N & Ors, R. v [2010] EWCA Crim 941

[2010] EWCA Crim 941Case No. 2009/05577/B3, 2009/05552/B3 & 2009/05341/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 22 April 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE DAVID CLARKE
and
MR JUSTICE LLOYD JONES
__________________
- v -
Between
N, D & L__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)__________________Miss H McCormack appeared for Appellant NMiss D Spiro appeared for Appellant DMiss B O'Reilly appeared for Appellant LMr M J Gadsden appeared for Crown____________________J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]These appeals arise out of a most unpleasant incident which took place in October 2008 when a virgin girl aged 14 was subjected to a sexual ordeal by the three appellants, D (now aged 17), L (now aged 16) and N (now aged 18).[2]On 13 February 2009, in the Crown Court at Inner London, L pleaded guilty to one count of attempted rape of the girl (count 4) and one count of aiding and abetting rape (count 6). On 5 March, at the same court, D pleaded guilty to three counts of rape of the girl (counts 1, 5 and 8). They were two counts of vaginal rape and one count of oral rape. On 5 August 2009, N was convicted by a jury in a trial presided over by Her Honour Judge Faber. This was a retrial. He was convicted of aiding and abetting rape (count 6) and false imprisonment (count 9). Three further counts were ordered to lie on the file in the usual way. Thus it is, on the basis of either the guilty pleas or the jury verdicts, that this unfortunate girl was raped three times by D (twice vaginally and once orally); that L tried unsuccessfully to rape her, but participated in one of the rapes committed by D; and that N also aided and abetted the same rape by D.[3]In view of some observations we shall be making shortly, it is fair to record that Judge Faber took over the conduct of this trial at the last minute and without any opportunity to study the papers in advance of the hearing.[4]The appeal by N against conviction concerns only his conviction for false imprisonment. The sexual offence does not found the basis of his appeal. L and D do not appeal against conviction. There was an allegation of false imprisonment against each appellant. In reality those allegations and that count were makeweight. Whatever the theoretical position might have been, it is difficult to see how a jury which acquitted any defendant of rape or attempted rape, or of aiding and abetting rape by someone else, would have convicted him of false imprisonment. Although there were counts alleging false imprisonment against D and L, as soon as they pleaded guilty to the sexual offences, the allegation of false imprisonment was quite rightly not pursued. Nevertheless, because N had pleaded not guilty, the allegation of false imprisonment was pursued through to trial and eventual conviction.[5]Following conviction, the appellants were sentenced in the following way: D, for three offences of rape, was ordered to serve an extended sentence of ten years and nine months detention, which comprised a custodial term of seven years and three months and an extended licence period of three years and six months, on each count to run concurrently; L was sentenced to five years five months detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000; and N was sentenced to six years detention under section 91 of the 2000 Act for his involvement in aiding and abetting rape, and for the offence of false imprisonment he was sentenced to eight months detention to run concurrently. In each case an appropriate order was made under section 240 of the Criminal Justice Act 2003 that the time they had spent in custody on remand was to count towards sentence. Each now appeals against sentence by leave of the single judge.[6]The victim of the offences was 13 years old when, via her computer, she started to communicate with D, who was then aged 16. They had never met before. On 24 October 2008 they met each other for the first time. On that day the arrangement was that D would meet the girl, and he did so, on her way home from school at about 3.15pm. By arrangement he took her to the house where N lived. He sent N a message that the girl was due to arrive. He described her (in slang language) as a very ugly girl. N opened the door to D and the girl. Shortly afterwards L arrived. The girl had expected that there would be just herself and D present. They would, she thought, talk, having met each other for the first time after the period of communication via computer, and so come to know each other. She was then confronted with the three appellants. They appeared in the room. Understandably she asked why they were there. D told her that it was so they could take turns. Although she tried to escape, D prevented her from leaving and raped her twice. She fought. She fought so hard that he called for assistance from the other two appellants. One of the vaginal rapes was committed while the other two held her legs so that she could not escape. At one point it appears that N told D to bring the girl to his room when he had finished with her. All three of them pushed her into another room, where D committed oral rape on her. He insisted that she gave him oral sex. When she refused, he threatened to call for more boys to come to the house. At one point he held his hand to her throat. In the course of oral intercourse he threatened to kill her if she bit him. He raised her hopes that she would be allowed to go home, but then told her that after all she could not do so.[7]There followed further humiliation and frightening torment. D started to play with his lighter in the vicinity of the girl's head -- so close that some of hair was burnt. When that happened he told her that it had been unintentional. Some (not all) of this was filmed. The film was later recovered by the police. Whether or not the burning of the victim's hair was unintentional, D could be seen playing with the lighter and laughing as he did so. The plain intention was that the girl should be frightened and tormented. There was certainly recklessness about her safety.[8]L attempted to rape the victim, but she managed to fight him off by kicking out at him. The filming to which we have referred was carried out by L.[9]At various points through this ordeal, quite apart from the fight that the girl had put up, she kept asking to be allowed to go home. Eventually she was told that she could leave. L took her downstairs but, instead of letting her go, locked her in the living room. Ultimately D let her out and she went home.[10]She arrived home at about 6.15pm. She went to her room, where her mother found her leaning against the wall with her head in her hands, her hair dishevelled, sobbing. When her mother hugged her, she could smell smoke, sweat and semen on her. She asked her daughter what had happened. The police were contacted.[11]Police officers visited the house where the ordeal had taken place. They found the three appellants wearing the clothes as the victim had described them to the police. There was other material which eventually produced clear evidence of the involvement of the three appellants in this incident.[12]None of the matters relating to the sexual crimes is relevant to the single area of appeal against conviction, but the factual background of what happened is relevant to the appeals against sentence. Accordingly, we turn to the appeal against N's conviction for false imprisonment.[13]The single point for consideration in the appeal arises from the judge's direction to the jury in her summing-up, and her subsequent directions when the jury asked a question. To understand the question it is important to recognise that it never was, and never had been, the Crown's case that the appellant N had played a purely passive role in this offence. As we have indicated, in relation to the sexual crimes, he had actively involved himself. He had been party to holding the girl to facilitate D's rape of her. In the end, as the convictions show, the jury was sure that he had aided and abetted one of those rapes in precisely the way alleged.[14]In her summing-up

the judge directed the jury on false imprisonment in this way:

"Before you could convict [N] of this offence you would have to be sure that he himself, or by joint responsibility with others, (1) intentionally or recklessly assaulted [the girl]; and (2) unlawfully detained her in the house. Intentionally means knowingly doing an act with the intention that consequences will follow. Recklessly is doing an act with foresight of possible consequences and taking the risk of those consequences." 15. "
Imprisonment means preventing her from leaving the house when she wanted to leave." 16. " .... [this] does not include the alleged holding down during the rapes...." Indeed, the judge repeated the direction: 17. ".... this does not include the alleged holding down during the rapes ...."[15]The jury were puzzled. They sent a question which read:
"With regards to false imprisonment, does taking some part in the events, other than the alleged participation in the rapes, include: (i) not doing anything to let her leave; (ii) remaining silent; (iii) allowing the offence to occur and remaining passive and having knowledge of what was happening?" 19. "
Allowing the offence to occur and having knowledge of what was happening and remaining passive would be sufficient if you were sure of all those three elements [that the jury had identified], only if you were also sure that he intended to participate in the false imprisonment or was reckless as to his participation in it."[16]Some considerable time could be spent in a philosophical discussion about what precisely in legal terms the question posed by the jury was concerned with, and in particular whether in the third point made by the jury, "allowing the offence to occur", they had in mind either one of the rapes, or a rape by one of the others, or N's participation, because it was then under consideration, in the rape by D, or by false imprisonment. It is contended that the direction constitutes a misdirection. The argument in summary is that presence alone is not sufficient to found a conviction for false imprisonment in circumstances like these, although the presence of a particular individual charged with false imprisonment may provide evidence of encouragement. The real area of misdirection is said to arise from the direction that failure to intervene may be sufficient, not only if there is an intention in the mind of the person present during the false imprisonment to encourage others, but also, if present, he is reckless whether or not he is encouraging it.

Indeed, the judge repeated the direction:

[17]It is sufficient for the argument to acknowledge that there may be some force in it. However, we do not have to decide the point and we shall not do so. What, in the end, is the point of all this? None that we can see. Given that the jury was satisfied so that it was sure that the appellant aided and abetted the rape of the girl by D while he held her, so that the rape could take place, we ask ourselves how, notwithstanding any possible misdirection, his conviction for being involved in the false imprisonment of the girl can be unsafe. The short and inevitable answer to that question is that this conviction is not unsafe. The case may have proceeded on a surprising footing, but on the question of safety, and honouring the findings of the jury, we can see no basis for interfering with the conviction. In these circumstances the appeal by N against conviction will be dismissed.[18]We repeat, the count of false imprisonment was makeweight. It was quite unnecessary. There may have been a theoretical basis for including the count in the indictment, but the reality was that any one of the three appellants who was involved in raping the girl, or in the rape by others of the girl, or was party, directly or indirectly, to the rape by others of the girl, was party to her false imprisonment. Anyone who did not become involved, anyone who thought she was consenting, anyone who was not guilty of involvement in any sexual crime in this case would, we believe, inevitably have been acquitted of false imprisonment. The question for the jury was: what had happened to the girl when she underwent her dreadful ordeal and who was involved in it? If the count for false imprisonment had not been included in the indictment, none of the argument by counsel at trial, none of the careful preparation by the judge of the appropriate directions to give in the context of a trial which proceeded on two counts against N, nor for that matter the time the jury spent in considering it would have been necessary. Much unnecessary work was required because of the inclusion of that count, and for what it is worth, none of the resources of this court would have been deployed in relation to something which had little point.[19]Reminding ourselves that Her Honour Judge Faber's involvement with this trial occurred at the very last minute before she had a chance to study the very voluminous papers, we cite this case as an example of the care with which indictments should be drafted. No less important, when it becomes clear that a case is to proceed as a trial, counsel for the prosecution and the judge should reflect on which count or counts should be presented to the jury. This requires close attention to the realities of the case and none at all to the theoretical legal possibilities which may arise. It also requires careful attention to the criminality which has resulted in the case coming to trial, as well as the evidence to support the allegation. Finally, it requires the avoidance of duplication and the risk of unnecessary complications both for the jury and for the judge, and the ultimate wasting of scarce and valuable resources. Unnecessary counts should be stripped out of the indictment. If that does not take place at the plea and case management hearing, or any of the earlier interlocutory proceedings, it must take place when the trial is due to begin and before the jury is sworn.[20]We turn to the appeals against sentence. In her sentencing remarks the judge carefully set out her analysis of the individual features of the case as they applied to each of the appellants. First of all, and unsurprisingly, having narrated the facts, she addressed the impact on the girl. She said:
"[The girl] describes this as a terrifying ordeal, leaving her insecure, constantly afraid, and unable to sleep. She has flashbacks of the pillow over her face, and of her hair being burned. .... It has detrimentally affected her school work, causing her grades to decline. Everything to her seems to be a struggle. She cries uncontrollably, and constantly gets upset."
The judge suggested that it would be difficult to imagine how the girl or her family could ever recover from such an ordeal and its after effects. She bore in mind the impact of this offence on the girl's family, and no doubt in particular on her mother who found her in that distressed, desolate condition.[21]The judge set out the three features of these crimes which she considered made them particularly serious: there were three offenders involved in a series of rapes; all three participated in their different ways in the "sustained attack"; and the victim was but 14 years old and a virgin.[22]Having reminded herself of the broad questions, the judge then addressed the individual features of the appellants. She noted their ages. D had a previous conviction for robbery, for which he was sentenced to a twelve month referral order, so that the offences against the girl were committed during the duration of that order. L was only 15 when the offences were committed and 16 at the date of sentence. He was of previous good character. N was 16 at the time of the offences and 17 when he was sentenced. He had a conviction for an irrelevant offence.[23]The judge then addressed some further features of the case, again with meticulous care. She was not satisfied (because there was insufficient evidence) that the sexual attack was planned before the arrival at the premises of D and the girl. She also noted that there were no bodily injuries found on the girl which the medical practitioner was prepared to attribute to the attacks. On the basis of the pleas accepted by the Crown, L did not commit any full act of rape. He asked for oral sex, but accepted the girl's refusal. He stopped filming her when she made it plain that she did not want it to continue. The judge recognised, in loyalty to the verdicts of the jury, that N had not tried to commit rape. At one point she noted that N had tried to help the girl by responding to her request to hand back her knickers that had been discarded by D on the top of a cupboard. There was also evidence that N had protested at D's conduct with the cigarette lighter. The false imprisonment added nothing to the case. The judge noted the date and occasion of the guilty pleas of L and D. She recognised that in L's case, his pleas were tendered at the earliest possible opportunity. D offered his pleas a little later. She was prepared to give D a significant discount for his guilty plea, but not a full discount.[24]The judge summarised the contents of the pre-sentence report in each case. Reference is made to D's special educational needs. She referred to the "unfortunate background and the sad position" of L's sister. L had demonstrated some maturity while he was in custody. She also took into account the fact that N had effectively stood trial twice and that he had a most unfortunate background. It is unnecessary to set out the details for the purposes of this judgment.[25]The judge then gave a direction to herself which has been the subject of criticism. She said:
".... for the avoidance of doubt I make it clear that I cannot accept the submissions of counsel that I am obliged on the facts of this case to give substantial discounts for youth."
A little later, when she addressed D, she said: 30. ".... in relation to you, no discount for youth is appropriate at all, based on the seriousness of your criminal conduct in this case." Having carefully set out in reasoned terms the details of why she had reached the conclusions that she did and decided to impose the sentences that she proposed to do, she passed the sentences we have indicated.[26]These were very long sentences, but they were very long sentences for very serious offences. The most culpable offender was D. He was aged 16 when they were committed and 17 when he was sentenced. He was not an immature youth. He knew what he was doing and how the girl would suffer. N was much the same age. His involvement was less serious than that of D, although these offences were committed at his home. Of the three, L was the youngest; he was aged 15 at the time of the offence. In the context we are considering, he was less seriously involved in the sexual crime than D. L and D pleaded guilty. L pleaded guilty first and as soon as possible. D pleaded guilty a little later. N did not.[27]It is an old and well-established principle of sentencing that the youth of an offender should normally lead to a lower sentence. It is to be found in the first edition on Thomas on Sentencing, which goes back to the 1960s in these words:
"Youth is one of the most effective mitigating factors." 33. "
The youth and immaturity of an offender must always be potential mitigating factors for the courts to take into account when passing sentence. However, where the facts of a case are particularly serious, the youth of the offender will not necessarily mitigate the appropriate sentence." Since the sentencing remarks of Judge Faber, we have been provided with the Definitive Guideline on the Overarching Principles relating to Sentences for Youths. Paragraph 1.2 points out that when sentencing an offender aged under 18, a court must have regard to the principal aim of the youth justice system, to prevent offending by children and young persons and the welfare of the offender. That is a matter of statute; it is not judge-made law. We are bound by it, as all judges are. Another paragraph states that the youth of the offender is widely recognised as requiring a different approach from that which would be adopted in relation to an adult. Even within the category of youth, the response to an offence is likely to be very different, depending on whether the offender is at the lower end of the age bracket, in the middle, or towards the top end. In many cases the maturity of the offender will be at least as important as the chronological age.[28]For present purposes it comes to this. There will from time to time be individual offenders whose maturity levels are well in advance of those to be expected of most youths of a similar chronological age. All these decisions are specific and individual. They must reflect all the material available to the sentencing judge, including the circumstances of the offence and the behaviour of the offender whose case is under consideration in the context of that offence. If justified, the maturity of a youth is a factor to which weight should properly be given because on this basis such mitigation arising from the youth of the offender is or would be proportionately reduced or diminished, sometimes (on rare occasions) to virtual extinction. When they are made, express findings by the sentencing judge are required. Nevertheless, the sentencing principles as they affect young offenders are clear, long-established and effectively unchanged, although most recently summarised in the latest definitive guideline. It is, therefore, inappropriate for a blanket ruling relating to a group of young offenders to ignore the fact of youth.[29]We turn to the facts of this case. D's behaviour towards the victim on the night in question could not, in our judgment, properly be described as the behaviour of a youth. He led this ugly group action. His behaviour with the lighter after the girl had been raped, and raped repeatedly, disclosed an element of gratuitous cruelty. If D had been older, the sentence could, with justification, have been longer than it was. In our judgment this was a case where the judge was entitled to say that she would not discount for his youth. Even if that were wrong, as the sentence could have been longer if D had been older, we can see no basis for concluding that the sentence imposed on him was manifestly excessive or wrong in principle.[30]L is in a different position. He was 15 years old and the youngest of the three. Like the others, he had had a terrible start in life. Unlike the others, he was of completely good character. He was the first to plead guilty and he did so at the first available opportunity. We think some element of reduction in sentence would have been appropriate in the case of L. Bearing in mind all the features of the case, we have concluded that the sentence of five years and five months detention should be reduced to a sentence of four years detention. That will apply to both counts concurrently.[31]N is older than L. His flat was the scene where these offences were committed. He showed some concern at D's behaviour with the lighter. On the other hand, there was no credit to be given to him because of a plea of guilty. The case went forward through one unsuccessful trial and eventually to a successful conclusion at the end of a second trial. We have considered how to balance the sentence between him and L. As it is, the sentence of six years detention imposed on him would have been reduced to four years if he had pleaded guilty, as L pleaded guilty. But as he did not, we see no basis for interfering with the assessment made by Judge Faber.[32]In the result, therefore, the appeals against sentence by D and N are dismissed. The appeal against sentence by L is allowed to the extent that the sentence of five years and five months detention on both counts will be reduced to a sentence of four years detention. All of the sentences are sentences of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.