QUEEN'S BENCH DIVISION
1 Bridge Street West
B e f o r e :
|- and –
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Thyne appeared on behalf of the Defendant.
Crown Copyright ©
HHJ WAKSMAN QC:
"The Crown's case was as follows. On 5th June 2004 the appellant went to the complainant's home at Royal Oak Road in Wythenshawe. Once inside the house he made advances and violent threats towards her. He pushed her on to a chair and she begged him 'not in front of [the child]'. The complainant and the child screamed at the appellant to stop, but he punched her, threatened her with a knife and forced her upstairs with the child in her arms. He then raped her in the bedroom as the child looked on. That rape was count 1 on the indictment, the charge on which the jury was unable to agree."
"In the bedroom C eventually fell asleep and the appellant raped the complainant on two further occasions, those being counts 2 and 3. On those occasions the complainant put up little resistance as she knew the appellant 'would not have listened' (to use her words). The appellant then left then left and the complainant went to neighbours and told them what had happened."
The judgment then deals with earlier offences.
"There were several particularly unpleasant features about the offences on which the appellant was convicted: first, they were committed at a house where a 5 year old child was present. The evidence was she was asleep on the occasion of the second of the three rapes and present but elsewhere in the house on the third occasion. She was extremely upset and wide awake at the time of the first incident in respect of which the jury was unable to agree. But even on the basis of what happened on the second and third occasions, it is a particularly unattractive feature of these offences that the parties' 5-year-old child present. Second, there was not one but two offences committed over a substantial period in the course of the evening."
"Had the jury convicted of all three offences, the appellant would have been looking at a substantially greater determinate element than 8 years and, as Mr Bennathan accepted, a life sentence would in those circumstances have been inevitable."
"…when you committed these rape offences, you were prepared to use your own powers to overbear that woman. I do not ignore the fact that the jury had difficulty so that they could not reach a verdict on count one, and I do not approach this case on the basis you entered there that night to rape. If you had been convicted on count one, that would have been the conclusion, but the jury have not convicted you on to count one and therefore I do not draw that inference, but what I am satisfied of is that whilst there that night, you did rape your ex-partner on two occasions and you overbore her will. It was what you wanted, and no regard for anyone else."
He later went on to say that rarely had he seen anyone so clearly traumatised as she was as shown during the course of the first video interview.
"I bear in mind that there was no weapon used. There were threats, there was a repetition of the offence, in the sense that there were two offences of rape that night. I have had regard to the way in which they were carried out, and as I say, I do not take the view that I should sentence you on the basis that you went there that night to rape."
"Up until the Automatic Lifer panel hearing on 23rd September 2008 you had always denied that you raped your victim but in your evidence that day you accepted that your victim may not have been consenting".
And then this:
"Of great concern to the Panel is that the index offences were committed by you when on licence for previous offences and with a specific condition that you did not approach your ex-partner."
"On a OASys assessment in November 2009 you were assessed as posing a high risk of harm to a known adult and a medium risk of harm to children due to the index offence being committed in front of your 5 year old daughter."
"…due to the index offences being committed against the daughter's mother -- he does not believe that his daughter will want contact with him. There is a possibility that Mr Henry's licence condition due to his daughter witnessing the offences."
"This is of grave concern to the panel because even when you gave evidence yourself there were inconsistencies as to the events. There was, in the panel's view, a vagueness as to what happened downstairs before the offences in the bedroom. Also whether your daughter was awake and witnessed the rapes or one of them or whether she was asleep throughout the offences. The panel considered until you give a full and clear account of what took place that night the panel cannot be satisfied that, despite the courses you have attend, your serious potential risks can be dealt with and reduced."
"there still remain three risk factors: Attitudes supportive of sexist roles and abuse of women; sexual jealousy and alcohol/ drug use"
"The fact that you were however prepared to breach the trust under the previous licence and again in failing to disclose his previous partner's pregnancy for three months causes concerns to the Panel that in open conditions without the underlying required openness of the index offences..."
"In view of your own lack of complete openness about the index offences the Panel had no doubts that they could not recommend a move to open conditions. It may well be that further openness may lead to consideration of further work."
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in cooperating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down the precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
"It is abundantly apparent from the papers in the parole dossier, which were before the Defendant that the jury were unable to reach a verdict on Count 1, including the events that led to the two rapes, which is precisely why this particular element of the index offence had to be explored in detail."
Mr Jagadesham: (Inaudible) your Lordship has already said that the decision should be quashed. It may be my learned friend can assist in terms of whether we need a (inaudible) order or not?
Mr Thyne: Could I just have a moment, please?
HHJ Waksman: Yes. (Pause)
Mr Thyne: Thank you very much, my Lord. Could I ask my Lord (inaudible) quashing the decision. And, secondly, an order that the defendant shall invite the Secretary of State to refer the claim and case back to the parole board?
HHJ Waksman: That is how it has to be done, is it?
Mr Thyne: It is helpful if it is done that way, please.
HHJ Waksman: Shall invite the Secretary of State to refer the case back to the parole board, right?
Mr Thyne: Upon receiving such a referral the parole board will convene an oral hearing.
HHJ Waksman: Is that part of the order?
Mr Thyne: Certainly in the past we have had that as part of the order. I think it is helpful if my Lord is minded to do so.
HHJ Waksman: (Inaudible) right, I am just going to dictate the order so that the associate can produce it. Paragraph 1: the decision of the defendant to refuse the transfer of the claimant to open conditions contained in the letter dated 7 October 2010 is hereby quashed. 2. The defendant shall invite the Secretary of State to refer the claimant's case back to it and upon receiving such a reference the defendant shall convene oral hearing. Thank you.
Mr Jagadesham, are there costs questions here?
Mr Jagadesham: My Lord, there will be. Just briefly in respect of the relief, can I just make one point? Your Lordship will know from your Lordship's own experience of parole cases that there are constant delays with cases being listed and (inaudible) court be prepared to say. There is a concern from the claimant's that if, for example, this case cannot be referred back to parole board it will simply going into a (inaudible) process, whereas we have a decision about this from October last year, we are now in May of 2011, so (inaudible) request that with all due expedition should be inserted into paragraph 3.
HHJ Waksman: When would there have been the next parole board --
Mr Jagadesham: Eighteen months.
HHJ Waksman: Eighteen months, is it?
Mr Jagadesham: Yes.
Mr Thyne: My Lord, I am certainly prepared to concede the words "as soon as possible" should be inserted (inaudible).
HHJ Waksman: I think that is good enough, is it not?
Mr Jagadesham: Indeed, my Lord, yes.
HHJ Waksman: So in the order I have just made where I said "upon receiving such a reference the defendant shall convene an oral hearing as soon as possible", so that comes at the end of paragraph 2. Right.
Mr Jagadesham: My Lord, in respect of costs I do ask that the parole claim (inaudible) claimant's costs of the proceedings.
HHJ Waksman: Yes.
Mr Jagadesham: I am not sure whether my learned friend wishes to address your Lordship first on that.
Mr Thyne: My Lord, the normal order would be that our costs following the mark follow the events. They are publicly funded costs subject to a detailed assessment if not agreed.
HHJ Waksman: Thank you very much. Publicly funded costs here, so if I say (inaudible) wrong, the defendant shall pay the claimant's publicly funded costs --
Mr Jagadesham: I do not think it requires (inaudible).
HHJ Waksman: Claimant's cost.
Mr Jagadesham: Yes.
HHJ Waksman: Of the claim, such costs to be the subject of a detailed assessment if not agreed.
Mr Jagadesham: My Lord, yes. If we could have an additional paragraph please that (inaudible) detailed assessment on the defendant's publicly funded costs.
HHJ Waksman: (Inaudible) assessment, is it?
Mr Jagadesham: It is. I believe it is to cover anything that would not be caught by the previous costs order.
HHJ Waksman: So 4. There shall be a detailed assessment of the claimant's publicly funded costs.
Mr Jagadesham: My Lord, yes I am grateful.
Mr Thyne: Thank you.
HHJ Waksman: Thank you both very much indeed.