England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE GOLDSTONE QC, RECORDER OF LIVERPOOL
T20167504

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2018

Lord Justice Bean :

1. On 16 January 2017, following a trial in the Crown Court at Liverpool before His Honour Judge Goldstone QC, the Recorder of Liverpool and a jury, the applicant was convicted by a majority of 10 to 2 of a single count of rape. He now applies for leave to appeal against conviction based on fresh evidence. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case and nothing may be published which identifies the complainant.

The Facts

2. On the night of 16 October 2015 the applicant, a taxi driver, drove the complainant (whose first name is Steven) from Liverpool city centre to near Sefton Park. The complainant got out of the taxi and very soon after – in a state of distress – told his friend KQ over the telephone that he had been raped by a taxi driver. She contacted the police and he subsequently made a formal complaint of rape.
3. The prosecution case was that while they were in the taxi, the applicant forced the complainant to give him oral sex. The prosecution submitted that, in view of the complainant's distressed state and his immediate complaint, the jury could be sure that he was telling the truth.
4. The defence case was that the oral sex did take place but was consensual and was instigated by the complainant. It was submitted that it was not possible in the circumstances – where the applicant was driving – for him to have forced the complainant's head down onto his penis.
5. The issue for the jury was whether the complainant was telling the truth when he alleged that the oral sex took place without his consent.
6. The complainant's evidence was that he had spent the night drinking in town and called a taxi to take him home. He got into the back of the taxi and engaged in the usual conversation with the driver. He had difficulty hearing him, so the driver invited him to get into the front passenger seat which he did. He became uncomfortable when the driver asked about his sexual orientation and whether he liked "dick". Then he realised that they were not taking a direct route to his home. Suddenly the driver unbuttoned his jeans, took out his erect penis, touched the complainant's knee and asked him to touch his penis. The complainant was shocked and said no. Then the driver forced the complainant's head down onto his penis and told him to suck it; the driver asked if it was nice and if he liked it; this was all while he was driving. The complainant went through the motions but was gagging. He felt he had no option. At one point, when they are at a set of traffic lights, the driver told him to sit up which he did, but the oral sex resumed afterwards. The driver ejaculated into his own hand and flicked it out of the window.
7. When they reached his home in Sefton Park, the driver told him to get out and then drove off. The complainant was upset and was crying when he called his friend KQ and told her what had happened. She offered to call the police and he agreed. He gave an initial account to the police that night, and his ABE interview was a week later.
8. In cross-examination it was put to the complainant that there were key inconsistencies between his original account to police and his evidence; in particular, in his first account he stated that the oral sex did not begin until after the traffic lights; he denied that the inconsistency was because the oral sex began consensually. When asked why he co-operated with the request for oral sex and why he did not jump out of the car when they stopped at the lights, he said he was scared. It was put to him that he instigated the sex.
9. A female friend of the applicant whom we shall call KQ gave evidence about the call that she received from the complainant. He was hysterical and told her he had been raped. She then called the police for him. She saw him the next day. He was in bed, pale and upset.
10. A police control room operator spoke to the complainant on the telephone that night and described him as being in a highly distressed state,
11. The applicant was arrested and interviewed. He answered questions and his account was that the complainant made unwanted verbal and physical advances which he resisted. He was shocked and was fighting off the complainant and trying to throw him out of the car. Eventually he dropped him off without the fare being paid. The sexual activity was limited to the complainant attempting to kiss him, put his hand down the applicant's pants and squeezing and touching him.
12. The applicant gave evidence that he was a Yemeni national, and married with children. He became a taxi driver in March 2015. The complainant initially got into the back of the cab, called him "sexy", and was chatty. It was the complainant's idea to get in the front. He immediately put his hand on the applicant's penis but the applicant told him, "I'm not like that, I'm married". During the drive home, the complainant then gave the applicant oral sex while he was driving. It was correct that when they stopped at traffic lights; the applicant told him to stop as someone might see. However, the applicant denied at any point the complainant was unwilling. The complainant wanted the applicant to come home with him and wanted to have sex with him. Eventually the applicant masturbated himself to ejaculation and flicked it out of the window. The complainant put his hand on the applicant's penis and smeared some of the ejaculate on his own face.
13. When they reached the destination, the applicant asked for the fare of £13.60. The complainant was annoyed and said: "You want money? I've got your cum on my face." He then got out of the car and went off. The applicant then went to a friend's shop where he bought a drink and told his friends that a female had come onto him and touched him and wanted to give him oral sex. His evidence was that he was too embarrassed to tell his friends what had really happened. Also, he was scared he could lose his wife and children.
14. In cross-examination, he explained that he had initially decline the complainant's suggestion but then changed his mind and let him suck his penis, because he was curious. He went along with it but decided he did not like it. He masturbated himself to ejaculation because he wanted the incident over with. He agreed that he did not take the direct route to the address; the reason was that he needed the money. Afterwards he felt embarrassed and ashamed. It was put to him that there were inconsistencies between his defence statement and his evidence.
15. It has not been suggested that there was any error by the trial judge in his summing up nor any other irregularity during the trial. Unsurprisingly, no application was made at the time for permission to appeal against conviction. The application, which is before us, was made on 29 July 2017 on the basis that fresh evidence was now available which called into question the safety of the conviction.
16. Statements were lodged from a retired taxi driver, Mr Jeffrey Clarke, made to the defendant's solicitors on 14 March and 21 July 2017 and a statement made by the applicant's wife Hannah Mohammed taken by the solicitors on 6 April 2017. The Registrar referred the applications for an extension of time, leave to adduce fresh evidence and permission to appeal against conviction to the full court. The Registrar's office also identified a technical point relating to sentence to which we shall return at the end of this judgment. The applicant was represented before us by Mr Ford and the respondent by Mr Gibson; both counsel appeared at trial. We are grateful to both of them for their concise and realistic submissions.
17. As is well known, section 23(2) of the Criminal Appeal Act 1968 states that this court "shall, in considering whether to receive any evidence have any regard in particular to:

a) Whether the evidence appears to the court to be capable of belief;

b) Whether it appears to the court that the evidence may afford any ground for allowing the appeal;

c) Whether the evidence would have been admissible in the proceedings from which the appeal lies on the issues which is the subject of the appeal; and

d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

18. As to the last point, it is common ground that the evidence was not available at trial. As to paragraph (c), Mr Gibson in his skeleton argument expressly concedes that if the fresh evidence satisfied paragraphs (a) and (b) and were admitted in evidence at a retrial, section 41 of the Youth Justice and Criminal Evidence Act 1999 would not preclude the complainant being asked about the alleged previous incident. It is also plain that if the applicant were to establish a case for permission to appeal on the merits the necessary extension of time should be granted.
19. Mr Clarke and Mrs Mohammed both attended the hearing before us. In accordance with this court's usual practice we heard their evidence de bene esse (that is, on a provisional basis) and after that heard submissions from Mr Ford and Mr Gibson. We reserved our decision, including a decision on whether the evidence should be formally received.

The evidence of Mr Clarke

20. Mr Clarke told us that he was a taxi driver for about three years but had now retired. He had his own vehicle but worked for Diamond Cars, Whiston, Merseyside. He retired in 2017. He did not know the applicant.
21. One day he went into a newspaper shop in Whiston and bought the Liverpool Echo. There was an article in it about a taxi driver being jailed. Mr Clarke read it in the shop. The article named the driver but there were no pictures in it. The owner of the shop, who Mr Clarke knew as Tony, said that he knew the taxi driver and his wife. Mr Clarke told Tony to give his (Mr Clarke's) phone number to the driver's wife. She rang Mr Clarke about two weeks later. He told her that "the lad I picked up was like the one in the paper". The newspaper didn't name the young lad nor show his image. The driver's wife said she would try to get photos of the lad to me. The phone call was 2-3 minutes.
22. Mr Clarke was then asked about the incident of "the lad" he had picked up. The witness said he had picked him up at the Marriott hotel in Liverpool City Centre. It was nearly in the early hours of the morning. He had just dropped off another fare. The name Steven came up on his screen with a request to pick him up at the Marriott at 2am and take him to Allerton Road, Mossley Hill. Mr Clarke went to the Marriott as requested and collected Steven. He wasn't with anyone else. The vehicle was an eight seater bus. The passenger got in right behind the driver's seat. He was a bit drunk. Then he "started being funny with me. He was slurring his words and singing. When we got closer to the drop off point, which is about 15 minutes drive from the Marriott at that time of night the passenger said that he had got no money and asked "can I pay you in kind?". Mr Clarke said no. The passenger said "I'll suck you off if I don't have to pay. I don't have any money anyway." Mr Clarke again said no, stopped the vehicle and told the man to get out, which he did. Nothing sexual had actually happened. Mr Clarke said that incidents of this kind had happened to him before in his time as a taxi driver but only with women passengers. He turned around and drove home. He didn't think to report it.
23. He said that the article in the Liverpool Echo reminded him of the previous incident. After he spoke to the driver's wife on the phone he went round and told Tony the newsagent about it. The driver's wife sent him pictures of the lad taken from social media. At the time Mr Clarke made his first statement to the defence solicitors he had not seen the photographs. The lady sent them after that. Mr Clarke received them on his mobile phone in colour. No-one else was present at the time. He recognised the photos as being of the lad he had picked up: he was sure of that (the photographs are of the complainant in the applicant's trial). He did not hear about the trial while it was going on. He is satisfied that the man in the photographs was the same man who had offered to suck him off.
24. He was asked when he had retired as a taxi driver and thought it was about September 2016: he had been working for Diamond Cabs. It was put to him that by this time Diamond Cabs were no longer licensed and said that at the time he retired he had his own license and was no longer working Diamond. He thought that the incident with the passenger picked up from the Marriott hotel must have been in 2015.
25. Mr Gibson put to him that Whiston is eight miles east of Liverpool City Centre, whereas Mossley Hill is only three miles east of the centre. Counsel asked why a resident of Mossley Hill who wanted to be collected from the Marriott hotel and taken home to Mossley Hill would call a cab office based in Whiston. The witness said he was already in the city centre when he got the message asking him to pick up Steven.
26. He said that he had never seen Steven before. Steven was seated behind the driver and started the conversation. At one stage he pulled on the driver's seat which made Mr Clarke turn around and tell him to stop. The passenger said he had no money. Mr Clarke said that they would go to a bank machine so that the passenger could draw out money: this was when the passenger said he would suck Mr Clarke off. He said he had not reported the incident either to the cab company or to the police. In fact, the first person he told about it was Tony, the newsagent, sometime later when the newspaper article appeared. The newsagents has ceased trading now. He could not say exactly when he spoke to Tony, but the driver's wife contacted him about two weeks after that and he made his first statement to the solicitors about 4 weeks after speaking to Tony. All he could say about Tony was that he was a middle aged Asian shopkeeper who said that the driver's wife was a friend of a friend.
27. He was asked about how he and the cab company dealt with the money he received from fares. He said he was supposed to hand over all the cash. He was asked what happened when he had taken a passenger on a journey and then the passenger left without paying. He replied that he would tell the company. On this occasion he told the company that the fare hadn't paid but he didn't tell them why.
28. Mrs Mohammed then gave evidence. She had been present at her husband's trial but did not give evidence. Sometime after the trial she received a phone call from Mr Clarke. She didn't know him. He said that he had experienced an incident similar to her husband's as reported in the newspaper. It involved a man called Steven. At that point Mrs Mohammed stopped him because she knew it could affect the trial. She referred him to her husband's solicitor. She told the solicitor about the call and said Mr Clarke would contact him. She didn't herself speak to Mr Clarke again. However, she sent him pictures of the complainant from a website – the Facebook page of a Liverpool club. When present at the trial she had not seen the complainant's face directly, because he gave evidence from behind a screen, but she did watch his video recorded interviews from the public gallery so she knew what he looked like. She had not been present when Mr Clarke went to see the solicitors and she doesn't know him at all. Her view was, if it wasn't him, then it wasn't.
29. When Mr Clarke rang her, she hadn't been expecting a call. A number came up on screen that she didn't recognise. She was at home with her children. The caller said he was a taxi driver and he had been in a similar incident. He didn't go into detail. That was the first she had heard of another taxi driver saying something similar had happened to him.

The test to be applied

30. As noted very recently by this court in R v Pabon [2018] EWCA Crim 420, the test to be applied in a case of this kind is to be found in Dial v Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660, where Lord Brown of Eaton-under-Heywood (giving the judgment of the majority) said at [31]:

"…….the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the jury to convict…."

Discussion

31. It is important to note that the case as it went before the jury was not simply one man's word against another. The prosecution were able to rely on the significant change in the defendant's case between his police interview and the service of his defence case statement. In interview he had said that the complainant put his hand down the applicant's trousers and groped his penis and testicles. There was no suggestion of oral sex. However, as already noted, the defence statement and the evidence given by the applicant before the jury were that the complainant had performed oral sex on him, to which the applicant had consented out of curiosity. The prosecution also placed emphasis on the complainant's distressed state when phoning his friend KQ and when speaking to a police control room operator on the telephone shortly afterwards.
32. Thus, at the conclusion of the trial, the prosecution case was in our view a very strong one. The combination of lies in interview; the improbability of the defendant allowing a passenger to perform oral sex on him "out of curiosity" on the defendant's part and then masturbating in front of the passenger; and the distressed state of the complainant very shortly afterwards made for a formidable case, even against a defendant of previous good character.
33. The fresh evidence from Mr Clarke was superficially plausible, consisting as it did of the evidence of an apparently independent witness that a passenger in Mr Clarke's minicab called Steven living in the Mossley Hill area had apparently offered Mr Clarke oral sex in lieu of a fare. However, this evidence suffered from the following defects.
34. Firstly, although the newsagent "Tony" who was the vital link bringing Mr Clarke into the story was allegedly "a friend of a friend" of Mrs Mohammed, the defence have not produced him as a witness, nor is there any satisfactory explanation (for example, in the form of a Gogana statement from the defence explaining how the fresh evidence was obtained) of what efforts have been made to trace him, for example by Mrs Mohammed identifying the friend she and "Tony" had in common.
35. Secondly, there is a fundamental discrepancy between the evidence of Mrs Mohammed and Mr Clarke. Mrs Mohammed stated in evidence that Mr Clarke telephoned her out of the blue, and gave a vivid account of the surprise it caused her. Mr Clarke, however, said in his oral evidence that the first contact between them was that Mrs Mohammed rang him. This cannot simply be a failure to recall detail.
36. Thirdly. the identification of the complainant by Mr Clarke from a photograph sent to him by Mrs Mohammed is in our view worthless for a number of reasons:

(a) Mr Clarke had little more than a fleeting glance of his passenger. He says that his passenger was sitting behind him and never came into the front seat. After the alleged offer of oral sex was rejected the passenger left the vehicle.

(b) There was no attempt to obtain from Mr Clarke any details of what the passenger looked like before he was shown a photograph of the complainant.

(c) There was no attempt to allow Mr Clarke to see the photograph of the complainant together with at least 8 other photographs of similar looking men.

(d) There was an interval of at least 19 months, and probably longer, between his encounter with the person in his minicab and identifying him from photographs of the complainant.

37. In the post-Turnbull era Codes of Practice have been developed to circumscribe the way in which the police carry out an identification so as to try to prevent miscarriages of justice by erroneous identifications.  The failures in the procedures carried out in this case when compared against the requirements of the Code underline the danger of relying on the identification by Mr Clarke.  We have grave doubts as to whether the identification here adds anything at all to the defence case.
38. Fourthly, Mr Gibson is correct to point out the improbability of a passenger at the Marriott Hotel in Liverpool City Centre wishing to go home to Mossley Hill (three miles from the centre) telephoning a local company based in Whiston (eight miles from the centre). It is just conceivable that this could have been done if Diamond Cabs at the time had a city-wide reach and Mr Clarke just happened to be in the city centre; but it remains improbable.
39. Fifthly, Mr Clarke initially gave evidence that he didn't tell the cab company at all about the passenger not paying on arrival in Mossley Hill, but offering oral sex instead; when asked a question about this by the court, he said he told the cab company that the fare had run off though he had given no other details.
40. Sixthly, the incident in the present case, according to both prosecution and defence, started with the issue of oral sex before any issue of payment arose, whereas the incident described by Mr Clarke concerns an alleged offer of oral sex in lieu of payment of a fare.
41. Putting all these factors together, each of the three members of this court takes the view that the fresh evidence raises no reasonable doubt as to the guilt of the applicant. We therefore consider that it fails the tests set out in section 23(2)(a) and (b) of the 1968 Act and should not be formally received in evidence.
42. Mr Ford realistically accepted that if that were to be our decision, the fresh evidence being the only ground for seeking permission to appeal, permission to appeal against conviction should be refused and we so order.

Sentence

43. The judge imposed a sentence of seven years six months comprising a custodial term of six years, six months and an extended licence period of one year under section 236A of the Criminal Justice Act 2003 (providing for an extended licence period of one year to be added to the custodial term in certain circumstances). The custodial term of 6½ years after a trial was plainly justified, and it is not suggested otherwise. However, the ever-vigilant staff of the Registrar of Criminal Appeals have noted that the Recorder made a technical error which was not picked up by counsel on either side. Because the victim of this offence was not a child under 13, section 236A was not applicable. We therefore grant permission to appeal against sentence, allow the appeal against sentence; quash the sentence imposed by the judge, and substitute a sentence of imprisonment for six years, six months. To that extent only the appeal succeeds.