v Khan [2008] EWCA Crim 1112 at [39]. There may be exceptional cases where the admission of further evidence is permitted because justice requires it, as was the case, for example, with the corrected phone schedules which assisted the defendant's case in Khan, or the photograph produced by the prosecution in Hallam, which was agreed to be of importance to the defence.
63. There is, however, no authority which comes close to allowing the admission of evidence such as that in this case, namely peripheral evidence which, if important, could and should have been obtained by the defence long before, which required further investigation and disclosure, as to which there were admissibility issues, and which, if admitted, would have required oral evidence to be given and the re-opening of the trial after the retirement of the jury. Equally, such evidence cannot properly found an end of trial application to discharge the jury.
64. For all these reasons, we refuse the application for leave to appeal against conviction on grounds 1 and 2, and the application to adduce fresh evidence.

Events concerning a juror on 17^th October

65. On 17^th October the court received a note from one of the jurors which appeared to suggest that he was struggling with his obligations under the oath. He identified concerns and sought to be discharged. The note listed five points:

"Points observed

1. When selected, certain individuals stated by just looking at the [applicant] that 'he looks the type' (reference is made to that he's a rapist).

2. Some members were constantly talking about the case (against the Honourable Judge's directions).

3. One juror during deliberations stated that she had been raped but never reported it to the authorities. I feel this statement has influenced some jury members. I strongly feel this is wrong.

4. Also some members were making decisions on their experiences with their ex-husbands.

5. I was asked that if it was my son in the position of the [applicant]. I am very disappointed and offended with this comparison. To me this has no bearing on the case. My son is not on trial."

66. The judge and counsel considered the appropriate procedure and steps to be taken. It was agreed that the single juror should be invited back into court, alone initially. The juror was asked about point 2 of his note, namely about his assertion that the other eleven jurors had been discussing the case outside of the jury room, and when he was not sat with them. It was this point which the defence submitted "really is of great concern". There followed a discussion between the judge and counsel as to how best to proceed.
67. Following that discussion, the juror was asked a further question relating to point 5 of his note and his reference to being asked by other jurors what he would do if his son was in the position of the applicant. He explained that he considered that to be offensive.
68. The judge then gave directions to the jury regarding their deliberations. He reminded them that they must not discuss the case outside their room, and should do so only when all twelve of them were together. He also reminded them of their oath, and that they must consider the case only on the evidence that had been placed before them, objectively and dispassionately, and draw reasonable inferences as appropriate. He asked them to retire and consider whether they thought they could continue with the case and discharge their duty in accordance with the oath.
69. The individual juror was then invited back into court alone. He was reminded of the need to discuss the case politely and rationally with his fellow jurors and that, ultimately, if he did not agree he should say so; he was to remain true to his oath; and he was not expected to be party to a decision with which he did not agree. The juror asked if he could just tell his decision to the others and then walk away. He was advised that this was not permitted. It was part of his civic duty as a juror to stick with the case, and he was required to do so.
70. The judge then brought the entire jury back into court and reminded them of their duty to exchange views and to discuss the case rationally and politely with their colleagues. There was no need for complete agreement on every point, and they ought not to agree to something just for a "quiet life". He asked whether they felt able to continue in accordance with their oath, to which they answered in the affirmative.
71. Immediately after the judge had sent the jury out to continue their deliberations, defence counsel applied for the jury to be discharged. He submitted that the applicant was entitled to be tried by twelve jurors considering the case on the evidence alone and that there was a clear prima facie irregularity, as described in the Criminal Procedure Rules, in that one juror at least had expressed the view that he was unable to decide the case on the evidence alone, or to be true to his oath. The juror had sent a note raising five points of concern, but had only been asked about his second and fifth points. The points of concern indicated that a serious and fundamental breach of the judge's directions had occurred, on more than one occasion throughout the trial. Even though the judge had now further directed the jury, that could not remedy what had already occurred, namely that eleven of them had been discussing the case in the absence of the twelfth. The integrity of the trial process had been undermined. In relation to the other questions raised in the juror's note, the court had declined to inquire, and that left the position that one juror had questioned the fairness of the proceedings. The mischief had been done and could not be rectified by the directions given. Since the integrity of the trial could no longer be guaranteed, the jury ought to be discharged.
72. The judge ruled that the jury would not be discharged. He read the juror's note for the record, setting out his five points, and noted that the juror felt, after deep reflection over the weekend, extremely stressed, especially with his fellow jury members, and that he was not doing justice or right be taking the oath.
73. The judge set out the chronology of what had occurred following receipt of the notes, including that defence counsel had been given time to consider the matter, to take instructions, and to make representations as to the best way forward. The judge stated that he knew no more than that which he had set out in his ruling and that he had carried out those investigations he considered to be appropriate. He was confident that, when given proper directions and when those directions were reinforced, as his had been, jurors would follow those directions and act with objectivity and fairness. For that reason, he would not accede to defence counsel's application that the jury be discharged.
74. The applicant now appeals on the grounds that the judge erred in dealing with the note, and in particular erred in failing to make adequate enquiries concerning alleged failures to decide the case on the evidence (ground 4); and that the judge erred in rejecting a second application to discharge the jury (ground 5).
75. As stated by Judge LJ in R v Momodou and Limani [2005] 2 Cr App R 6 at [94]:

"… the exercise of the trial judge's discretion to discharge an individual juror or the entire jury for impropriety, requires him to address the question whether impropriety has in fact occurred, and if it has, whether it can be cured, and if so how, or whether it is irremediable. This is a case specific decision."

76. In the present case it is submitted that the judge did not make sufficient inquiry into whether an impropriety had occurred. In particular it is submitted that inadequate inquiry was made in relation to points 1, 3 and 4 of the juror's note. It is submitted that point 1 raised the prospect of improper bias against the applicant based upon wholly irrelevant factors from the outset of the case by a number of jurors. Point 3 raised the prospect of ingrained antipathy to the applicant based upon the personal experience of one member of the jury, which may have spread to others. Point 4 raised the further prospect that the case was being approached by one or more jurors in an inappropriate way, bringing to bear to decisions in the case matters other than the evidence.
77. It was originally submitted that the judge should have questioned the juror in respect of points 1, 3 or 4 in the following terms.
78. In relation to what had been said in respect of point 1, by how many jurors and when? Had such views been repeated during jury deliberations? To what extent have such views been expressed so as to call into question whether any juror was acting in breach of the jury oath?
79. In relation to what had been said in respect of point 3, to what extent had the jury who had made disclosure of rape evinced general antipathy to the applicant based upon her personal experience? Had this been taken up by others? In all the circumstances, to what extent had the juror or jurors acted in breach of the jury oath?
80. In relation to what had been said in respect of point 4, to what extent had the individuals to whom reference had been made at point 4 acted in this regard in breach of the jury oath?
81. It is now accepted that such questioning would have been inappropriate. Instead it is suggested that the juror should have been asked whether he considered that on the basis of what he had seen and heard he felt that any or all of the other members of the jury would be able properly to discharge their duties, remaining faithful to their oath. Depending upon answers given, further questions could have been framed accordingly.
82. It is contended that, had the judge properly embarked upon questioning the juror in respect of points 1, 3 and 4, then depending upon the outcome of those inquiries, the judge could thereafter have assessed whether further inquiry needed to be made of other jurors in the case. He would, at the very least, have had a far better idea of the extent of any impropriety and whether it could be cured. As it was, the failure to ask any further questions meant that the court simply had no proper idea of how far the possible prejudice went or the extent to which other jurors were in breach of the jury oath. If so, then it may not have been sufficient simply to direct the jury to put outside their concerns any personal experiences or to direct them to ask themselves the question whether they felt able to discharge their duty in accordance with the oath they had taken.
83. It is submitted that the judge's failure to conduct an adequate inquiry means that it simply cannot be said that the applicant had a fair trial in which the jury discharged their oath to try the case on the evidence. Even in the absence of further inquiry, it is submitted that there was enough material before the court as a result of the note and the questions asked to show that a fair trial was no longer possible and that the jury should be discharged. It is submitted that such inquiries as had been made suggested that there had been a fundamental breach of the court's directions, in particular the direction not to talk about the case outside the jury room and the direction that deliberations should only take place following retirement when all twelve jurors were present and participating. Further, the juror who had produced the note had distanced himself from other jurors. The risk in all the circumstances was that opinions adverse to the applicant might have become entrenched and hardened in the absence of that juror's participation. It is submitted that it follows that the integrity of the trial process had been compromised so that a fair trial from twelve impartial jurors deciding the case on the evidence could no longer be guaranteed. At that stage the judge should have discharged the jury and he erred in ruling otherwise.
84. As observed in Momodou, how to deal with a jury note such as this is a "case specific decision". When these issues arise, each case has to be dealt with depending upon its own facts. The trial judge is best placed to decide how that is to be done and this court will be slow to interfere with his or her assessment.
85. In the present case the judge appropriately approached the issues raised. He discussed the note with counsel and considered their submissions as to the best course of action to take. He then made such further enquiry as he considered to be appropriate in all the circumstances.
86. As to point 1, this was an observation said to have been made at the outset of the trial and there was no reason to suppose that it could not be appropriately addressed through directions to the jury.
87. As to points 3 and 4, the judge has to ensure that he does not trespass into enquiry about what has been happening in the jury room. The judge has a difficult line to draw between attempting to make a proper investigation and trespassing into the jury room. Points 3 and 4 were essentially about how the jury deliberations were being conducted. The judge was justified in concluding that it would not be appropriate for him to start to enquire into that area of the case. This is borne out by the further questions which it was originally suggested should have been asked. These were essentially enquiries into what was happening in the jury room.
88. As to the question which is now suggested should have been asked, this is to enquire into one juror's subjective view of whether he "felt" the other jurors would be able to remain faithful to their oath. Such an enquiry would be neither appropriate nor helpful. Any investigation to be made has to be into the facts, not into individual jurors' opinions or feelings.
89. It is inevitable that there will from time to time be issues between individual jurors and jurors who are unhappy as to the conduct of their colleagues. As the judge observed:

"… I will deal with that in the usual way that it is not an unknown situation in cases for one juror to say ' I am worried about the rest of the jury'. And the classic way of dealing with it is for the judge to explain, in general terms, what the concern is that is mooted. Then to ask the jury to reflect upon it, to go away, consider and if any of them feel that they cannot do the job properly, in accordance with their oath, they must say so. But that it is fundamental that they put out of their minds anything that may have happened to them or anything they may know about that has happened to a friend. They have to deal with this case on the information that has been presented to them in this court and only that. And that is the way to deal with it."

That is what the judge then did. He gave a full and robust direction in the following terms:

"Ladies and gentlemen, I have received a note. I am not going to read out the note; it is enough to say that both counsel have seen it, Mr Raudnitz, of course, was here last week, Ms Murray is sitting in for Mr Arnold, who has other commitments today, and we have been discussing it.

The first thing that I should say is that it has come to my notice that some, or nearly all of you, may have been talking about the case outside your jury room. It is very important that when you do talk about the case, all twelve of you are together and that it is not where you can be overheard. And therefore your discussions should take place in your jury room. Please make sure that they do. That is the first thing.

Now, another thing that I need to talk about to you – and this is also very important – is your consideration of the evidence. And what I am going to do, because of this note, I have got to deal with it like this, what I am going to do is I am going to say a few things to you, send you out, ask you to mull them over and then come back in a few minutes and let me know the position. So suspend all discussion of the evidence for at least a few minutes; that is the first thing.

Now, when you were sworn I said to you that you had to try this case objectively, dispassionately, on the basis of the evidence, which is the information that you are given within these four walls. That means that you deal with the case firstly objectively, and dispassionately. One of the things that cannot be objective is deciding evidence simply on the basis of how the complainant looks, or how the defendant looks. That would be wrong.

Another way that you must avoid following is some or all of you – and I would not pick all of you, but some of you may know of somebody who has been the subject of a sexual offence. What you may have learned, what you may have experienced will have nothing to do with the decision you have to make in this case. You have to, as it were, if you have any experiences, or knowledge, put them outside your thinking, do you see?

So, objective analysis of the evidence and the drawing of inferences using your common sense, which is what I told you at the very beginning of the case. And what I would like you to do is to retire and ask yourselves this question: 'Do we feel that we can discharge our duty in accordance with the oath that we have taken and try this case fairly, applying those precepts?' And I shall have you back into court in 20 minutes … and one of you can speak for the rest, if any of you feel you cannot please say so. But if you feel that you can, also please say so."

90. The jurors later came back and confirmed that they felt able to continue with the case in accordance with their oath and to deal with the evidence fairly and objectively.
91. In our judgment, the jury directions given were sufficient to address any concerns that the jury might be actually or apparently biased. For the purpose of that direction the judge assumed that what was said in the note under points 3 and 4 was true, thereby obviating the need for further factual enquiry. He directed the jury accordingly and received clear confirmation from them that they felt able to continue in accordance with their oath in the light of the directions given.
92. As to the individual juror, the judge made clear to him his duty to be true to his oath and what that required. He was clearly a most conscientious juror. There was no reason to suppose that he would not act as directed. In any case where jurors disagree, there is a risk that one or more jurors may, rightly or wrongly, feel side-lined or marginalised.
93. In all the circumstances, we are not satisfied that the judge arguably erred in his handling of the case, in dealing with the issues raised by the jury note, or, if he did, that the safety of the conviction was arguably affected. It is to be noted that, notwithstanding the concerns raised, the applicant was acquitted on count 1.
94. For all these reasons, we refuse the application for leave to appeal on grounds 4 and 5.

The Application for leave to appeal against Sentence

95. The judge set out the offences for which the applicant fell to be sentenced on counts 2 to 9. He referred to the earlier allegation in October 2014 (count 1), in respect of which the applicant had been acquitted, and observed that the complainant had taken the applicant back after that allegation because she believed that he cared for her and because she had feelings for him.
96. In the judge's opinion, the applicant was obsessed with the idea of sex with K, to the exclusion of almost all other considerations, including, importantly, her attitude to it. On the night in question, K described the applicant forcing her into various positions when she did not consent. It was as though he was using her for sexual experimentation for his sole enjoyment. When he did not achieve what he wanted, he had resorted to violence. The judge found the applicant "troubling". He concluded from what he had seen during the trial that he was glib and seemingly lacking in emotions, except when the affected his interests. The judge suspected that he was wholly self-centred and had a side that was callous and controlling.
97. Although the judge had considered the obtaining of a pre-sentence report to determine the issue of dangerousness, as the applicant was of previous good character, he could not see that anything other than a determinate sentence would be justified.
98. The judge had regard to the sentencing guidelines, but reminded himself that he was not dealing with an isolated offence. The offences did not conveniently fall within category 1 or 2. The incident was sustained. The complainant K was vulnerable, and alone in her own house. There was violence beyond that inherent in the offences. There was additional degradation, and the complainant was left with serious emotional and physical consequences. She wears a neck brace and lacks confidence as a consequence of what happened to her.
99. The applicant's culpability, however, was not in the higher category. There was no conclusive evidence of significant planning; abuse of trust did not apply; and any previous violence was not proved in view of the jury's verdict on count 1.
100. The aggravating features included the location of the offences and the fact that K was compelled to leave her home as a result of the offences.
101. The mitigating features included the applicant's previous good character, and letters from his present and former girlfriend, which the judge had read. There could be no reduction in sentence because the applicant had been convicted by the jury following a trial.
102. In the light of the accumulation of harm factors, the offence was pushed upwards beyond category 2 into category 1 (albeit 1B) of the guidelines. The judge could not apply the guidelines precisely for the reasons he had explained. In addition, in reality he was dealing with one lengthy incident of sexual offending which had dreadful consequences for the complainant. He bore totality in mind, and thus did not impose consecutive terms.
103. The judge concluded that, having regard to the applicant's overall offending, the appropriate total sentence was one of thirteen years' imprisonment.
104. We should mention at the outset that it was understood by both prosecution and defence that the maximum sentence for that offence charged in count 7 was life imprisonment. In fact, the maximum sentence was ten years' imprisonment. The judge imposed a sentence of ten years' imprisonment, which represents the maximum sentence. Accordingly, we grant leave in relation to that point. We accept that it is not a case in which it would be appropriate to impose the maximum sentence. Accordingly we impose in its stead, on count 7, a sentence of seven years' imprisonment, to run concurrently.
105. In relation to the overall sentence, the grounds of appeal are that the sentence of thirteen years' imprisonment was in all the circumstances manifestly excessive. In particular, it is submitted that the judge erred in placing the offences in the upper bracket of category 1B, which has a starting point of twelve years' custody and a sentencing range of ten to fifteen years.
106. The guidelines state that a category 1 offence is one where the extreme nature of one or more category 2 factors, or the extreme impact caused by a combination of category 2 factors, may elevate it to category 1. The category 2 factors which were relied upon here were: severe psychological harm; additional degradation or humiliation; prolonged detention or sustained incident; violence or threats of violence beyond that which is inherent in the offence; and the vulnerability of the victim due to personal circumstances.
107. It is accepted that this was a serious set of allegations, but it is submitted that not all of the features in this case were in the first rank of gravity when compared with some other cases that come before the court. In particular, it is pointed out that the additional degradation or humiliation was, in essence, the matters in counts 6, 7 and 8. These were reflected in separate counts, but there was no additional degradation or humiliation over and above the matters indicted. Whilst it could be regarded as a sustained incident with prolonged detention, it was limited in fact to a period of, at most, one and a half hours. Whilst there were a number of offences committed, there was in essence a single course of conduct representing abuse manifested in different ways over this period. Further, the alleged violence was not such as to inflict serious injury. The injury was limited to actual bodily harm in the form of, in essence, bruising to the eye and lip. There was otherwise only a report of tenderness at various bodily locations. No weapon was used. There was no serious violence, nor serious threats of violence beyond that which was inherent in the offence.
108. In all the circumstances, it is submitted that while the judge was not wrong in principle to sentence on the basis that this case crept into category 1B, to have imposed a sentence of thirteen years' imprisonment was to have moved too far into category 1, given the fact that the harm factors were not in the first rank of gravity. To have imposed a sentence of thirteen years' imprisonment was to have imposed a sentence almost 50 per cent higher than the highest end of the category 2B range, which is nine years. It was also a year above the starting point of twelve years for a category 1B offence.
109. It is submitted that the appropriate starting point was the bracket of nine to eleven years, representing a range between the top end of category 2 and just below the starting point for category 1, and that there should have been a corresponding reduction down from ten years in the starting points for counts 6 to 8 in respect of the offences under section 4 of the Sexual Offences Act 2003.
110. Further, or alternatively, it is submitted that insufficient weight was given to the applicant's personal mitigation. Aside from the fact that the applicant was 29 years of age and of previous good character, the following factors are stressed in particular. The applicant was adopted at the age of 2. He adoptive family was a close and loving one and have given him considerable support during the case. He had worked consistently since the age of 17. He had not been working for some part of the relationship with V. He had sold his house and was waiting to study to be a driving instructor. That career change had been put on hold after the charge on these matters. He had embarked upon a new relationship in May 2015. This was with a woman to whom we shall refer as "RW". A letter from RW spoke as to the fact that, in their relationship, there was no hint of the behaviours that had featured in the instant case. There was also a very positive testimonial from his first long-term girlfriend, "DG". The applicant had recently been in touch with his birth mother, who had also appeared to support him at trial.
111. In addition, reliance is sought to be placed on a number of positive testimonials since sentence, all of which we have read.
112. This is a case in which the judge has considered the relevant guidelines and reached the conclusion that the most serious offences, namely, the counts of rape, fell within category 1B. It is accepted that he was entitled so to conclude. Category 1B has a starting point of twelve years' custody, and a sentencing range of ten to fifteen years.
113. Having justifiably decided that this was the relevant category, the judge appropriately took the starting point within that range and considered the relevant aggravating and mitigating factors. Having done so, his conclusion was that an uplift from the starting point of one year was appropriate.
114. In our judgment, there was ample material before the court to justify that conclusion. In particular, the guideline applies to a single count of rape, and the judge was sentencing for four offences of rape. Further, all the other sentences imposed were concurrent. The thirteen-year term was meant to reflect the applicant's overall offending, which included a number of other serious offences. In addition, as the judge noted, the incident was sustained; the victim was vulnerable; there was violence beyond that inherent in the offence; there was additional degradation; and there were serious emotional and physical consequences for the victim.
115. The judge had regard to the applicant's personal mitigation. He made express reference to his good character and testimonials received. Having regard to the guidelines, the totality of the offending, and weighing up the aggravating and mitigating factors, the judge's assessment was that thirteen years' imprisonment was the appropriate sentence. Whilst some might regard that as a severe sentence, in our judgment it cannot be said to be wrong in principle or manifestly excessive.
116. Accordingly, it follows that, save in relation to the reduced sentence on count 7, the appeal against sentence is dismissed.
117. We conclude by paying tribute to Mr Raudnitz who has said on behalf of the applicant all that could be said in relation to the applications both for leave to appeal against conviction and sentence. We are grateful for the assistance of both counsel.
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