Butt, R v [2005] EWCA Crim 805

Case No 2004/0967/D3[2005] EWCA Crim 805
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 17 March 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE DYSON
MRS JUSTICE DOBBS
HIS HONOUR JUDGE FINDLAY BAKER QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
EJAZ BUTT
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS J MCINTOSH appeared for APPELLANTMISS G ETHERTON appeared for CROWN
J U D G M E N T

LORD JUSTICE DYSON:

On

[1]23rd January 2004 in the Crown Court at Croydon before His Honour Judge Pratt and a jury, the appellant was convicted of rape and sentenced to six years' imprisonment. He appeals against conviction by leave of the single judge. The ground on which he was given leave to appeal was that the judge prevented his counsel, Miss McIntosh, who appears today as she did below, from conducting a proper cross-examination of the complainant by unfairly imposing a time limit. The appeal raises an important issue about trial management.[2]The complainant alleged that the appellant had raped her. The real issue was consent, although the appellant also denied full penetration.[3]The prosecution case was that from March 2003 the complainant, a Polish woman aged 20, was in England on a six month visa. She and her boyfriend rented a room. A friend of her landlord arranged to find a cleaning job for her and on 5th April 2003 she met the appellant for whom she was to clean. The appellant took her by car to his house. They went to the main bedroom and he suggested that she start cleaning there. He asked her to take off her top. She said she did not want to do this, but she took it off. The appellant then gave her £50 which she thought was payment up front for the cleaning. He had said she would be paid £5 an hour. He pushed her onto the bed and started to remove her denim top. When she told him to stop he said:
"It's not a cleaning job but a different kind of job"
. He embraced her, removed her clothing and started kissing her. She started to cry. She tried to push him away and asked him to stop. He asked her to be "good" which she thought meant that she should be submissive. She thought he might kill her. He put saliva on his finger and inserted it into her vagina. He then had sexual intercourse with her without a condom. She said that she did not agree to it and she was terrified. Afterwards he asked her to lie face down, which she did, and he sat on her. When the telephone rang he let her get up and wash. He said she could continue to visit him and earn good money which she took to mean for sex. He left and she picked up the £50 that he had given her and left herself. She reported the matter to the police and gave them £40 of the £50. She was subsequently diagnosed as suffering from chlamydia, which she had not suffered from before.[4]She was cross-examined by Miss McIntosh. We shall come to the cross-examination shortly since it lies at the heart of the appeal.[5]The prosecution also relied on the evidence of a forensic scientist, Dr Wilkinson, who said that on high vaginal swabs there was a profile which was a match for the appellant's DNA.[6]The appellant gave evidence. He said that Mr Hussain came to him with the complainant and her boyfriend asking for cleaning work for her. On 5th April the appellant offered the cleaning job to the complainant at the rate of £5 an hour. He took her to his flat. She said that she did not like cleaning and took off her blouse. She said: "Give me £50". She took her suit off and he gave her the £50. She jumped on the bed and said "Come". He undressed and joined her on the bed, but she failed to get him excited. He lay on top of her and had "pretend sex". In cross-examination he said that the complainant was a manipulative woman. It was humanity which made him help. She initiated all the sexual behaviour. He never forced her.[7]As we have said, the central ground of appeal is that the judge prevented Miss McIntosh from cross-examining the complainant properly with the result that the appellant was denied a fair trial. It is therefore necessary to analyse the cross-examination that took place.[8]It started shortly after the luncheon adjournment on 20th January. The first half hour of the cross-examination is transcribed at pages 26 to 38 of the transcript. The judge interrupted only once during this period. It was of course legitimate for counsel to ask a number of questions to set the scene but in our view the questioning that took place during this first period of the cross-examination went far beyond anything that could be said to be reasonably necessary to set the scene. Despite the protestations of Miss McIntosh in her submissions to us this morning, we are quite unpersuaded that many of the questions that she asked were of any relevance whatsoever to the issues that the jury had to decide. The flavour is caught by the following passage which is one of a number of examples of a similar kind, and we read from page 28 line 24:
"MISS MCINTOSH: When did you start to look for accommodation? A. After we arrived here. Q. Why were you looking for accommodation? A. Because we wanted to be independent and have a room for ourselves only. Q. What sort of accommodation were you looking for? A. A small room. A hotel is very expensive. Q. Did you look into any bed and breakfasts? A. No. Q. The accommodation that you did stay at, where you say the landlord, Mr Hussain, met you? A. Uh huh. Q. That was 168 Norbury Avenue. Is that right? A. Yes. Q. How many rooms were at that premises? A. Um, maybe five or six. Q. And were they all occupied? A. Yes, but later on half of them were free. Q. Do you know the people who occupied the other rooms? A. Yes. Q. Did you know a Mr Zorbitz? A. Perhaps the first name, if you could. Q. That is the only name I have. A. Could you repeat, please. Q. Zorbitz? A. No, it doesn't ring a bell."
At page 33

the judge intervened and the following exchange occurred (line 5):

"THE JUDGE: Miss McIntosh, I think we ought to get onto the case soon. MISS MCINTOSH: The background information that I am seeking is not purely futile, it accords with my instructions. I will move along. THE JUDGE: Yes, but I think let's get relevant soon, please."
There then followed many questions occupying five pages of the transcript about the complainant's accommodation arrangements and Mr Hussain, including at page 38 line 5, this exchange:
"Q. Mr Hussain, can you just describe Mr Hussain for us? A. Yes. A short man, dark complexion, arm long hair. Q. Say that again? A. Arm-length hair, dark, slightly curly. Q. Any facial hair? THE JUDGE: Does it matter, Miss McIntosh? You have been cross-examining for over half-an-hour. Not every single word in your proof is necessarily relevant in cross-examination. MISS MCINTOSH: Your Honour, yes. (To the witness) Mr Hussain, who was also present, did he participate in the conversation between yourself and his friend? A. Yes he did. Q. Do you recall whether he was looking at the TV? A. Yes. I remember the TV was on. Q. When you spoke to the friend of Mr Hussain, did you discuss with him making application to the Home Office so that your visa would allow you to study and work in the country? A. No. Q. I suggest to you that that did take place and there was conversation of that nature. Were you asked about the employment that you did in Poland? A. Yes."
[9]Despite the judge's gentle pleas, Miss McIntosh continued to ask more background questions at pages 39 to 41 of the transcript. She finally got round to dealing with the events of Saturday 5th April 2003 at page 41. There then followed a detailed cross-examination of the complainant about the events of that day, and in particular her allegations of rape. Counsel for the prosecution in her skeleton argument has described the cross-examination as to the allegations as "intense, detailed and repetitious". We think this is a fair assessment. During this part of the cross-examination, which occupies 24 pages of transcript, the judge interrupted only about half a dozen times and his interruptions were merely clarificatory. No complaint has been made about them and quite rightly so. Eventually at page 65 the following exchange took place:
"THE JUDGE: Miss McIntosh, you have put the defendant's case very clearly. You now seem to be concentrating on matters which appear to me to be relatively unimportant. Will you please finish your cross-examination within ten minutes. MISS MCINTOSH: Your honour, I will try to finish my cross-examination in ten minutes. THE JUDGE: You will finish your cross-examination within ten minutes, please."
Between pages 65 and 68 Miss McIntosh continued her cross-examination. She asked detailed questions about the complainant going naked to the bathroom after the alleged rape, about her taking the appellant's credit card which had his signature on it, about her journey home, including a question about a lift to Tesco's, and so on. At page 68

the judge said:

"Three minutes, Miss McIntosh."
There followed a few more questions about the £50 and then at page 69 this exchange (line 18):
"THE JUDGE: Time's up, Miss McIntosh. Would you bring matters now to an end. MISS MCINTOSH: May it be recorded that that is where I am told to stop my cross-examination. THE JUDGE: I said bring it to an end now. MISS MCINTOSH: Your honour, I cannot bring it to an end. If I am told I must stop here, that's it."
Miss McIntosh submits that the judge prevented her from exercising her duty as defence counsel to cross-examine a prosecution witness in accordance with the principles stated by the Chairman of the Bar following R v McFadden 62 Cr.App.R 187 at 193, and in particular this: "It is the duty of counsel when defending an accused on a criminal charge to present to the court, fearlessly and without regard to his personal interests, the defence of that accused. It is not his function to determine the truth of falsity of that defence, nor should he permit his personal opinion of that defence to influence his conduct of it... This duty includes the clear presentation of the issues and the avoidance of waste of time, repetition and prolixity. In the conduct of every case counsel must be mindful of this public responsibility".[10]Miss McIntosh would emphasise the duty to present the defence fearlessly. That is obviously very important. But so too is the obligation to avoid wasted time, repetition and prolixity. It is no part of the duty of counsel to put every point of the defendant's case (however peripheral) to a witness or to embark on lengthy cross-examination on matters which are not really in issue. It is the duty of counsel to discriminate between important and relevant features of a defence case which must be put to a witness and minor and/or unnecessary matters which do not need to be put -- see Kalia 60 Cr.App.R 200 and at Archbold 8-113.[11]We are in no doubt that this cross-examination was repetitious and prolix and that it did involve a good deal of wasted time. The issues in this case were within a narrow ambit. As we have said the only real issue was whether the complainant had consented to sexual intercourse with the appellant. Miss McIntosh spent far too much time in getting to this real issue. In our view the judge showed remarkable patience in forbearing to intervene until page 33 of the transcript and then again saying nothing until page 38. Miss McIntosh then tested the complainant's case and put the appellant's version of what happened in great detail and with some repetition between pages 41 and 65. In our judgment the judge was quite right to intervene at page 65 and seek to bring the cross-examination to an end. It was clear that by this time Miss McIntosh had dealt with the central issue in the case and had now moved on to matters which were relatively unimportant. In these circumstances, the judge was right to take the view that Miss McIntosh should be given only a short further period in which to complete her cross-examination. We are not saying that it should become a routine feature of trial management that judges should impose time limits for evidence in chief or cross-examination of witnesses. If counsel perform their duty properly this should rarely be necessary. But where, as unfortunately happened in this case, counsel indulges in prolix and repetitious questioning, judges are fully entitled, and indeed we would say obliged, to impose reasonable time limits. If there were further salient points that Miss McIntosh wished to put to the complainant she did not make the best use of the 10 minutes that remained to her after the judge intervened, nor did she indicate to the judge that she had further important points which it would be impossible for her to put in such a short time.[12]Miss McIntosh now says that there were further salient points which she was unable to put in the 10 minutes that were allotted to her. What were these points? The first is that she was instructed by the appellant that the complainant had made a telephone call to him asking him for money in order that she should drop the case against him. We agree that this would have been an important point for counsel to put to the complainant in her cross-examination of him. We interpolate that the appellant did not in fact in his evidence say anything about this telephone call. Counsel submits that he was unable to do this because of a fear of being criticised as she had not put this during her cross-examination of the complainant. It seems to us, however, that counsel had ample opportunity to put this point to the complainant in the course of the approximately two hours during which she conducted her cross-examination. The explanation by Miss McIntosh for her failure to do so was that she was adopting a chronological approach to her cross-examination: since the alleged telephone call took place after the point in the history at which her cross-examination was stopped, she did not feel able to put this important point to the witness. We cannot accept that this is a reasonable explanation for failing in the course of a two hour cross-examination (where there was effectively a single issue) to put that point to the complainant.[13]The second alleged salient point relied on by Miss McIntosh is that she was unable to put to the complainant that she would have been able to telephone her partner's mobile telephone while she was still at the appellant's premises and immediately after the incident. It is not entirely clear to us what the significance of the failure to make such a phone call is, but if it was regarded by Miss McIntosh as a salient point, then there was ample opportunity during her cross-examination for her to put it. We would additionally observe that, if counsel was indeed following a chronological approach to the cross-examination, then by the time she was finally stopped by the judge she had passed the point at which the complainant had left the premises.[14]The two other points relied on by Miss McIntosh seem to us to be of less significance. In short, we are unpersuaded that Miss McIntosh was prevented by the judge from putting these points if she felt that it was appropriate she should put them to the complainant.[15]The need for fair but effective management of criminal trials has been increasingly recognised in recent years. The point was made very clearly by this court in R v Chaaban [2003] EWCA Crim. 1012 and needs to be reinforced. Giving the judgment of the court in that case,

Judge LJ said this:

"35. We can now turn to the grounds of appeal arising from the judge's management of the case. The trial judge has always been responsible for managing the trial. That is one of his most important functions. To perform it he has to be alert to the needs of everyone involved in the case. That obviously includes, but it is not limited to, the interests of the defendant. It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting. Finally, the judge should not overlook the community's interest that justice should be done without unnecessary delay. A fair balance has to be struck between all these interests. ... 37. We must also consider whether the case was somehow rushed, a submission which gives this court the opportunity to highlight a significant recent change, perhaps less heralded than it might have been, that nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence. 38. In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary evenhandedness and flexibility as the interests of the justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does. We find that nothing in the criticisms of the way in which the judge dealt with the timetable, and nothing in the remaining complaints about his management of the case which would justify us interfering with the decisions made while exercising his discretion as the trial judge."
[16]Miss McIntosh seeks to distinguish Chaaban. She points out that in that case the trial judge had not imposed a guillotine on the evidence of any particular witness. She identifies a number of other factual differences between the two cases as well. The importance of decisions such as Chaaban is the statement of principle that the entitlement to a fair trial is not inconsistent with proper judicial control over the use of court time. The factual differences between this case and Chaaban are not material. The management of a trial involves the exercise of judgment and discretion. This court will not interfere with a decision made by the judge when exercising this function unless it is plain that it has resulted in unfairness. This is for the simple reason that the trial judge is in a far better position than this court to decide what fair and sensible trial management requires in any given case. In the present case, we are in no doubt that the trial judge's decision to impose a time limit on the cross-examination of the complainant was entirely justified. It did not result in any unfairness to the appellant. Miss McIntosh had ample time to cross-examine the complainant fully and indeed did just that. We do not accept that there were salient points which she was prevented from putting to the complainant. For all these reasons this appeal is dismissed.

Cited in 1 later judgment