A, R v [2011] EWCA Crim 1517

Case No 2010/03774/D1[2011] EWCA Crim 1517
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 25 May 2011
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE BEAN
and
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrown- v -
Between
ASHRAF A
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 E Smith appeared for AppellantMr R Hearnden appeared for Crown
J U D G M E N TWednesday 25 May 2011
[1]On 11 June 2010, in the Crown Court at Southwark, before His Honour Judge Stone and a jury, the appellant, Ashraf A, was convicted of rape contrary to section 1(1) of the Sexual Offences Act 2003 (count 2) and of causing a female to engage in sexual activity without consent (count 3). On 24 June 2010 he was sentenced to seven years' imprisonment on count 2 and to five months' imprisonment concurrent on count 3. A direction was given that 203 days spent in custody on remand should count towards sentence.[2]A suspended sentence of 12 weeks' imprisonment imposed at the Horseferry Magistrates' Court on 21 May 2009 was partially activated, with a reduced term of two months' imprisonment which was ordered to be served consecutively. The total sentence was one of seven years and two months' imprisonment.[3]The appellant appeals against conviction by leave of the full court.[4]The complainant had been in a relationship with the appellant for about three years until they separated in September 2009. On 15 November 2009 she agreed to go with him to his address. Once there she complained that he became aggressive and forced her to engage in sexual acts against her will: count 2 was an allegation of oral sex, forcing her to take his penis into her mouth; and count 3, of forcing her to insert a finger into her anus.[5]The matter was reported to the police and to the complainant's friend "RB" on 1 December 2009.[6]The defence case was that there was no improper sexual activity; that what occurred was consensual; and that the appellant had not threatened the complainant in any way. A film was taken by the appellant of the activities on 15 November. The appellant maintained that everything in the film was consensual activity; they were playing a "sick" game. In the course of events they shared a bath together and had some food. There was evidence of text messages that he had sent her. He agreed that what he had said in those messages went too far by way of threats.[7]Evidence was called of the complaints made by the complainant to Police Community Service Officer Jordan and to RB. In his summing-up the judge summarised in some detail the evidence of the complaints. Both PCSO Jordan and RB gave evidence of what was said to them. RB said that the complainant had telephoned her on 1 December and said that she was on her way to the police station to report the appellant. She did not go into detail, apart from mentioning "blow jobs" and that the appellant had video-recorded her. RB asked the complainant, "Has he ever raped you?" Her evidence was that, after a long pause, the complainant replied, through her tears, "Yes".[8]PCSO Jordan said that when the complainant attended at the police station the initial complaint was that the appellant was using cannabis and was harassing her. Due to the complainant's manner and behaviour, the officer formed the impression that there was more to the incidents than the complainant had so far said. When given an opportunity to give a fuller account of 15 November, she made the allegations of sexual misconduct. She said that she was fearful of the appellant and would have preferred her allegations to have been reported anonymously.[9]The jury heard of the video interview between the officer and the complainant. In the course of that interview there were several interruptions because of messages the complainant received from the appellant. A threat was made, "If you don't call me, I'm going to show what you are to your family". The complainant understood that to be a threat to show them the video recording of their activities. The jury saw the recording for themselves.[10]The sole ground of appeal relates to the way in which the trial judge dealt with the evidence of complaint. Miss Smith on behalf of the appellant submits that the circumstances required a specific direction that the evidence from PCSO Jordan and RB was not independent evidence of the events of 15 November. In reliance on the decision of this court in R v AA [2007] EWCA Crim 1779 (Laws LJ, Cox J and HHJ Loraine-Smith), it is submitted that the judge should have ensured that the jury had in mind the fact that evidence of complaint came from the same person who now makes the complaint and not from some independent source. The complaint is not about the quality of the evidence of PCSO Jordan and RB, but about the absence of such a warning. Miss Smith submits that there was a danger that the jury would accept as truthful the evidence of PCSO Jordan and RB and, without more, would assume that it became independent evidence of the acts complained of. The jury should have been told specifically that the material came from the complainant and not from an independent source ("the independence direction").[11]For the prosecution Mr Hearnden submits that the absence of such a warning is not fatal to the convictions in this case. Amongst other things, he relies on questions asked by the jury in the course of the trial:
"How soon after 15.11.09 did the witness hear from the complainant regarding what had taken place? How did she seem? Was there anything different about her?"
Mr Hearnden submits that those questions express concern not about the quality of the evidence of the person to whom the complaint was made, but are enquiries about the circumstances of the complaint with a view to considering the question of consistency.[12]Reliance is placed by Miss Smith on the decision of this court in R v Islam [1999] 1 Cr App R 22, in which counts of indecent assault were charged against a general practitioner. Evidence of complaints was adduced. The convictions were quashed in that case for the reasons stated in the judgment of the court given by Buxton LJ who said:
"27. Thus, as the Judicial Studies Board standard direction puts it, the evidence: '.... may possibly help you to decide whether she has told you the truth. It cannot be independent confirmation of X's evidence since it does not come from a source independent of her.' That in our view is the direction that judges ought to give. It conveys as well as anything the peculiar nature of evidence of a complaint: that it has more significance than merely as evidence of the fact of the complaint having been made, whilst at the same time emphasising that it is not evidence of the facts complained of. We add that on occasion judges may also think it appropriate to remind the jury that a person fabricating an allegation may support it by an equally false complaint. .... 28. .... The complainant evidence was put before them on the same footing as any other part of the evidence. It is a matter of law, not of judgment or discretion, that complaint evidence has only the limited effect set out above. In those circumstances it is in our view essential that the jury should be told by the judge of the very limited effect that they are permitted to give to it. Without such a direction, there is every danger of the jury thinking, as on one view might be a commonsense reaction, that such evidence is indeed further evidence of the truth of the complaints, rather than being of, limited, assistance in assessing the veracity of the complainer."
[13]Much of what was said in Islam has been superseded by the enactment of section 120 of the Criminal Justice Act 2003. Insofar as is material, that provides:
"(4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if -- (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth."
The relevant condition is the third condition which is specified in subsection (7) as follows: 14. "The third condition is that -- (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, ...."[14]Thus complaints may now be evidence, providing the condition is satisfied. The general concern of the court in Islam that the evidence might be treated like any other evidence has much less force than it had until the enactment of section 120. Moreover, the point is made that section 120 applies not only to sexual offences, where common law rules had grown up in relation to complaints, but across the board of criminal offending. Thus, if it is obligatory to give the independence direction, it would be obligatory not only where there are sexual allegations but in other cases too, such as allegations of non-sexual violence. However, the statement of the court in Islam in relation to the independence direction stands; it is a separate point from that considered in section 120.[15]Miss Smith submits that the obligation arises independently of section 120 and survives its enactment. It appears that for some substantial time after the enactment of the 2003 Act the specimen directions of the Judicial Studies Board did not include the requirement which Miss Smith advocates.[16]In AA Laws LJ stated:
"17. In our judgment, in order to reflect (a) the substantive change in the law effected by section 120 and (b) the circumstance that a previous consistent statement (whether in a sexual case or otherwise) comes from the same person as later makes the accusation in the witness box, juries should be directed that such a previous consistent statement or recent complaint is, if the jury accepts it was given or made and the conditions specified in section 120 are fulfilled, evidence of the truth of what was stated: but in deciding what weight such a statement should bear, the jury should have in mind the fact that it comes from the same person who now makes the complaint in the witness box and not from some independent source." "18. .... He [the Recorder] said nothing about its coming from the same source as the primary evidence of the offence. That being so, it seems to us that the direction as to consistency was not set in any proper legal context. It is of particular importance that very careful directions be given in a section 120 case because the section expands the scope of evidence which may be adduced to prove the guilt of a defendant. Given the terms of the direction here, it is perfectly possible that the jury may have considered that the hearsay report of the recent complaint offered solid and indeed independent support for AB's primary evidence. In all those circumstances the absence of a direction of the kind we have indicated should be given in our judgment renders this conviction unsafe and on those grounds the appeal against conviction must be allowed."
[17]With effect from May 2009 the Judicial Studies Board directions in this respect have been amended. While the commentary dealing with section 120(4) and (7) does not expressly require the independence direction, the illustrations given recommend its inclusion. The illustration, for example, at page 230, when considering the direction on complaint, reads:
"These are matters for your consideration and judgment. Whether they assist you and to what extent are both questions for you to decide. Remember, however, that in each case the source of the complaint was V. This is not confirmation of the truth of V's evidence from another witness."
[18]In the present case the judge made clear that the primary task of the jury was to decide whether the complainant or the appellant was telling the truth. At page 4A of his summing-up the judge said:
"Now, I have said that an important part of your task is to assess the witnesses. This is particularly important in this case because the difference between [the complainant's] evidence and the defendant's evidence are such that it is difficult, you may think, to escape the conclusion that one of them is lying. A key question is whether [the complainant] is wickedly trying to get the defendant convicted of something he did not do, or whether the defendant is trying to pull the wool over your eyes and get away with some rather serious mistreatment of [the complainant]."
That was a clear direction to the jury of the importance of the evidence of the complainant. It is not diluted by any reference to supporting evidence.[19]It must have been obvious in this case that the complainant's own evidence of complaints, whether in the witness box or to another, was not evidence independent of her. The risk to be guarded against is the risk that the jury may think, wrongly, that evidence from a witness to whom complaints were made by the complainant is independent evidence of the events described by the complainant. Of course it is not. Its relevance is to assist the jury in their assessment of whether the complainant's evidence is credible and reliable. If no complaint is made for a substantial time after the events complained of, that may cause a jury, depending on how they regard it, to doubt the truthfulness of the complainant's account of events. A timely and cogent complaint, on the other hand, may assist the jury in concluding that her account is accurate. It all depends on the circumstances and how the jury regard them. Similarly, the degree of consistency between what the complainant says happened and what she said afterwards had happened may assist in assessing her reliability.[20]By virtue of section 120 of the 2003 Act, the complaint is evidence of what happened between the complainant and the appellant; it is not evidence independent of the complainant. We have cited the relevant passage from AA.[21]In this case, in an otherwise satisfactory direction, there was no specific direction to that effect. The question is whether it is possible that, in deciding who was telling the truth, the jury may have been under the impression that there was independent evidence from PCSO Jordan and RB as to what happened between the complainant and the appellant on 15 November. The case must be approached on the basis that the jury's assessment of the complaints made and the circumstances in which they were made played a significant part in their deliberations.[22]In his summing up of the evidence, and the significance of the complaints, the judge went into considerable detail. That was appropriate in a case where the complainant and the appellant were in a relationship (albeit a volatile one) which had endured for a considerable time, although it was in the process of being ended. There had admittedly been consensual sexual acts between them. The issue was whether there was consent on the occasions charged. The manner and the circumstances in which the allegations now made were brought to the attention of the authorities were in such a situation certainly factors capable of being relevant to whether the allegations were true. The judge rightly brought to the attention of the jury the delay between the events complained of and the complaints. He brought to their attention the inconsistencies between the several accounts of events given by the complainant at different times. He fairly drew attention to the way in which they should approach that delay and inconsistency.[23]At page 15F of the summing-up

the judge said:

"Finally some more general words of advice about offences such as this. One criticism of the complainant that has been made by [counsel for the appellant], which you will need to consider with care, is whether she has given inconsistent accounts of her experiences." 26. "
However, if you are left in doubt about the truthfulness of the complainant's account, because the inconsistencies cannot be satisfactorily explained, then you must find the defendant not guilty." That, too, directs the jury to the relevance of the complaints being by way of assessment of the credibility of her evidence. We have also referred to the jury's questions which point in the same direction.[24]In our judgment the direction recommended by Laws LJ in AA should have been given and should routinely be given. There may be cases where failure to give it is fatal to the conviction. However, in the circumstances of this case, and on the basis of directions actually given, we do not consider that there was a real risk that the members of the jury were under the impression that the evidence of PCSO Jordan and RB was independent evidence of what happened between the appellant and the complainant on 15 November. The members of the jury were sufficiently directed as to the relevance and significance of the complaints and must have understood that the issue to which the complaints were relevant was the truthfulness and reliability of the complainant and did not go beyond that.[25]For those reasons we have no doubt about the safety of these verdicts. The appeal is accordingly dismissed.

Cited in 4 later judgments