SB, R. v [2010] EWCA Crim 2620

[2010] EWCA Crim 2620

Case No 2009/06182/C1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 27 October 2010

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE GROSS

MR JUSTICE BUTTERFIELD

and

MR JUSTICE RODERICK EVANS

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- v -

Between

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Mr G Arnold appeared for Appellant

Miss C Gardiner appeared for Crown

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J U D G M E N T

[1]On 21 October 2009 in the Crown Court at Chelmsford before His Honour Judge Lodge and a jury the appellant (now aged 44) was convicted by a majority of 11:1 of rape. On 8 January 2010 he was sentenced to imprisonment for public protection. The period of two years and 145 days was specified as the minimum term. He was also required to comply with various other statutory provisions. He was acquitted of four counts of sexual activity with a child. He appeals against conviction and sentence by leave of the single judge.

[2]The focus of the appeal against conviction may be summarised as follows: first, whether the judge was wrong to reject a submission of no case to answer; secondly, whether the judge was wrong in not giving a direction to the jury that caution had to be exercised before convicting on the uncorroborated evidence of the complainant in the particular circumstances of this case. The principal focus of the appeal against sentence is whether the imposition of a sentence of imprisonment for public protection was appropriate and in any event whether the specified term was manifestly excessive.

[3]We shall deal first with the appeal against conviction. The complainant, who was 15 years old at the time, was then an in-patient at the Longview Psychiatric Unit. She had been diagnosed as suffering from a complex post-traumatic stress disorder underpinned by an attachment disorder (a difficulty in forming attachments to others with whom she deals).

[4]On the morning of 16 May 2008, the day of this incident, the complainant was arrested on suspicion of criminal damage the previous night. She was taken to Colchester Police Station. In the early evening she ran away and shortly thereafter encountered the appellant in a car park area. She started to cut herself. The appellant, whose command of English was limited, stopped her and the two had a conversation.

[5]Despite the various matters of dispute in the case, a great deal of the evidence was agreed and there was a "core framework" around which everyone could work. On 16 May 2008, at about 5.45pm, the appellant was making his way from the car park. At about 6pm the complainant ran away from the police station. Very shortly after 6pm she was identified on closed-circuit television making her way towards the car park. At about 8.10pm she was further identified on CCTV. At some stage after that she telephoned the father of a friend who recalled that that took place at about 8.15pm. She did not mention rape during that call, but he recalled her crying and being upset. He recalled her saying that she needed her grandmother "because people have been doing things to me; they have been hurting me. I need my grandmother before I die". At 8.59pm she telephoned her great-grandmother. That call was traced by the police who found the complainant and returned her to the psychiatric unit. It is clear that she was returned there at about 10.03pm.

[6]Some time later during the course of that night she spoke to her great-grandmother from the psychiatric unit. She told her that she had been raped. The next day the police attended and enquiries commenced.

[7]The account the complainant gave of the incident was broadly along these lines. We have already referred to the two encountering one another and a short conversation taking place. The appellant had been helpful to begin with. He then started to kiss her. He touched her breasts and vagina over her clothes. He then exposed her breasts and licked them before turning her around so that she was on her hands and knees. Her trousers were pulled down. She said that the appellant (and this went to other counts of which he was acquitted) placed his fingers in her vagina and anus. She was moved back to face the appellant. Her breasts and vagina were licked and her vagina was penetrated by his penis. The incident ended and the appellant walked off. Later that evening she made the calls to which we have already referred. She made the first complaint at a later stage but on the same night.

[8]On the following day, 17 May, the complainant was medically examined and provided a video-recorded interview. The results of the medical examination revealed that there was no semen on the internal and external vaginal swabs, which meant that she had not had recent sexual intercourse with internal ejaculation. However, the possibility of recent sexual intercourse without ejaculation could not be excluded. An unspecified amount of semen matching the appellant's DNA was detected at the back of the complainant's underwear. The scientist concluded that the back of her knickers had been in contact with the appellant's wet semen. Separately, bloodstaining detected on the outside front back and inside both front pockets of the appellant's trousers matched the complainant's DNA.

[9]The appellant's description was circulated. He was arrested on 22 May. His house was searched. Clothing matching that seen on CCTV was seized. He was interviewed twice. He denied the offences in the first interview and made no comment in the second.

[10]The prosecution case was that the appellant had raped the complainant. The defence case was that he had encountered the complainant. He had admittedly engaged in sexual activity, but such activity was initiated by the complainant. He had not penetrated her and he had reasonably believed that she was aged 16 years or over.

[11]This was a case in which the jury had to evaluate the account of both the complainant and the appellant. There were no other material witnesses of fact.

[12]In addition to the forensic evidence which we have mentioned, there was evidence from a Dr Hughes who had been treating the complainant in the psychiatric unit. He detailed the drugs which the complainant had been taking. He had not seen any circumstances of disinhibition if she failed to take the drugs, and he was not aware of any sexually inappropriate behaviour at Longview.

[13]Dr Clapham was the psychiatrist treating the complainant. Initially, he was instructed as a single joint expert to deal with questions from both the prosecution and defence regarding the complainant's mental health, the potential impact of her condition upon her behaviour in the course of the incident, and her reliability as a witness. His report was dated 4 June 2009. The defence became concerned. They took the view that they could no longer agree to Dr Clapham as a single joint expert as he had failed and was disinclined to address the issue of the witness's reliability. They made a successful application to the court to instruct their own expert, Mr Rogers, a psychologist. In due course Mr Rogers provided a report dated 19 August 2009. There was a further report from Dr Clapham thereafter.

[14]In his evidence Dr Clapham said that the complainant was sometimes attention-seeking, but no more so than others in her position. She was manipulative within the ward context, but not someone who would initiate sexual contact. Her episodes of removing her clothes in the unit should not be seen as being sexual. It was either within a dare-type context or a mechanism to keep people away. She was an immature 15 year old who had been abused. She did not come across as sexualized in demeanour. She was more like a child who wanted comfort and companionship. He saw her as a shy teenager. As to her interview, there was an element of shame and in some ways she blamed herself for what had happened. It was clear that she knew the difference between fantasy and reality, truth and lies. There had been a trauma as demonstrated by the flashbacks.

[15]In cross-examination Dr Clapham accepted that there were instances where there were some aspects which did not match what had happened. This was not, though, someone making up stories which they knew to be false. There might have been exaggeration in the past on the ward, but the complainant never came across as seeking to include delusional or fanciful matters. There was a consistent demeanour throughout her interview.

[16]Mr Rogers (the psychologist called by the defence) gave evidence. He spoke of the complainant having a complex post-traumatic stress disorder underpinned by an attachment disorder which significantly affected her behaviour towards others. Based on records and his own observations, the complainant was threatening and aggressive towards others. She was manipulative and attention-seeking on her own terms. She had a history of risk-taking behaviour. Her perception of others and their behaviour was distorted. She was emotionally dysfunctional and overreacted to situations she could not understand.

[17]The complainant's mental health difficulties might lead to distorted memories and less reliable recall. Her difficulties made her misinterpret social interactions; this distorted her memory of those interactions. She recalled her distortions rather than what had happened. This meant that what she said became unreliable. The interview had not helped her recall. There had been little free narrative. When she was put on the spot she was not able to come up with a realistic version of events. She provided a mixture of accuracy but was unable to give detail about some aspects of the events. If she was being wholly accurate she ought to have been better on the detail in the course of her interview.

[18]In his report Mr Rogers twice said:

"In my opinion [the complainant] is an unreliable witness as a result of her mental health difficulties."

In cross-examination, however, he admitted that he had no reason to doubt the truth of what the complainant had said to him.

[19]A submission of no case to answer was made. The basis of the submission concerned the second limb of R v Galbraith

(1981) 73 Cr App R 124

, which reads:

"(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury." 20. "

I do not consider it is so inconsistent that it should be withdrawn from the jury at this stage. It is for a jury to work out what they make of [the complainant]. It is for a jury to consider whether they consider the acts as she describes them -- bearing in mind the findings they make about any trauma that she was undergoing at the time of those acts -- were both physically possible and how they happened. It is quite right to say there is no corroboration, but Mr Arnold concedes quite properly there is no need for corroboration. It is right as the Crown concede that there are certain questions which may appear to be leading. But again providing the jury are given sufficient direction so far as that is concerned, it is a matter for the jury to consider their weight. 21. I have borne in mind the expert evidence. There is again a conflict within the expert evidence, and I do not find for my stance that Mr Rogers was so convincing as to [the complainant's] lack of reliability that I should take his evidence as a factor which would cause me to withdraw the case from the jury. So far as the jury are concerned, they will be directed to look at Mr Rogers' evidence with care and to view the evidence of [the complainant] with considerable caution because of it. But having given them the warning that they must look at the expert evidence including that of Mr Rogers, and having given them the warning that they should view [the complainant's] evidence with considerable care, it remains a matter for them as to how they deal with that evidence."

[20]The second ground of appeal involves a failure to give a direction that caution was to be observed when considering the evidence of the complainant. To evaluate that ground we start with the summing-up. The judge gave a very clear direction as to rape (pages 5-6), of which no complaint is or could be made. He gave an equally clear summary of the facts. He indicated the common ground and the aspects in which the rival cases diverged. He drew the jury's attention to an assortment of matters going to the complainant's very difficult background, which raised the issue of her reliability. Moreover, he specifically drew the jury's attention to concerns as to the complainant's reliability. At pages 13-14 of the summing-up he said:

"You do not need to decide what happened with .... [a previous incident which had been introduced into evidence]. It is, however, something which with the other admissions as to [the complainant's] background that you may -- and I stress the word 'may' because it is a matter for you -- take into account when assessing the two core questions which you may think arise in this case in relation to [the complainant]. The first of those is: would she act in the way as it is suggested that she has done by the defence, in effect initiating sexual behaviour, behaving in the way that she did in the car park? And secondly: can you treat her as a reliable witness?"

[21]The judge then gave an impeccable and helpful direction as to both the nature and scope of the expert evidence, followed by a very careful summary of that evidence. In the course of doing so he dealt directly with the complainant's reliability and the expert evidence on that topic (pages 18 and following), summarising for the jury the "core assertions" made by both Dr Clapham and Mr Rogers. Having done that, the jury were given a break and counsel were asked whether they had any issues. Both counsel answered "No". It is common ground that neither then nor at any stage did Mr Arnold say anything as to the missing direction of which he now complains. In that regard at the very conclusion of the summing-up the judge again raised the question (at page 35) of whether counsel wished to add anything.

[22]When he returned to his summing-up the judge gave a very fair summary of the evidence of both the complainant and the appellant. The judge concluded with the summary of the rival prosecution and defence cases. He said:

"You have got the two respective cases. The prosecution case here is that you can put to one side the medical evidence. [The complainant], say the prosecution, is potentially a reliable witness. She is no different -- despite her mental health background -- from any 15 year old. It is a task which you are there for. Weigh up and assess her evidence. Weigh up and assess the defendant's evidence. Are you sure that the allegations have been proved? Yes, say the prosecution. The defence say it is far from that simple. Take as your starting point the cogent evidence of Mr Rogers. You have -- when you come to consider [the complainant] -- someone who behaves in a way that a 15 year old might not be expected to behave. She has a problem with recall. She has a problem with exaggeration. Set that as your framework, and you see the case in a different perspective. You cannot be getting close, say the defence, to being sure on her account. They say when you look at her impulsive and unusual behaviour, the version of events given by the defendant -- whilst at first blush being surprising -- is not one which you should reject out of hand, and certainly when looking at that version of events it is not an incredible tale. You are not judging him on the appropriateness of what he did, say the defence. You are saying whether you are sure these allegations are proved, and you cannot be."

[23]We turn to the rival cases. For the appellant, with regard to the submission of no case to answer, Mr Arnold, who appeared before us as he did at the trial, emphasised a number of matters. He underlined the inherent inconsistencies and implausibility of the complainant's uncorroborated evidence. He pointed to a lack of physical and forensic evidence supporting the allegation of rape. He referred to the difficult matters in the complainant's background and to the evidence of "inappropriate sexual behaviour and sexual risk taking" by the complainant in the past. He placed great store on the unequivocal evidence of Mr Rogers that the complainant's evidence was unreliable. He submitted that that evidence gave rise to the likelihood that she may have acted sexually inappropriately with a man much older than her. He submitted, too, that that evidence was not countered by the Crown's expert who was not adequately independent. Moreover, that expert had failed to address the issue of reliability. In his written submissions he relied on the decision in R v Cannings

[2004] 2 Cr App R 7

, in support of the submission that it was inappropriate to proceed with a trial where there is a serious disagreement between experts on the critical issue in the case and where there is no additional cogent evidence.

[24]In oral submissions today Mr Arnold made it clear that he was not saying that simply because the complainant had psychological difficulties her evidence was not to be accepted. His submission was more directed than that: there were inherent difficulties with the case; there were no injuries; there was no corroboration; and there were all these matters of background. The evidence as to the semen did not support the case of penetration. He placed much store on the evidence of Mr Rogers and his overall submission was that the case should not have been left to the jury in the absence of corroboration.

[25]The essence of Mr Arnold's submission on the second ground of appeal was that the judge had promised a direction as to the caution necessary when considering the complainant's evidence in the absence of corroboration, but that he had not given such a direction. Mr Arnold's submission was that there was no need with a formula; the summing-up had not dealt fairly and properly with this matter. This was particularly so given the facts of the case as already outlined and the need to differentiate between rape and the consensual sexual activity that the defence did not dispute. Granted the discretion given to the judge by R v Makanjuola

[1995] 2 Cr App R 469

, at page 472, this was a case where it was Wednesbury unreasonable not to give such a direction.

[26]In a very helpful written skeleton argument (we did not in the event need to trouble Miss Gardiner orally), the Crown submitted that the judge was entitled to leave the case to the jury. Such inconsistencies as there were did not require him to withdraw the case from the jury. The defence criticism of Dr Clapham was strongly resisted. Moreover, there was the evidence of the appellant's semen on the complainant's underwear which was not easy to reconcile with the appellant's account, and there were the lies he told when he was first interviewed.

[27]So far as the directions were concerned, true it was that the judge had not given a direction in the very terms he had foreshadowed in his ruling dismissing the submission of no case to answer and which we have already recited. However, given the summing-up, no such direction was necessary. As the Crown put it in their skeleton argument:

"Although a specific direction was not given, the jury in the Crown's submission were well aware that the complainant's account was being criticised as exaggerated, inconsistent and implausible. To give a further direction about taking care when considering it would have been excessive."

To single out Mr Rogers' evidence would have been undesirable as well as unnecessary. Makanjuola did not require a direction here. In any event, even if a direction had been required, on the summing-up as a whole the conviction was not rendered unsafe.

[28]We can state our conclusions briefly as to the appeal against conviction. First, we deal with the submission of no case to answer. This was a case which, in our judgment, the judge was amply entitled to leave to the jury. To put it to one side, Cannings is far removed from the facts of this case. Here there was factual evidence supporting the conviction (that of the complainant herself). Cannings is best understood as summarised in Archbold 2010 at paragraph 10-67:

"In R v Cannings .... a case of the alleged murder of a baby, it was said that if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often by unwise, and therefore unsafe, to proceed; and this was particularly so, in a field of learning, where the experts were still at the 'frontiers of knowledge'. Cannings is not, however, authority for a proposition, in cases where the issue is whether a child was the victim of a deliberate killing by its mother or had died from natural, even if unexplained, causes, that whenever there is a genuine conflict of opinion between reputable experts, the prosecution should not proceed, or should be stopped, or that the evidence of the prosecution experts should be disregarded; in Cannings, there was nothing to establish unnatural as opposed to natural death and the basis of the case depended on inferences by one group of experts which were disputed by another reasonable body of medical opinion: R v Kai-Whitewind [2005] 2 Cr App R 31, CA."

In short, the appellant obtains no assistance from Cannings. Mr Arnold was right not to press that authority in his oral submissions.

[29]That there were difficulties with the prosecution case was apparent, but those were difficulties to be considered and resolved by the jury. That Mr Rogers was of a clear view as to the complainant's reliability, so far as that question was in truth a matter for him, was one of the many matters to be weighed by the jury. It was not a reason, especially when contradicted by Dr Clapham, to withdraw the case from the jury.

[30]As to Dr Clapham, without expressing any opinion on some of his phraseology, we have some sympathy for his reluctance to be drawn into a direct response on reliability and for confining the expert's role more narrowly. We also have particular sympathy with him when confronted by what was an over-lengthy questionnaire. Overall, in agreement with the submissions advanced on behalf of the Crown, we can see no proper basis for criticising the judge's decision to leave the case to the jury. He was entitled so to do.

[31]We turn to the criticism based on the alleged failure to give the direction foreshadowed in the ruling rejecting the submission of no case to answer. The real issue for the jury was this: had the prosecution made the jury sure that the appellant took advantage of a vulnerable distressed young woman? Or was it, or might it have been, the case that his account was true -- an account of admitted sexual activity which did not involve penetration, prompted and encourage by a manipulative, attention-seeking, unreliable 15 year old?

[32]We have earlier outlined the summing-up at some length. In our judgment it was both fair and lucid. The question of the complainant's alleged unreliability was fairly and squarely brought to the jury's attention. In the circumstances, even if it was unfortunate that the judge did not deliver a direction in the specific terms he had himself foreshadowed, there was no need so to do. He had already said more than enough to direct the jury's attention to the central question of the complainant's reliability or unreliability and hence the need for caution in considering her evidence. In this regard there is no magic in a particular form of words. It was for this reason that there was no gap in the summing-up and no doubt why Mr Arnold at the time did not think it appropriate to complain. Had it then struck him that the judge had overlooked a matter of this nature, we have no doubt that he would have raised it. There is no criticism of him that he did not. The reason for not doing so was that any additional wording was unnecessary.

[33]The discretion imparted to trial judges by Makanjuola is a wide discretion. No set form of words is required. We are not remotely persuaded that the failure by the judge in this case to give a direction in the specific wording foreshadowed gives rise to any Wednesbury error. In any event, even had we been wrong about that, we would have no doubt that the judge's failure to give such a direction did not begin to render the verdict unsafe. Thus for the reasons given we dismiss the appeal against conviction.

[34]We turn to the appeal against sentence. The question of sentence must be approached on the basis that the appellant was guilty as charged. It is also fair (insofar as it matters) to keep in mind that the appellant was acquitted on the other counts referred to at the outset. It is therefore right to proceed on the basis that the appellant believed the complainant to be over 16.

[35]When passing sentence the judge said that the offence was not sufficiently serious to justify a life sentence. However, having taken into account the nature and circumstances of the offence, the contents of the pre-sentence report, but not previous offending in Poland due to lack of detail, the judge concluded that there was a significant risk to the public of serious personal injury caused by further similar offending. The appellant was prepared to take advantage of someone who was at a disadvantage, distressed and vulnerable. The victim was 15 years old, was clearly self-harming and vulnerable, and the offence took place in broad daylight. There was a risk that similar exploitation would arise in similar circumstances. A sentence of imprisonment for public protection was required by law. But for the indeterminate sentence, a sentence of eight years would have been passed. Working from that starting point he arrived at the minimum term we have already indicated.

[36]Taking the issues raised in reverse order, we entertain no doubt as to the length of the sentence passed should this be a case where a determinate rather than an indeterminate sentence was appropriate. First, this was the rape of a girl aged 15. Secondly, the sentence passed, taking eight years as the starting and in the event finishing point, conformed to the guideline. Thirdly, it was a rape in a public place by an older man on a young woman, admittedly in a vulnerable, distressed condition. Even allowing for the fact that he believed her to be over 16, this was a bad case. Fourthly, on no view was the length of sentence manifestly excessive.

[37]We turn therefore to the question of whether this was an appropriate case for the imposition of imprisonment for public protection. That involves the question of whether the dangerousness requirement in section 225(2)(b) of the Criminal Justice Act 2003 was satisfied, and, if so, whether the judge's exercise of his discretion to pass a sentence of imprisonment for public protection can properly be challenged.

[38]The defence case was in essence this. There was no record or history of such offending. This was what might be termed an opportunistic offence. The sentence of imprisonment for public protection involved looking to the future. There was no reason to suppose that a determinate sentence would not suffice. There was no or no sufficient basis for the judge's observations as to the risk that would bring the appellant within the provisions of the Criminal Justice Act governing dangerousness. Mr Arnold is right that the judge relied, and relied solely, on the facts of the offence in question. There was no history of such offending. It does not, however, follow that the dangerousness requirements were therefore incapable of being satisfied. Some offences and offending speak for themselves. Was that the case here?

[39]In seeking to answer that question we do, of course, look to the future and include in our consideration both the length of any determinate sentence that would be passed and the alternatives. Imprisonment for public protection has rightly been described as draconian and in effect a measure of last resort.

[40]In our judgment this was a bad case, but it does not follow that upon conviction every bad case and every serious offence results in the imposition of an indeterminate sentence. We take into account the fact that the judge conducted the trial and saw the appellant, including for an extended period when he gave evidence. However, it is also right to note that any assessment made by the judge was made of the appellant through an interpreter. Moreover, the pre-sentence report contained no reasoning which supported the imposition of an indeterminate sentence, other than the mere fact that the appellant denied the offence. Logically mere denial of an offence does not equate to satisfying the criterion of dangerousness in the Criminal Justice Act 2003.

[41]In our judgment, after anxious consideration, we are not satisfied that the criterion of dangerousness was met. In the circumstances there was no or no sufficient basis for the imposition of a sentence of imprisonment for public protection. In those circumstances the appeal against sentence must to such extent be allowed.

[42]We quash the sentence of imprisonment for public protection. We substitute in its place a determinate sentence of eight years' imprisonment (less the period of 585 days already served) which we are satisfied, will deal adequately and appropriately with this shameful offence. To such extent, and such extent only, this appeal is allowed. _________________________