Thomas v Regina [2008] EWCA Crim 183

[2008] EWCA Crim 183Case No 200606099 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HIS HONOUR JUDGE BING
T20067400
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/02/2008
Before
LORD JUSTICE PILLMR JUSTICE PITCHFORDMR JUSTICE WALKER
Between
Joseph John ThomasAppellantReginaRespondent
Ms Levitt (instructed by the Registrar Criminal Appeal Office) for AppellantMr Reece (instructed by Crown Prosecution Service) for RespondentHearing Hearing date : 18 January 2008
Judgment
[1]On 20 October 2006, at the Crown Court at Snaresbrook before His Honour Judge Bing, and a jury, Joseph John Thomas was convicted of 3 counts of rape contrary to Section 1 of the Sexual Offences Act 2003 (Counts 1 to 3) and a count of doing acts tending and intended to pervert the course of justice (Count 4). On 11 December 2006, he was sentenced to 8 years imprisonment concurrent on each of counts 1 to 3 and 2½ years consecutive on count 4, giving a total sentence of 10½ years imprisonment, less 241 days spent on remand. Thomas appeals against conviction, with leave of the single judge on several grounds, and renews his application for leave on other grounds. Leave is granted.[2]The complainant and the appellant met in January 2005. A sexual relationship began the following month and in March they began to live together. The complainant and the appellant had a vigorous sex life, some of it being described as “highly charged, rampant sex”. The complainant sometimes dressed, at the appellant’s request, in high heeled shoes and skimpy clothes. The appellant was more dominant in sex, which she enjoyed. However, she complained that there were a number of rapes.[3]On 19 December 2005, the complainant called the police about an alleged act of violence by the appellant towards her brother. When they arrived, she claimed that the appellant had raped her. The appellant was remanded in custody. While in prison he frequently contacted the complainant by telephone and she visited him several times.[4]The complainant subsequently visited the police station in order to withdraw her rape allegations. She was advised to reflect on her decision. She visited the appellant several more times. On 29 December 2005, she wrote a letter retracting her allegations of rape and violence. On 5 January 2006, the complainant wrote a further letter stating that her allegation of rape on 19 December 2005 had been false. She said that she had made a false allegation because she was upset and angry at the appellant for not returning her mobile phone. She also said that she had in the past discussed with the appellant a fantasy of being raped and had asked him to rape her and ignore any appeal she made. She had acted out such fantasy on 19 December 2005 and on seven previous occasions.[5]On 12 January 2006, the complainant was arrested on suspicion of perverting the course of justice. On the same day, the allegation of rape against the appellant was discontinued though he was told that the case could be reopened if further evidence came to light. He was released from prison. The complainant picked him up and within 2 days they had resumed cohabitation.[6]On 7 March 2006, the complainant was made subject to a formal caution for attempting to pervert the course of justice by making false statements that she had been raped. Relations deteriorated and the parties separated on 7 April 2006. The appellant moved out of their home and stated that the complainant owed him money.[7]However, on 12 April, he visited the house and subsequently penetrated the complainant’s mouth, vagina and anus with his penis (counts 1 to 3). They travelled to a supermarket where the complainant told the assistant at the customer help desk that the appellant had beaten her up. She then told her that she had been raped. The appellant said that she owed him money and he claimed to have met her so that he could be paid.[8]The prosecution case on count 4 was based on the appellant constantly calling the complainant while in prison and asking her to withdraw the allegation. He advised her to write a letter stating that the allegation was false. In relation to counts 1 to 3, it was alleged that the April rapes were committed by way of punishment for putting the appellant into prison in December 2005. In support of the allegation of lack of consent, it was claimed that anal sex had not been a normal part of the relationship.[9]The complainant gave evidence of the events up to and on 19 December 2005. On that day, she was raped and it was extremely brutal. The appellant had pleaded with her not to proceed with the prosecution. He spoke to her in an intimidating way and she decided to tell the police that she would not go ahead with the prosecution. She claimed that the appellant was controlling her through fear: “He basically said to me that I need to do whatever it takes to get him out of prison and he was just controlling my every move”.[10]When she visited the appellant in prison, he said he was sorry and that his behaviour would improve. He begged her to get him out of there. Following her first letter to the police, he advised her to write another letter and asked her to contact a named solicitor, which she did. In her letter she stated that the rape allegation was false but said in evidence that this was not in fact the case. The draft of the second letter to the police had been discussed with the solicitor.[11]As to the later events, the appellant’s behaviour was claimed to have become threatening and aggressive by 7 April. The complainant ended the relationship and the appellant moved out. He begged her to change her mind and she was sympathetic to the extent that they met for lunch and had consensual sexual intercourse on 10 April.[12]On 11 April, she told him that the relationship was over. On the following day, the appellant called the complainant very many times on the telephone and sent her 12 text messages. He visited her home and was threatening and angry. A Sky engineer was present for part of the time. The appellant was violent toward her. He said:
“So, I’m a rapist am I”
. He then brutally raped her, in the three ways already mentioned. He demanded money.[13]In evidence, the appellant denied that rape and role play were part of their relationship prior to 19 December 2005. He said that the complainant liked him to be forceful in sex. He had not raped her on 19 December. The complainant visited him on several occasions in prison while he was there on remand. He had not said anything about withdrawing the allegations. He said:
“All I wanted to do was to find out what was going on.”
She said that she would contact the solicitor. The solicitor she saw did not represent him at that time, though she did so later.[14]On his release, the appellant returned to the complainant because he still cared for her. He constantly asked her why she had made the rape allegations. On 7 April, he told the complainant that he wished to end their relationship. He asked for the money she owed him. There was consensual sexual intercourse on 10 April but then it was “definitely all over”. On 12 April he called the complainant many times because he wanted his clothes and his money. That was the only reason he went to the house. He was trying to win her over and hugged her. The vaginal, oral and anal sex were all consensual.[15]For the appellant, Ms Levitt, who did not appear at the trial, submits that count 4 was misjoined with counts 1 to 3. Further, there was a material misdirection in relation to count 4 in the judge’s failure to direct the jury that the appellant had a possible defence of lawful excuse. It is further submitted that, having permitted the counts to be joined, the judge failed properly to direct the jury in relation to the 2005 rape allegations. It is submitted that, if they were to rely on them in relation to the allegations in the indictment, they should first apply the criminal burden and standard of proof to the evidence adduced about them.[16]It is also submitted that the judge failed adequately to direct the jury about the importance of the complainant’s evidence about “rape fantasies” in relation to the appellant’s belief in consent. Complaint is made about the conduct of trial counsel for the defence. Reliance is placed on her failure to object to the joinder of counts or to seek severance of counts, her failure to draw the defence of lawful excuse (count 4) to the attention of the judge, her failure to deploy available evidence, including that of the appellant’s solicitor, and, in relation to count 4, failure to make sufficient use of the complainant’s interview under caution. No application has been made to call as fresh evidence that of the solicitor, and no statement of hers is available.[17]Privilege has been waived. Trial counsel has responded that the question of joinder and of severance was considered at the trial. The 2005 allegations, alleged to be false, were going to be part of the defence case in any event and no application was made. That course would have been followed even had count 4 not been on the indictment. Counsel says that there was consultation with the appellant, who was an intelligent and articulate man, at all times in relation to the decisions to be taken as to how the defence was conducted.[18]Ms Levitt submits that count 4 was not founded on the same facts as counts 1 to 3 and did not form or were part of a series of offences of the same or a similar character (Rule 9, Indictment Rules 1971, now Rule 14.2(3) of the 2005 Rules). Counts 1 to 3 were concerned with discrete allegations of rape alleged to have occurred on 12 April, several months after the alleged perversion of the course of justice. A quite different offence was alleged in count 4.[19]Mr Reece, for the respondent, says that he took over as prosecuting counsel only shortly before the trial. Had he been instructed sooner, he would have advised recharging the appellant with the 2005 rape offences and including them, as well as count 4, in the indictment, with counts 1 to 3. He felt “anger and frustration” that there was insufficient time to take those steps.[20]Mr Reece submits that count 4 was not misjoined. It arose, as did counts 1 to 3, out of the failing relationship between the complainant and the appellant. The rape counts were directly linked with the prosecution for the earlier rapes and with the circumstances, the subject of count 4, in which that prosecution came to an end. Mr Reece also relies on the evidence that on 12 April the appellant said “So I’m a rapist am I”, as assisting in establishing a nexus.[21]In R v Ludlow [1971] AC 29, Lord Pearson stated, at page 39: “In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose there has to be some nexus between the offences. Counsel criticised the wording of passages in judgments appearing to say that there cannot be similarity of character without a nexus. But I think this criticism, if it has any validity, applies only to the wording, and not to the substance, because when regard is had to the requirement of a series of similar offences it is right to look for a nexus. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series”.[22]As to severance, Ms Levitt relies on Section 5(3) of the Indictments Act 1915 which empowers a court to sever if it is of the opinion that “a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment”. As to that, Lord Pearson contemplated, at page 41G, that the offences charged may be such that “a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced”.[23]When summing-up to the jury,

the judge stated:

“Count 4 is of a quite different nature and character to those in counts 1 to 3 and covers a completely different period”
. No submission that there had been a misjoinder was made by counsel then appearing.[24]In our judgment, count 4 was misjoined. There would have been a nexus between the 2005 allegations of rape and the facts relied on in count 4. Probably, there would have been a sufficient nexus between 2005 alleged rapes and April 2006 alleged rapes, although we do not finally decide the point. There was not, however, a nexus between a charge of perverting the course of justice based on alleged pressure to withdraw allegations of rape in 2005, which have not been charged, and rape allegations based on events several months later.[25]The legal direction on count 4 was, in any event unsatisfactory, a point we shall consider when deciding other issues raised. We go on to consider whether the convictions on counts 1 to 3 are safe and do so on the assumption, without deciding the point, that we may consider the other counts notwithstanding the misjoinder (R v Newland [1988] QB 402, cf R vLockley [1997] Crim LR 455).[26]Shortly before inviting the jury to retire, the judge gave them this direction: “Therefore, in relation to Count 4, please concentrate on the real question that has to be decided which is whether the defendant implied (sic) improper pressure in order to persuade or compel [the complainant](a) to withdraw the allegations of rape and in(b) falsely state to the police that the allegations were untrue because she had made a statement previously to the police that the allegations were true. The allegation in Count 4 is that improper pressure in the way that I have defined the offence to you was made to her to falsely state that they were untrue. That is the issue you have to concentrate on, not to decide whether or not, in fact, the complainant was raped in December because you are not asked to make that decision and there hasn’t been a trial on those rapes. I hope you follow the point I have just made to you. On reflection, I don’t think I made that point quite as clearly as I should have done yesterday”.[27]In his earlier direction, the judge, though he used the expression “improper pressure,” went on to say: “As a matter of law, members of the jury, any inducement of a witness to refrain from giving evidence in criminal proceedings is in law unlawful. The question for you to decide is whether in this case the defendant acted in this way”.[28]At least two points arise from those passages in the summing-up. The first is in relation to count 4 itself. The appellant’s case was that he believed the 2005 allegations of rape to be false. He did no more than have general discussions with the complainant, with whom he was then again on good terms. He wanted her to tell the truth. While there was evidence from which the jury could infer the intention necessary to establish the offence in count 4, some recognition should, in the summing-up, have been given, in our view, to the statement of principle in R v Kellett (1975) 61 Cr App 240. Giving the judgment of this court, Stephenson LJ stated, at page 249:
“With this authority in mind we would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence. Secondly, with this among other authorities in mind, we think that however proper the end, the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means”
. There was evidence capable of giving rise to the application, in the appellant’s favour, of those principles and the possibility should have been left open, with an appropriate direction in the summing-up. The conviction on count 4 is quashed.[29]Count 4 having been quashed, the other issue raised by the cited passage near the end of the summing-up is whether, on counts 1 to 3, the direction to the jury that they did not have to make a decision on whether the complainant had been raped in December, renders the verdicts on counts 1 to 3 unsafe. The jury had been told earlier in the summing-up that they had to hear something about the background and history of the relationship between the complainant and the appellant. However, the jury were not directed that complaints of rape in December were not in themselves evidence of rape in April. They were expressly directed that they need not make a decision about the truth of the December complaints. There was, in our judgment, a real danger that, though following the direction that they need not decide whether the December complaints were true, the jury would have treated the making of the complaints as evidence supporting the April allegations.[30]Moreover, on count 4, the “falsity” direction was put as an essential ingredient ((b)) of the offence. Earlier in the summing-up, the (a) and (b) specified in the passage in the summing-up (following the particulars of offences in count 4) had been put as alternatives. The reports to the police were false only if the complainant had in fact been raped in December, yet the jury were directed not to decide whether she had been raped in December. The jury must have been confused about how to approach the evidence, and confused not only on count 4 but as to the impact of the direction on their consideration of the other counts.[31]The source of the problems in this case was the joinder of count 4 with counts 1 to 3. It left the judge, and those conducting the defence, in a difficult position which led to the errors identified.[32]In our judgment the convictions on the rape counts, even if not invalidated by the misjoinder, were unsafe. We need not consider in further detail the complaints against trial counsel. To defend a case of perverting the course of justice in relation to rapes not charged along with quite separate rapes which were charged presents obvious and unnecessary difficulties. It is surprising that submissions were not made about the contents of the indictment. There is a difference between admitting earlier material merely as a means of challenging the complainant’s credibility on rape charges and assuming the burden of defending in a trial of rape a charge of perverting the course of justice based on the withdrawal of rape allegations not now charged. The court has, notwithstanding lack of objection at the trial, found it necessary, in order to assess the quality of the verdicts, to consider the issues arising from the indictment as put.[33]In context, we would not have found the convictions unsafe on the separate ground, also alleged, that no direction was given in relation to “fantasy rape”. The circumstances in April 2006, and the state of the relationship between the parties, were quite different from those in late 2005, when the fantasy rape suggestions are said to have been made. That is not an indication as to what course would be proper at any retrial.[34]It was for the reasons given that, at the conclusion of the hearing, the court allowed the appeal, quashed the convictions and directed a retrial.