J, R. v [2010] EWCA Crim 2422

[2010] EWCA Crim 2422Case: No: 201002768 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Date: FRIDAY, 30TH JULY 2010
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE KENNETH PARKER
HIS HONOUR JUDGE BEVAN QC
(SITTING AS A JUDGE OF THE CACD)
v
Between
JComputer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Miss M Smullen Appeared for AppellantMr D Scutt Appeared for CrownJ U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal which raises the not unfamiliar difficulty from the point of view of appellants as to verdicts which depend upon the credibility of one witness where the jury convict on one and acquit on another. The appellant was a young man of 15 at the time with certain learning difficulties and was convicted of false imprisonment on 21 April 2010 at Harrow Crown Court.[2]The case was brought against him and the allegation was that he had raped a young girl of similar age, just 15, over a year before, on 25 February 2009. The allegation made by her was that she had been forced to go on a bus with four young males, a distance of about a mile, and had there been raped both orally and vaginally. She had first complained to a school friend who recorded the complaint that she had been walking home and had been forced into an alley way with two boys where she had been sexually attacked and forced to do something. She had subsequently complained to the doctor and the police.[3]Unfortunately the case was badly handled by the police. Sensibly a police officer had asked the bus company to check CCTV footage not of the particular bus because it was not, known which bus it was, but of the route taken by the appellant. The information -- and it was no more than this that emerged -- was that they could find no film of a girl going on the bus accompanied by four boys, but whether they had information of a girl going on the bus with one boy never emerged, because the one thing the police failed to do was to warn the bus company to retain copies of any possibly relevant CCTV. If there was going to be a prosecution and there was nothing shown of this girl accompanied by one boy then that would have been powerful evidence to assist the defence, because by the time that this defendant was arrested he was saying he had gone on the bus, but alone with the girl, voluntarily. In those circumstances the CCTV evidence, one way or the other, was of particular importance.[4]Nothing happened following the complaint until her clothing was examined. When it was examined semen was found on her under garment and DNA traceable to this appellant was found. That obviously took some time and he was arrested.[5]A relatively inexperienced officer undertook the best evidence interviews of the girl. It was accepted by the Crown that due to her inexperience that officer breached a number of guidelines. In particular it emerged that she had suggested things to the complainant that had not in fact been said. The culmination was that by the time of the trial there were very substantial and major inconsistencies in her evidence. She had described being orally penetrated and vaginally penetrated by a number of the boys and not just this appellant, but when she was originally interviewed she had made no mention of this appellant, the only black boy, putting, as she put it, "his dick in her privates" until this was suggested by the police officer. She had suggested that a mixed race boy had done this on 25 February 2009, but a day later she told Dr Ajay that two mixed race boys had penetrated her vagina, but had made no mention of the only black boy, this appellant, doing that.[6]During the course of her interview by PC Phillips she told the officer that the black boy had put his finger inside her vagina. This was the first time she had said this. Earlier on 25 February she had said that it was a mixed race boy who had done so.[7]At school, when she first complained about this, she had said that one of the boys had told her to as she put it "suck his dick" and said that if she did not agree he would put his finger in her private parts. She had refused and the boy had walked off. In the account she gave to the doctor she said that a mixed race boy had digitally penetrated her.[8]In her original statement she had given no descriptions of the boys. On 25 February, to the Sexual Offending Investigating Team officer she had said that the black boy, that is this appellant, had put his penis in her mouth. She told the doctor that one of the, as she put it, Afro-Caribbean suspects touched her breasts under her bra. In the account she gave to the doctor she did not accuse the black male of having done anything else.[9]In the account to the sexual offences investigating team officer on 25 February she said that someone had touched her breasts over her clothing. In the interview conducted by PC Phillips she said that the black boy had looked at her breasts, put his hands under her shirt and touched her breasts underneath. He moved his hand when she told him to stop.[10]In her account given to the sexual offending investigation team officer she said that a person had told the boys to stop and she had left and gone home. According to her in the interview with PC Phillips she said that the black boy had led her out of the bushes into which she had been taken and gone towards the main road.[11]She had given a number of different accounts as to why she had got on the bus with the boys. She had, in her first statement, said that she was going home, been approached by four boys who called her sexy and cute, she said okay and got on the bus, where they asked her to lift her top. They had held her hand and forced her to get on the bus and she did not know where she was going. She had referred to going to an alley way where they started to ask "if I wanted to suck his cock."[12]A different account was given in the logged record. She had been given a number of pieces of information about which different buses to get on and she described getting off the bus when they told her to do so and being taken down a dark alley. Later on she is recorded in the same log as saying she was asked to follow them. She said she had done so because she did not know where she was going. The sexual approach was repeated. She refused and said she felt very scared and very harassed.[13]The closer account to that which she gave finally was given in the interview with PC Phillips a month later on 15 March, the following month, where she said she had been told to get on the bus and subsequently get off it.[14]All those inconsistencies were referred to fairly by the judge and all form a list of inconsistencies in the account she gave that was placed before the jury.[15]The appellant gave evidence to the effect that all that had gone on was wholly voluntarily, and only involved him. He had met the complainant at the bus stop, which was his normal bus stop for going home, at the beginning of February and they had talked and she had smiled at him and they had chatted amicably. She had apparently asked if she could "hang out with him", but he had declined because he was busy. On the day of the allegation they had met again. She had again repeated the request and he agreed. So they got on the bus together. She was perfectly happy in his company and no one else was with them. They got off, walked through an underpass to a little grassy area where they hugged, cuddled. She kissed his face, pulled down her tights. She asked if he had any condoms. He said no. She then unzipped his trousers and masturbated him. He ejaculated on her hand. It was to that he attributed the finding of semen and DNA on her pants. She had pulled her pants and tights back up after she had refused a tissue.[16]The judge, in a very fair summing up, correctly pointed out to the jury that they had to consider the two allegations that remained for them to consider separately. One allegation of rape had been withdrawn from the jury as a result of the breaches by the police officer of the rules for conducting best evidence interviews, but the judge made it clear that although the counts had to be considered individually the case really stood or fell on their acceptance or otherwise of the complainant's evidence. He said:
"You must give separate consideration to the two counts. You may think in effect that it is unlikely that there is going to be separate verdicts in the sense of guilty of one, not guilty of the other. It is a matter for you, but you may think that they stand and fall together. The important thing to remember is separate verdicts, separate considerations to them."
That is an entirely conventional direction to the jury, but of course it does leave them open to reach separate conclusions according to whether they think a witness is reliable in some aspects of her evidence but unreliable in relation to others.[17]The judge then went on to explain to them the allegation of false imprisonment. It turned entirely upon the jury accepting as the truth that there were four boys who forced her to go on the bus and on the journey to the secluded area through the underpass. If they were not sure about that then they had to acquit. He then invited them to consider the absence of the CCTV and pointed out to them how powerful a point the defence had in the absence of the CCTV which for all anybody knew was entirely consistent with what the appellant had said, and he commented "what a great shame it was that the CCTV was not available." He then dealt with the rest of the evidence, which we have outlined.[18]As we have indicated, the appeal was advanced on the basis that the conviction of false imprisonment but the acquittal of rape were inconsistent. Since the verdicts depended upon the jury being sure that that young girl was telling the truth, if they had doubts about her allegation of rape, namely the oral penetration by this appellant, then how could they be sure that she had been forced to go on that journey by four boys.[19]There was, so it was contended, no explanation for the semen being found on her underclothing if the allegation was that she had been forcibly penetrated by this appellant in her mouth.[20]In our judgment these two verdicts were not inconsistent. It is trite but often repeated in this court that the mere fact that the jury accept the evidence in some respects of one witness but reject it or have doubts about it in relation to another aspect does not demonstrate such inconsistency as would compel this court to interfere. It was not inconsistent for the jury to be sure that she had been forced to go on that journey by four boys, but nonetheless they had had doubts about the nature of the sexual activity, all the more so where the signs of that sexual activity could be seen on her undergarments. In those circumstances we reject that ground of appeal.[21]But the matter does not stop there. The underlying principle that has led the courts from time to time to describe verdicts as logically inconsistent is that looking at those verdicts the court has become satisfied that no reasonable jury applying their mind properly to the facts in the case could have arrived at the conclusions represented by the two verdicts impugned, see R v Durante 56 Cr.App.R. 708.[22]In this case, assisted as we have been by the very fair way the case was prosecuted by Mr Scutt, who bore no responsibility whatever as to the unsatisfactory nature of the investigation, we take the view that there are very severe problems with the conclusion that the jury reached and the safety of the verdict as to false imprisonment. Those who could speak of the events of that day were both young. Both had learning difficulties. The police deprived the jury of a proper opportunity to weigh and test the evidence by the way the investigation was undertaken. Two particular features require emphasis. Firstly that the bus company was never required to retain the CCTV nor was it required to make a careful note of that which was seen when the CCTV was examined. There was no reliable evidence, as there ought to have been, as to what the CCTV showed and no means of checking what was purported to be on that CCTV. True it is that the jury were warned and directed about that, but the full force of that failure cannot have been clear to those inexperienced in such investigations. The second feature of the investigation compounded the difficulties in achieving a fair trial by the failure properly to conduct the ABE interview, conducted as it was some month or so after the events which were described.[23]We have already identified the very substantial inconsistencies in the complainant's evidence, but coupled with this was the suggestion put by PC Phillips in circumstances where no such suggestion should ever have been advanced.[24]We are left with the position that if the jury had properly taken into account those difficulties in establishing what really had gone on that afternoon, bearing in mind that this is a young man without previous convictions, we are driven to the conclusion that no reasonable jury could have concluded that she had been forced to go on that journey by the four boys rather than travelling with just this appellant.[25]In those circumstances whilst we eschew that a difficult phrase "lurking doubt", we have come to the conclusion that this verdict was not safe. We are disturbed by the process in which this case reached the court. That of course is always difficult for a complainant and her family, who have gone through all the rigours of investigation and trial. We have to look at this case on the basis of the information we have received about the investigation and we want to make it quite clear that our conclusions do not reflect in any way upon the complainant herself; we did not hear her evidence, she has had no opportunity to give her evidence before this court and that is why we have sought to emphasise that aspect. But for the reasons we have given we have come to the conclusion that the single verdict on which this young man was convicted was not safe. Accordingly, we shall allow the appeal and quash the conviction.