Ali & Anor, R v [2015] EWCA Crim 1279

Case No 201403841 B3 AND 201403842 B3

[2015] EWCA Crim 1279

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM Cambridge Crown Court

HHJ Lucraft

T20147093 and T20147094

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/07/2015

Before

THE RIGHT HONOURABLE LORD JUSTICE FULFORD

THE HONOURABLE MR. JUSTICE JAY

THE HONOURABLE MR. JUSTICE EDIS

Between

YASIR IFRAN ALI and DAAIM ALI ASHRAFApplicants

(Transcript of the Handed Down Judgment.

Copies of this transcript are available from:

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7414 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr. Alistair Malcolm QC and Ms Nicola Devas (instructed by CPS Appeals Unit) for Crown

Mr. Paul Hynes QC and Mr. Yasin Patel (instructed by Metcalfe, Copeman and Pettefar Solicitors) for Mr. Ali and Mr. Lawrence Bruce (instructed by) Bal Dhaliwal Solicitors for Mr. Ashraf

Hearing Hearing date: 5 March 2014

Judgment

Lord Justice Fulford :

Introduction

[1]On 20 May 2014 in the Crown Court at Cambridge before Judge Lucraft Q.C. and a jury the appellants were convicted of various sexual offences.

[2]Ali (now aged 29) was convicted of 4 counts of rape under section 1 Sexual Offences Act 2003 (counts 1, 5, 9 and 21); 7 counts of trafficking within the United Kingdom for sexual exploitation under section 58(1) Sexual Offences Act 2003 (counts 6, 8, 10, 12, 16, 20 and 23); two counts of making indecent photographs of a child under section 1 Protection of Children Act 1978 (counts 15 and 27); one count of engaging in sexual activity in the presence of a child under section 11 (1) Sexual Offences Act 2003 (count 24); and one count of intimidation contrary to section 51 (1) Criminal Justice and Public Order Act 1994 (count 28).

[3]Ashraf (now aged 20) was convicted of 5 counts of trafficking within the United Kingdom for sexual exploitation under section 58(1) Sexual Offences Act 2003 (counts 6, 10, 12, 16 and 23); one count of sexual assault under section 3 Sexual Offences Act 2003 (count 7); one count of sexual activity with a child under section 9 Sexual Offences Act 2003 (count 14); one count of engaging in sexual activity in the presence of a child under section 11 (1) Sexual Offences Act 2003 (count 25); and one count of intimidation contrary to section 51 (1) Criminal Justice and Public Order Act 1994 (count 28).

[4]On 20 June 2014 the judge sentenced Ali to an extended sentence comprising 20 years’ imprisonment with an extension period of 5 years on counts 1, 5, 9 and 21. He imposed concurrent terms of 4 years’ imprisonment on counts 6, 8, 10, 12, 16, 20 and 23; 1 years 6 months’ imprisonment on counts 15 and 27; 4 years 6 months’ on count 24 and 2 years 6 months’ imprisonment on count 28. The total sentence in Ali’s case, therefore, was an extended sentence comprising 20 years’ imprisonment with an extension period of 5 years.

[5]On the same day the judge sentenced Ashraf to 2 years’ detention in a young offender institution on count 6; a concurrent term of 1 year’s detention in a young offender institution on count 7; a consecutive term of 3 years’ detention in a young offender institution on counts 10 and 12; a concurrent term of 1 year 6 months’ detention in a young offender institution on count 14; a concurrent term of 3 years’ detention in a young offender institution on counts 16 and 23; a consecutive term of 4 years 6 months in a young offender institution on count 25 and a consecutive term of 2 years 6 months’ detention in a young offender institution on count 28. The total sentence in Ashraf’s case was 12 years’ in a young offender institution.

[6]There were various consequential or ancillary orders that we do not need to summarise for the purposes of this judgment.

[7]They had three co-accused. James Daly was acquitted by the jury of rape (count 4); Akash Yasin was acquitted on the direction of the judge of sexual assault (count 13) and trafficking (count 12); and Mohammed Aslam was acquitted on the judge’s direction of rape (count 19) and engaging in sexual activity in the presence of a child (count 26).

[8]Ali appeals againstconvictionby leave of the single judge in relation to the four counts of rape under section 1 Sexual Offences Act 2003, counts 1, 5, 9 and 21; the seven counts of trafficking within the United Kingdom for sexual exploitation under section 58(1) Sexual Offences Act 2003, counts 6, 8, 10, 12, 16, 20 and 23; and the one count of engaging in sexual activity in the presence of a child under section 11 (1) Sexual Offences Act 2003 count 24, and he renews his application for leave to appeal against sentence. Ashraf appeals against sentence by leave of the single judge.

[9]The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the victims of these offences shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify any of them as a victim of this offending. The Outline of the Case and the Issues at Trial 10. Summary

The Outline of the Case and the Issues at Trial

[10]In brief, the allegation was that the defendants targeted young girls from the Peterborough area, often from troubled backgrounds, whom they befriended and groomed for sexual purposes. They drove the victims to a variety of out-of-the-way locations where it was alleged they sexually assaulted or raped them, usually having first plied them with alcohol. On two occasions, rooms were booked at hotels where they stayed overnight with a number of girls for the purpose – as suggested by the prosecution – of holding sex parties. The sexual activity on one of these occasions was said to have taken place in the presence of a 14 year-old girl. During these hotel visits the appellant Ali took indecent photographs, including one sequence when Ashraf urinated over a girl in a shower and another of a girl having oral sex.

[11]The detail of the particular offences of which Ali was convicted and in relation to which there are grounds of appeal against conviction are set out below. The counts of rape relating to Ali (counts 1, 5, 9 and 21)

[12]By section 1 Sexual Offences Act 2003: Rape(1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. […]

[13]As regards the offences of rape, the central issue in the case as regards the appellant Ali was that of consent. The prosecution alleged that the defendants deliberately targeted and groomed these girls with the aim of using them for sexual purposes. They were selected because of their circumstances, including such factors as their ages, troubled backgrounds and humdrum lives which made them susceptible to the sexual advances of older males, who plied them with alcohol, flattered them, drove them to various locations and took them to “parties” at hotels. At the core of the prosecution’s case was the allegation that the victims became sexually compliant, and that any apparent consent on their part was not genuine or real.

[14]Ali’s case was that there was clear evidence of consent, and that no reasonable jury could conclude that the relevant complainant had not consented, still less that Ali did not reasonably believe that she had consented. He contended that the Crown impermissibly invited the jury to ignore the evidence from the alleged victims – which it was suggested was to the effect that they had consented (save as regards count 1 and, possibly, count 21) – and to substitute their own moral judgment about the sexual relations that had occurred.

[15]The judge’s direction to the jury on consent was as follows: Much has been said about those aged 14. The position in law is as follows. If a complaint is aged under 13 at the time, the prosecution does not have to prove that the complaint did not consent in order to establish the offence of rape. Where a complainant is aged over13, even if still a child, the prosecution must prove that the complainant did not consent at the time although the age may be highly relevant to whether she is genuinely consenting. Consent has a particular legal meaning. A person (in this case a young girl) consents if she agrees by choice, and she, at the relevant time, has the freedom and capacity to make that choice. It follows that consent must be a genuine consent. This means that in the case of an allegation of rape where the complaint is aged over 13 – as here – the prosecution must make you sure the particular complainant did not give her agreement by an exercise of free choice. The prosecution do not have to show that the defendant was violent or threatened violence at the time. Use of force or the threats of force are not essential ingredients of rape. Nor do the prosecution have to prove that the particular complainant resisted or protested. It follows that the prosecution do not have to prove that a complainant communicated or demonstrated her lack of consent by resisting the defendant physically or shouting at him. The fact that she did not say ‘no’ does not mean she was consenting. Consent involves a free agreement, simply to comply or submit is not necessarily to consent. Compliance and/or submission should not be confused with consent. For example, submission of free choice to repeated demands is not the same thing as consent. Submission achieved by high level psychological coercion in the context of the encounter and/or any pre-existing relationship between the defendant and the complainant may not amount to free agreement. Here the age gap and differences in levels of maturity between the parties may be relevant. Similarly the threat of force so that free choice has been overborne will not amount to consent freely given. This might apply where a complainant feels intimidated. It is necessary to focus on the complainant’s state of mind in the circumstances and the overall context of the particular sexual activity in question as you find them to have been. In particular you will need to consider the history of the relationship between the parties and the nature of the sexual encounter. Against that background, you must consider the critical question: Did the particular complainant agree to sexual intercourse by choice, and did she have the freedom and capacity to make that choice? It does not follow from the fact that a person may be behaving irresponsibly and exposing themselves to high risk situations, that there is necessarily a genuine consent to sexual activity. Similarly, to state the obvious, if a girl chooses to wear what some may regard as sexually provocative clothing, it doe not mean that they are consenting to sexual activity. Experience shows that there is no classic reaction to a demand for unwanted sexual activity. Some people with physical self-confidence and maturity will protest loud and long, some will resist, and other will freeze and/or just comply as the realisation dawns upon them they are in a situation they cannot control. Freezing and / or mere compliance is not the same thing as consent freely given. As a general rule, consent can cover a wide spectrum of mind from actual desire on the one hand to reluctant acquiescence on the other. Reluctant but genuine free agreement is not the same thing as submission, and is still consent, even if reluctantly given. You will need to consider how mature a particular complainant was at the time. Where you are considering the position of young immature complainants and where there is evidence of exploitation, you will need to consider evidence of acquiescence in the context of the circumstances as you find them to be. Context is all important. You will need to take into account the following factors if you find that they apply in respect of a particular allegation as they may have a bearing on whether there was, in reality, a genuine consent. It is a matter for you whether these factors arise and what weight you give to them. Inevitably these factors overlap.(i) age and maturity of the complainant at the time. This will be relevant to a young person’s understanding and knowledge of the position she was in, and the significance of what she was being asked to do or was doing. This, in turn, is relevant to whether in the circumstances she was able to exercise freedom of choice.

(ii) The history of the relationship between the parties at the time and the nature of the sexual encounter. This includes the age of the defendant. You will have to consider the extent to which there was any grooming as the prosecution allege. A person may achieve their objective of sex with the use of gifts, alcohol, insincere compliments, apparent security, a more exciting way of life and / or false promises. Such methods will not necessarily mean that there is a lack of consent where a seduction is successful. However, where there is evidence of exploitation of young and immature girl who may not understand the full significance of what she is doing, this is conduct you can take into account in deciding whether there was no genuine consent.

(iii) The consumption of significant amounts of alcohol may also mean that a complainant does not have the capacity to consent. Whilst a drunken consent is still a consent, if a complainant is so drunk that they are not in a position to know what is going on (i.e. they are “out of it”), they will not have the capacity to make that choice and so will not be consenting. That may occur whilst a person is still conscious. If a person is not conscious they are not in a position to consent. It is, of course, always the right of a person to decide whether to consent to a particular sexual activity at a particular time. Consent to one type of sexual activity does not necessarily mean consent to another. It is always necessary to focus upon a complainant’s state of mind at the time of the particular activity alleged. Consent to sexual activity on a previous occasion does not necessarily mean there is consent to sexual activity on a later occasion.

[16]That direction was clearly based to a significant extent on observations by Elias LJ in R v Robinson

[2011] EWCA Crim 916

, to which we turn in greater detail later in this judgment.

[17]It is to be noted that whereas Mr Hynes Q.C. on behalf of the applicant Ali advanced a submission of no case to answer on counts 5, 9 and 21, there was no submission on count 1. We address, to the extent necessary, the substance of those submissions and the judge’s ruling as part of our consideration of the grounds of appeal as regards the individual counts.

[18]As set out above and discussed hereafter, the central issue raised on this appeal in this context is whether there was sufficient evidence on which the jury could convict demonstrating the complainant in question did not consent. The counts of trafficking relating to Ali (counts 6, 8, 10, 12, 16, 20 and 23)

[19]By section 58 (1) Sexual Offences Act 2003: Trafficking within the UK for sexual exploitation (1) A person commits an offence if he intentionally arranges or facilitates travel within the United Kingdom by another person (B) and either— (a) he intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, or (b) he believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.

[20]The judge directed the jury in accordance with the elements of the offence just set out, and he added as a direction in law that travel in this context includes any journey, however short, whether in a vehicle or on foot. His written direction to the jury on this issue was as follows: In relation to each of these counts the prosecution must prove so you are sure:(i) the defendant you are considering intentionally arranged or assisted in arranging travel within the UK of the named person (travel includes any journey however short whether in a vehicle or on foot) and

(ii) at the time he did so he intended to do something in respect of the named complainant, during or after the journey, which if done would involve the commission of a relevant offence. The first element is not in issue for either defendant on any of these counts. The issue in each of their cases and on each count is that in (ii). Most sexual offences are a relevant offence for the purposes of (ii). It follows that rape, sexual assault, and sexual activity with a child under 16, making indecent photographs of a child and engaging in sexual activity in the presence of a child are all relevant offences.

[21]The appellant’s defence was that the meetings with the girls had been to befriend them, and the occasions when they were driven around had not been for a sexual purpose.

[22]At the close of the prosecution case, Mr Hynes had submitted that the de minimis principle applied to “travel within the UK”. He argued that applying a normal and everyday meaning to the word “travel” leads to the conclusion that an unplanned journey of only a few miles is outwith the ambit of this offence. We note that this is the only submission that the appellant Ali has raised in relation to his appeal on this count. The judge ruled that it had been demonstrated that for each of the seven trafficking counts, the individual concerned had been driven “some distance”, albeit possibly only a few miles. The judge concluded: 26. The offence is committed by someone who intentionally arranges or facilitates travel and had the necessary intention or belief within s.58(1)(a) or (b). In order to prove the offence it is not necessary to show actual travel, but the intentional arrangement or facilitating of travel with an intention to do anything to or in respect of a given complainant, during or after the journey and in any part of the world, which, if done, would involve the commission of a relevant offence and/ or (b) believed that another person was likely to do any such thing to any such person at such time. The fact that the journey may be short does not affect the offence. The defendant Ali was the driver of the car on each occasion and there is clear evidence of him intentionally arranging or facilitating travel and this submission by Mr. Hynes on the trafficking counts fails.

[23]The sole issue, therefore, raised on this appeal in this context is whether, applying the de minimis principle, a point is reached when the nature and quality of the ”travel” is insufficient (for example, if only very short distances are covered) with the result that the judge should withdraw the case from the jury. It is argued that the travel arranged and contemplated by the appellant did not involve sufficient distances, formality or regularity as to come within the natural and normal meaning of that word. In essence, it is submitted that relatively short ad hoc car journeys are not covered by this statutory provision. Therefore, it is the appellant’s case that the judge should have allowed his submission of no case to answer. The count ofengaging in sexual activity in the presence of a child relating to Ali (count 24)

[24]By section 11(1) Sexual Offences Act 2003: Engaging in sexual activity in the presence of a child (1) A person aged 18 or over (A) commits an offence if— (a) he intentionally engages in an activity, (b) the activity is sexual, (c) for the purpose of obtaining sexual gratification, he engages in it— (i) when another person (B) is present or is in a place from which A can be observed, and (ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and (d) either— (i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13.

[25]There was evidence that the relevant sexual activity took place in front of a 14 year-old girl in a room at the Days Inn Hotel, which included the defendants and LR, GB and SG. Ali’s defence was that no sexual activity took place, albeit there was clear evidence that this had occurred.

[26]Mr Hynes advanced a submission at the close of the prosecution case that there was no case to answer on the basis that “there was no or no proper foundation for the necessary finding that the sexual gratification must be derived from the presence of the other, rather than that presence being incidental. Furthermore, it was contended that there was no or no sufficient material for the inference that there was no reasonable belief that SG was aged at least sixteen – as she had been instructed not to reveal her true age and had not done so until later and, in relation to other evidence, hotel staff had the collective age at fifteen to sixteen”.

[27]This submission is repeated as part of the appeal on this count and, additionally, it is contended that if the relevant rape count is quashed, there would be no factual basis to support this count.

[28]We note there was evidence from SG that it was known that she was only 13 years old. As summarised by the judge: 88. She was mostly on the chair all night then they we just all on the bed and kept asking her about her virginity – as she was still 13 – don’t have it at 13 - too young. All of them said that to her – Ali and Ashraf.

[29]Furthermore, SG gave evidence that she had seen Ali having sex with two of the girls. She said that two of the other girls were on the bed with the men, including Ali, having sex. Again, the judge summarised this evidence in the following way: 91. As to who was asking her to get involved – she said it was all of them asking her – Ali mostly and Ashraf. Just kept asking her and she was no I don’t want to. [GB] and [LR] said you’re gonna lose it at one point and she responded, “yeah but not with like random people I don’t know. I’m too young for that”. Ali was saying - do you want sex with me? Do you wanna do this, wanna do that? And she was “No, don’t wanna do anything” and then they were just encouraging her to do it – ah c’mon, let’s do it” and she was no, go away. Ali was “ah, c’mon, c’mon come here, come here, do this, do that, do this, you have to do this” and she was “What? No I don’t”. [GB] and [LR] were on the bed with them, having sex.

[30]Against that background, on the submission of no case to answer, the judge concluded: 95. […] In relation to the defendants Ali and Ashraf, it seems to me that I am entitled to taken into account the conversation that [SG] refers to as being relevant to(a) the fact that she knew sexual activity was taking place,

(b) that the purpose in doing so was at least in part to derive sexual gratification from her presence there while it was taking place, and

(c) her age at the time. The submissions on behalf of the first and second defendants on counts 24 and 25 therefore must fail.

[31]The issues raised on this appeal in this context are i) was there sufficient evidence that the presence of SG was for the purpose of sexual gratification; ii) was there sufficient evidence demonstrating that the appellant had no reasonable belief that SG was at least 16 years old; and iii) there was a real risk that SG may not have been able to view the relevant alleged events which were said to have taken place in the bathroom. The Grounds of Appeal Against Conviction (Ali) 33. Count 1 (rape CP)

[32]There were two counts reflecting what was said to be non-consensual sexual activity as regards CP. For count, 1 Ali was alleged to have raped CP when she was under 16 between 1 January 2008 and 31 December 2008. It is of historical relevance that the allegation relating to CP in count 3 was that of inciting a child to engage in sexual activity contrary to section 10(1) Sexual Offences Act 2003, in that it was suggested that between 1 January 2008 and 31 December 2008 he arranged for her to be left in a car with James Daly for him to rape her. For count 3 it was contended that she was under the age of 16 when the offence occurred and Ali could have had no reasonable belief that she was over the age of 16. Submissions of no case to answer were not made as regards either count. The defence to these offences was that there had been no sexual activity. Ali was convicted of count 1 and acquitted of count 3. As regards CP, we therefore only need concentrate on count 1.

[33]The basis of the conviction on count 1 was clear. CP gave evidence that when she was inebriated on vodka, Ali drove her to a driveway. He then had sexual intercourse with her notwithstanding the fact that she said “no” and “no, I don’t want to” and indicated that she wanted to go to sleep. Her account was that she told Ali in clear terms that she did not wish to have sexual relations (she was too weak and too drunk and wanted to go home), but he nonetheless persisted. They had sex on a few later occasions.

[34]It is, therefore, unsurprising that Ali did not advance a submission of no case to answer at the close of the prosecution case as regards count 1 and Mr Hynes’s limited argument on this appeal is that if this court decides that the other counts of rape are unsafe, this count should be quashed “because it would be […] tainted” by the evidence which the jury had heard on the other counts of rape. Count 5 (rape SS)

[35]This rape was said to have occurred between 1 March 2010 and 31 October 2010. It was accepted that Ali and SS had been in a sexual relationship. There was an issue at trial as to whether this took place before SS was 16 years of age. Her account was that most of their sexual relations occurred when she was 15 years old. The appellant’s case was that she had been 17 or 18 years old. Notwithstanding that dispute, as set out above, for the purposes of this appeal it is argued by the appellant that the real question was whether SS consented. It is submitted that there was no evidence on which a reasonable jury could convict because SS did not at any stage assert that she had not consented.

[36]In evidence, SS said that she met the appellant through her sister. When they met, they tended to drive around the Peterborough area, drinking alcohol. The appellant, who knew she was 15 years old, asked for her telephone number. Initially she did not give it to him, but later she sent the appellant a text message which included her telephone number because she was bored. The judge summarised her evidence regarding the first time they had sexual intercourse as follows: The first time there was sex, she said, was in about March. She remembered losing her virginity to him. She was in town, and had been at a friend’s birthday party. She had been drinking, and he picked her up. They parked near to the Ramada. He came to her on the seat. They had planned to have sex. He was like “When are we going to have sex?” And she had said “Well, tonight.” And that was when they had planned to meet up after the party. She was fine with it, but nervous as it was her first time. It was a mutual thing. She did not feel under any pressure, and she said a condom was used. She was on the passenger seat and he was on top of her, and he had put his penis in her vagina. As to how she felt afterwards, she said she honestly could not remember. She was quite drunk. She had been drinking vodka. She used to drink quite a bit. And she put herself at six or seven in terms of a scale out of ten. She could remember what was going on. It hurt as it was the first time. He dropped her off home about ten minutes later. He knew it was her first time. He had the condom.

[37]Although she described having “fallen” for the appellant and that she did not feel under pressure to have sex (the appellant sulked rather than forcing himself on her), she gave the following description of their contact, as summarised by the judge: She did not want to say no to him. When she was asked why not, she said she did not know. “I just wanted to please him. And I thought if I weren’t going to give it he’d probably go and find it elsewhere.” […] Sex then took place every time she saw him. He would make the first move, but she was fine about that. There was a time when she did not want it, he got into a mood about it, and just dropped her off. That made her feel angry, as it felt like he just wanted sex. They were together for about nine months. They split in October 2010 just after her 16th birthday. He said that he did not want to be with her any more, and a couple of weeks later he was with someone else. She said her relationship with Yas was not a nice relationship. Things started to change, and he would call her a retard and everything and it felt like he only wanted sex. But she did not want to say anything as she did not want to lose him. She told him she loved him, and he said he didn’t love her. He said he really liked her, but love was a strong word. She was upset, but she didn’t want to be with him, and he had not ever forced sex on her. She now regretted what had happened and she knew it was wrong. At the time, it did not feel wrong. Looking back, she thinks it is wrong, as he knew how old she was and he knew it was against the law.

[38]It is contended that, on the basis of her age, there was no evidence that SS was “immature”, since she was 15 years old at the relevant time. It is emphasised that the decision to embark on a sexual relationship was mutual, having been agreed in advance and there was a lack of evidence of grooming, as demonstrated by their habit of driving around Peterborough drinking alcohol. In the circumstances, it is said the judge wrongly allowed the case to go to the jury.

[39]The judge’s reasoning in refusing the appellant’s submission of no case to answer on this count was: 76.Taking count 5 […], it seems to me that a proper analysis of [SS’s] evidence is such that although she appears to consent, that must be viewed in the context of what she says about meeting the first defendant, how he treated her, how often they met, drink, and the particular occasion that led to sex on the first occasion. In considering the position of (SS) it seems to me that there is evidence on which a jury would be entitled to find that her immaturity, coupled with the evidence of acquiescence rather than enthusiastic consent, particularly in the context of what could be perceived as grooming, meant that there was no proper consent on her part. Count 9 (rape LR)

[40]As regards count 9, the judge’s summary of LR’s evidence was as follows (the appellant Ali was referred to as “Mr Nice”). Turning next […] to what it is that [LR] said about the incident on 5th January, […] towards the end of her DVD she was asked whether there were any other occasions when she had a sexual experience with any of them, and she said that on the second time they went out to get drunk, it was her, Hannah, Ashraf and Mr. Nice in the car, the Ford Ka. It was a place near where people buy cars. It was dark and it was snowing. She remembered getting in the front with Mr. Nice, and Mr. Ashraf getting in the back with Hannah. Hannah really didn’t like Ashraf, she said. Hannah and Mr. Nice didn’t drink. There was one bottle of vodka but it wasn’t finished, but she was drunk. She recalled saying that she needed the toilet, she didn’t remember why, but Mr. Nice said he would go with her. It was snowing and she was freezing. They were round the back of the building. There was an electrical box that you shouldn’t touch, and there was a wall where they were having sex. She said that she was leaning against the wall facing it, and Mr. Nice was behind her. Again she said that his penis was in her vagina. She was asked “Did he ask you if that was okay? Did you ask him if that was okay? Whose idea?” She replied “Probably. I don’t know. Maybe not. I cannot remember, could not remember. But I didn’t remember the next morning ’til Hannah reminded me, and I was like ‘Oh, yeah’ ‘cos Hannah knew. Mr. Nice told her when we got back to the car. I don’t remember him saying that, but…” She said that she had a memory of it. She remembered swapping seats, she remembered getting out of the car, she remembered having sex, and then remembered getting back into the car. She was certain that nothing would have happened to her. As to how drunk she got that night, Mr. Nice had money. He had bought a bottle of vodka and a bottle of Boost, and she and Ashraf had drunk that in the car. Mr. Nice would have thought she was 16 at the time, but Mr. Nice knew her real age when she told him. She was drunk and she felt she liked him. He was really nice, and she felt sorry that she was lying to him about her age, and she should just tell him her age as it wasn’t fair. He’d done nothing wrong to her, and he was quite nice actually. So she told him her age, and he goes “Really?” And he said “Ali” - meaning Ashraf - “was lying to me.” That was when they were with Danny. But when they were down the alley, he thought she was 16. When she had sex in the alley with Mr. Nice, she was 8 or 9 on a scale of 1 to 10 in terms of drink, probably about 8. She had had quite a few cups of vodka mixed with Boost. She said that she had not mentioned these events to anyone. “I just tried to tell myself it’s over, nothing’s going to happen, and this is the first time I have told anyone the whole story. I’ve told Chrissie bits and bobs, but not everything.” She had told Hannah, but she had also said to her she didn’t want her to talk about it, and she had said “Fair enough.” When asked why she did not want to talk about it, she had said “Does it class as rape?” and was told “That’s what they’ve been charged with.” And her response was “Well, I didn’t really want to tell myself that I got raped. I kind of like wanted to tell myself ‘No, I didn’t get raped, so I’m not going to talk about it.’” She did not want to admit to herself what had happened and that she had met these people.

[41]When she was cross-examined, Mr. Hynes suggested to her that no sex had taken place on 5th January 2013, albeit in evidence Ali accepted that sexual intercourse had occurred which he maintained was with LR’s consent.

[42]There is also evidence from HK about the state of LR on this occasion before she left the car and on her return: [LR] was drunk and [Ali] was flirting, touching her leg, and she was playing on his phone. Mr. Ashraf then said that [LR] and Nice were going for a walk. Ashraf and Mr. Nice had spoken in their own language. [LR] stumbled out of the car. [LR] and Mr. Nice went out and walked away. They went down an alley.” She said that she has since shown the police where that was. As to the time of night, it was about 8:30, 9 o’clock. “[LR]”, she said, “was stumbling everywhere. She didn’t know where she was going.” She had then seen [LR] walking back to the car. She and Mr. Nice had been gone about 15 or 20 minutes, and Mr. Nice was doing up his trousers and his belt. [LR] was walking everywhere, and her top was tucked into her leggings, and she noted a red mark on her face from her forehead to her chin on the left side of the face. She wiped it and the mark came off on her hands.

[43]A number of police officers gave evidence about stopping the car in Stamford at about 10.00pm. They described LR as doing most of the talking and trying to calm HK down who was crying. It was suggested that LR was not drunk and was capable of talking.

[44]It is relevant to note that after she had given evidence, LR sent a number of exchanges on Facebook with another witness, GB, a witness who did not attend court to give evidence but whose witness statements were read to the jury. The exchanges, as summarised by the judge in his ruling, were as follows: The other evidence in relation to [LR] and consent, comes form an exchange that took place after [LR] had given evidence. On 15th April [LR] made contact with [GB]. At the time of the contact there was the issue of the admissibility of [GB’s] evidence if she was absent from court. The key passages are where [LR] says to [GB]:

“[G] its’ fucked us all over not just your self! It wasn’t even [rape] FFs!! Just do it & then it forgotten about!?!!?!?” […] A little later [LR] says: “You didn’t get raped now stop with all the “ohh the stress.” [GB] makes reference to [LR] throwing her vagina everywhere before another response from [LR] when she says: “Nothing bad happened as it wasn’t rape! There’s nothing to get stressed over! FFs!”

[45]On behalf of the appellant it is emphasised that LR had known Ali since late 2012 and she had initiated this meeting because she wanted to drink. At trial, the submission of no case to answer was advanced for this charge on the basis that LR’s own account was that the complainant had agreed to sexual contact. In those circumstances, it was suggested there was no proper basis for concluding that consent had been vitiated, for instance by the amount of alcohol that had been consumed. Mr Hynes underlined that LR was able to walk unaided and to have sexual intercourse standing up, whilst essentially fully clothed. She did not appear drunk to the police: when they stopped the car she appeared confident and did most of the talking. Therefore, given the evidence as to the condition of LR and her state of mind, it is argued that the direction by the judge to the jury amounted on an improper invitation to ignore the evidence of the complainant as to what happened during this incident. Mr Hynes submits that the prosecution could not properly avoid the evidence from the complainant that she gave her consent, albeit she was drunk. Additionally, Mr Hynes argues that the prosecution’s case on this count should be viewed in the context of counts 17, 18 and 19 (alleged rape of LR by Ali, Ashraf and Aslam on 16/17 February 2013), in relation to which the judge determined there was no evidence of lack of consent, notwithstanding she had drunk a significant amount of vodka.

[46]In giving his judgment on a number of counts of rape concerning LR and other complainants, the judge observed: 75.In relation to each of the counts I have to consider at this stage I have considered the question of consent, capacity to consent, and the context in which consent was given. In relation to counts 17, 18 and 19 I have also had regard to what [LR] herself said in the Facebook exchanges after she had given evidence. In relation to counts 11 and 13 I have considered what each of [KW] and [TJ] said about what happened in interview and in cross-examination, and the circumstances in which it happened. In relation to each of those five counts I take the view that the evidence does not demonstrate a lack of consent. It seems to me that although these were young girls and they had all been drinking, there is also evidence – for example - from the video footage and the hotel CCTV to show what condition they were in - that they were not so incapacitated through drink that they were unable to walk unaided. My decision is that these allegations do come within those rare situations where I ought to accede to the submissions made. 76.In contrast the position with [SS] on count 5, and [LR] on count 9 is quite different. Taking count 5 first of all, it seems to me that a proper analysis of her evidence is such that although she appears to consent, that must be viewed in the context of what she says about meeting the first defendant, how he treated her, how often they met, drink, and the particular occasion that led to sex on the first occasion. In considering the position of [SS] it seems to me that there is evidence on which a jury would be entitled to find that her immaturity, coupled with the evidence of acquiescence rather than enthusiastic consent, particularly in the context of what could be perceived as grooming, meant that there was no proper consent on her part. 77.In relation to count 9, the evidence from [LR] is very different to that she gives on the other counts that concern her. In addition it seems to me that the appropriate way to read the Facebook exchange is in the context of the events with [GR] and not as to all allegations. I am quite satisfied in relation to count 9 that there is evidence on which a jury properly directed could come to the view that this was not an act with her consent. Count 21 (rape GB)

[47]Ali was convicted of raping GB, who did not give evidence during the trial. The judge permitted her statement (viz. her Achieving Best Evidence (“ABE”) interview) to be read pursuant to section 116 Criminal Justice Act 2003 on the basis that it had been established she was in fear. In particular, she was afraid of having to relive the events of 16 and 17 February 2013. The judge, in admitting the evidence, observed that there was a complete and accurate recording of the ABE interview. He was of the view that the appellant had a sufficient ability to challenge the contents of GB’s statement on the basis of the other evidence in the case, including the contradictory first account by GB. The judge concluded that this evidence had considerable probative value against the appellant, and it would assist the jury in their evaluation of other evidence in the case.

[48]Mr Hynes submitted that the difficulties with this witness’s account, set out below, were such that the judge should have refused to admit it in evidence. In her initial interview she denied that sexual contact with the appellant had occurred. Her later account of sexual relations in the shower with the appellant was at odds with other evidence in the case. During the Facebook exchange summarised at [44] above, she did not refute the suggestion that what occurred had not been rape. There was evidence disclosed to the appellant that tended to indicate that GB was sexually active at the time of these events, that she was mature for her age and that she was an experienced drinker. There were a number of admissions before the jury which were directly relevant to GB’s evidence, that included incidents of violence on her part over a number of years that led to the police being called (these included threats made with hammers and knives). In February 2012 she consulted her GP because she thought she was pregnant following a mishap with a condom (she did not want her parents informed and the doctor described her as being very mature). In June 2012 she was violent in her parents’ car when very drunk, and she told lies about what had occurred. In October 2012 it was alleged that she had had sex with a man who had supplied her with Mkat. She was drunk and assaulted a number of police officers, whilst claiming that she drank large quantities of alcohol and used Mkat and cannabis most weekends. In April 2013 she was arrested for a public order offence, assaulting a police officer and assault occasioning actual bodily harm. In November 2013 she was discovered unconscious by the ambulance service when under the influence of cocaine and alcohol.

[49]The appellant submitted that there was no case to answer on this count but the judge decided there was sufficient evidence to go before the jury. Mr Hynes invited the judge to direct an acquittal on count 21 pursuant to section 125 Criminal Justice Act 2003 on the basis that GB’s evidence was so unconvincing that any conviction of the appellant based on it would be unsafe. The judge ruled that he was not satisfied that any conviction founded wholly or in part on this evidence would be unsafe because it was so unconvincing and bearing in mind its importance to the case against the appellant.

[50]The judge’s summary of principal evidence relevant to GB was as follows: She was first interviewed on 8th May and you will recollect that that first interview she says that nothing sexual had taken place at all that evening. She describes the scene in the hotel. She describes them being out and her description overall of what takes place in the hotel room is of them drinking, showers being taken, her being ill, but as I say nothing, she says nothing sexual had taken place with her. She was then interviewed on 19th February and she spoke about what is described as being missing from her previous interview. When getting alcohol that she described, one of the men had, to use her description, grinded up against her. She’d got back into the car and said to her friends that she wanted to go home, she didn’t like it. They ended up going to the Welcome Break at Peterborough. He’d asked them to go in one by one and said to [SG] when the drinks were being poured, “Let’s get drunk and forget about it.” The person who had been doing the grinding up to her was Mr Nice [the appellant]. At one point in the night, she was in the toilet. One of the men came into the bathroom, turned on the shower and then started to undress her and that’s when he put her in the shower. Afterwards, she got out of the shower and so did he. She had said to [LR] to come to the bathroom. She felt absolutely dirty and disgusting, so she had a shower with [LR], but [LR] she said was in quite a party mood. She was quite happy and thought it was all fun. Afterwards, she was being sick as she was disgusted. She drank quite a bit. After that, they went off and their iPhone was left on the floor. She had said to [SG] that she wanted to pay them back. She had picked up the phone and climbed out of the window. There was a McDonald’s and they were going to get some food and she left the phone under a rock. When they got back from McDonald’s, they went to sleep; the girls on the floor, and they, the men, had slept on the beds. She spoke about the next morning and the hunt for the iPhone and them using the iCloud to find it. She then said this; it was Mr Nice in the shower with her. Basically he’d raped her. “I wasn’t 100% willing. I was quite, I felt quite intimidated, so I kind of did what, he was basically saying what to do. I wasn’t doing it because of my own will. He was telling me what to do and it only lasted about ten minutes. He put the shower on and we got into the shower and I had a bra top on, but no bottoms and that was basically, it was partly full sex against me which he knew that I wasn’t 100% willing. I wasn’t willing at all. I was just scared and intimidated.” He pulled her legs up and so it was her back that was on the chair. She was saying, “No, I want to go out.” “I was saying, ‘Let’s go out,’ and he was just sort of saying, ‘No, let’s stay in here.’ He locked the door and he was saying, ‘Let’s stay in here. I think it got to the point where I'd said it quite a lot and he was just, turned on the shower and sort of initiated it as if to say this is what's going to happen.” He'd not touched the other parts of her body during this. In terms of alcohol, she was about four or five on the scale when the incident in the shower took place. Everyone was there at the time it happened. It was quite late. She was not more drunk. She got herself worked up and the alcohol and she had been sick, but she thought it was mainly just fears and shock really. She spoke about wanting closure and to try and let them know what they’ve done, what they’ve caused, “I'm going to carry this with me for the rest of my life. I don’t have another chance to have my virginity taken like most teenagers fantasise about.” She had not had sex before. She spoke about feeling that her teenage years had been taken from her. What happened, she said, was traumatising, a memory that she couldn’t let go of. [There were] a number of statements from those people who’d had dealings with [GB]. […] DC Morris was the allocated single point of contact with [GB] and she made a statement in February setting out the details of that contact. The interview on 8th May was the one where there had been no disclosures of any sexual acts. The investigating officers had then become aware of the images from the phone of the first Defendant that had shown [GB] dressed in her underwear. When visits were made to [GB] to assess the prospects for a further interview, it was clear to them that [GB] was reluctant. There were visits to her on 7th and 13th June. There was a meeting on 9th July. [GB] acknowledged there was more that had taken place but the statement says this, “She didn’t like the idea of another interview because it was an unpleasant thing to do and the idea of going to court was just unpleasant. [GB] said that the night in the hotel was the worst of her life and her instinct was just to try and forget about it. However, [GB] realised that the men who had taken her to the hotel room were bad people who needed to be stopped and she did feel some duty to help with that process, feeling bad that others might suffer because she hadn’t helped. [GB] also cited the fact that she does have a lot going on in her life, what with multi-agencies and so on and this was a blocker to her doing the video recorded interview. [GB] was going to have another think about an interview and happy for me to approach her on that subject again in the near future. 11th July, the message was that she was not going to do a further interview, and another passage from the statement; [GB] had told her that the man had got her into the bathroom, forced himself on her. She had cried out for help and said no. She was really scared and didn’t know what to do. “She really doesn’t want to speak to the police because she just wants to forget about it.” There was then a further statement or further meetings with [GB] and a meeting on 19th February and in that meeting, [GB] came downstairs and had said hello to the officer and to the social worker, Debbie Wysing [?] and had then said, “I don’t wish to be rude, but I don’t want to have a social worker, I just want to be normal.” She had then said that she was prepared to give a further statement and the statement was taken that day and she, DC Morris said this, that [GB] suddenly said she’d like the opportunity to tell the men involved in the case what she thought about them, how she wanted to tell them how they'd impacted her and her family. She said that she wanted them convicted for what they had done and to learn remorse for their behaviour. “I said that court would be an opportunity for [GB] to say these things and ideally, this should be done by a visually recorded interview. [GB] said that she would be happy to go to court, but didn’t want to have to be asked too many awkward questions about what had happened. She found it awful having to think about what had happened to her.” Well, that is, 19th February is the day that the interview takes place and then there were further statements dealing with the events that have taken place after that; a meeting on 1st April where [GB] was worried about coming to court and giving evidence. The special measures had been explained to her. She was due to attend court to give evidence on 16th April and due to view the DVDs on 14th and it was on that day that [GB] through her mother had told them that she was refusing to have any contact with the police and she wanted to forget all about it. The social worker, Debbie Wysing also her statement was read to you that [GB] had said she was scared about going to court and the thought of coming to court gave her more pain and stress than the actual incident and Mrs Wysing’s opinion was that [GB] had been emotionally traumatised by the whole event and added to her childhood experiences when she was aged three. As to that trauma, members of the jury, you heard that [GB] aged three and her mother had been held hostage by her father and that [GB]’s mother had been raped by her father and then he’d hung himself. You also heard, members of the jury, other statements read to you about Mrs Wysing’s view being that [GB] remaining emotionally traumatised by the events that had taken place and that the issue for [GB] is clearly saying that she is unable to relive and answer questions about that evening. Two other matters that I must remind you about in the context of this, members of the jury. One is the part of the special measures report was read to you where it was said that [GB] was an academic and able student with impressive cognitive skills, particularly in the areas of auditory and visual memory, along with effective problem solving strategies, and also, members of the jury, you’ve got the matters which are now set out for you at paragraphs 31 to 36 of the admissions so it’s right that I remind you of all of those issues at the time of having summarised [GB]’s evidence.

[51]On this appeal, it is argued that the evidence of GB was inherently weak and contradictory, and that the judge should not have permitted the ABE interview to be introduced during the trial without the appellant being afforded the opportunity to cross-examine the witness. Furthermore, it is argued that the judge should have directed an acquittal on this count. Count 24 (engaging in sexual activity in the presence of a child)

[52]We turn next to count 24. The judge’s directions to the jury on the elements of this offence were as follows: […] the Prosecution must make you sure :(1) the Defendant intentionally engaged in sexual activity in the presence of [SG] where he could be observed by her;

(2) he did so for the purpose of obtaining sexual gratification from being observed;

(3) he did not reasonably believe [SG] was aged 16 or over; and

(4) knowing, believing or intending that [SG] was aware he was engaging in sexual activity. and later: […] the sexual gratification must be derived by engaging in sex in the presence of S so it is effectively from being watched by another doing the act. I hope that helps you. As I say it is sexual gratification so it’s, the gratification is derived from engaging in sex in the presence of S, effectively being watched doing the act by her.

[53]The judge’s ruling on this issue following the submission of no case to answer was as follows: 86. Turning to the evidence from [SG], she thought [GB] and Ashraf had sex. She wasn’t really paying attention. She had covered her ears – she didn’t like it and so put her headphones in. As to what made her think they were having sex, [GB] is like that – she has sex. They were on each other. She was mostly on the chair all night then they we just all on the bed and kept asking her about her virginity – as she was still 13 – don’t have it at 13 - too young. All of them said that to her – Ali and Ashraf. [GB] was naked next to her and she thought Ashraf was naked too – she didn’t look. There were no covers on them – she didn’t think there were. She tried not to look at what they were doing. [LR], Ali and Aslam were on the bed – she didn’t know what they were doing as she wasn’t looking. 87. After Aslam had got to the hotel, [GB] and Ali went for a shower – when they came out they were both naked. Ali and [GB] went into the shower again - went in together. [LR] and [GB] went in and Ali and [LR] went in and Ashraf and [LR]. She didn’t think that Aslam went into the shower. As to whether he was naked, she thought he was when he was in the bed with everyone, but she didn’t know. She had her headphones in most of the night but heard some banging noise from the shower. When she heard that she asked [LR] what they were doing, and she said she didn’t know. 88. It was quite late when Aslam came in. Then a man came knocking on the door and said they had to go as they had only booked it for one person. They said to us to climb out of the window – told us to open the window, go through and climb back through. Ashraf was on the bed, [GB] was next to him, [LR] – they were all in the bed. She was on the chair. She didn’t want to go on the bed. Aslam was scary. They got out of the shower and were half naked and so didn’t want to go on it either. They were constantly going for showers and then getting back on the bed. [GB] came over to her and then they both lay on the floor and then [GB] was lying next to Ali and so she went back to the chair. She thought [GB] and Ashraf had sex – she wasn’t really paying attention. She had covered her ears – she didn’t like it and so put her headphones in. As to what made her think they were having sex, [GB] is like that – she has sex. They were on each other. She was mostly on the chair all night then they we just all on the bed and kept asking her about her virginity – as she was still 13 – don’t have it at 13 - too young. All of them said that to her – Ali and Ashraf. [GB] was naked next to her and she thought Ashraf was naked too – she didn’t look. There were no covers on them – she didn’t think there were. She tried not to look at what they were doing. 89. [SG] was told that the police had examined her phone and there was contact with someone called Charlie Town. He was someone who went to her school. She did not remember texting to him about what had happened. She knew him from seeing him around the school but had not really chatted to him and didn’t really know him. He was in her sister’s year. She thought she would have got his number from Facebook – he might have messaged her. She was taken to the messages. “OMG, my friend had sex with him in the shower”. She couldn’t remember sending the message, but that was what she had seen. She thought she might have been with G at the time and they were talking about it. Thinking back on the night and what happened, she thought they did. She was asked about the sending of texts to Charlie – I think I had to tell someone about it. She had told her sister. She was then asked about some other texts – “All night in a hotel on P-town, so awkward”. Again she said she could not remember sending the texts. As to why it felt awkward, she said she did not know who they were and they were having sex and everything and they kept asking her if she wanted it, and she said “No” as it was disgusting and they were “Ah come on “ and she was saying no I don’t want to. They weren’t pressurising her into it not anything – they asked a couple of times – [GB] or [LR] were saying ah you’re gonna lose it anyway some time, you might as well, and she was no, I don’t know them. 90. She said she wasn’t really paying attention to what was going on. All there of the men slept in the bed and she thought [GB] was crying as she was pretty drunk. She hugged her and then her, [GB] and [LR] fell asleep on the floor. In the morning she got up first then [GB] – she was speaking to [GB] half the night – oh my God what are you doing and all that stuff – she was drunk and she was sobering up through the night and she was “no what have I done and stuff like that. In the middle of the night [GB] woke up – she didn’t know of [GB] was acting or not, but she said why are we here? And she responded to her – you were sober before you came here [GB] – then she went back to sleep – she couldn’t get to sleep and so sat up on her phone. [GB] was regretting everything and when it was mentioned she was saying shush – if anyone asks, just say it was white people I had sex with. 91. As to who was asking her to get involved – she said it was all of them asking her – Ali mostly and Ashraf. Just kept asking her and she was no I don’t want to. [GB] and [LR] said you’re gonna lose it at one point and she responded, “yeah but not with like random people I don’t know. I’m too young for that”. Ali was saying - do you want sex with me? Do you wanna do this, wanna do that? And she was “No, don’t wanna do anything” and then they were just encouraging her to do it – ah c’mon, let’s do it” and she was no, go away. Ali was “ah, c’mon, c’mon come here, come here, do this, do that, do this, you have to do this” and she was “What? No I don’t”. [GB] and [LR] were on the bed with them, having sex. 92. She was asked about another text “My friend had sex with him in the shower” and she said “They had sex about 20 times – [GB] and [LR] they all did. I think it’s disgusting. Well, I didn’t see, obviously. When they were saying to her to come over, and to do things – they were asking her to have sex with them. They were saying thinks like, “Do you want sex with me?” 93. When she was cross-examined on behalf of Ali, and it was put to her that she had not seen Ali having sex with anyone, she said she did, but did not look close up 94. As to her age, she said that [LR] had told her to lie about her age and she had said 15 or 16 and not given her real age until afterwards. When it was suggested to her in cross-examination that she had not seen Ashraf having sex with anyone, she said she did, but she wasn’t really looking. She saw him on top of someone right next to her. She knew what they were doing and was trying to avoid looking at it – it was disgusting. She did agree she was not forced to watch it and it was not as if they were making a display of what they were doing. 95. In relation to the defendant Aslam I am quite satisfied there is insufficient evidence in relation to elements (iv) and (vi) such that I propose to accede to the submission in his case. In relation to the defendants Ali and Ashraf, it seems to me that I am entitled to taken into account the conversation that [SG] refers to as being relevant to(a) the fact that she knew sexual activity was taking place,

(b) that the purpose in doing so was at least in part to derive sexual gratification from her presence there while it was taking place, and

(c) her age at the time. The submissions on behalf of the first and second defendants on counts 24 and 25 therefore must fail.

[54]The appellant argues there was no, or no proper, foundation for the jury to conclude that sexual gratification was derived from the presence of at least one other individual, rather than her presence simply being coincidental. Additionally, it is contended that there was no or no sufficient material to found the inference that there was no reasonable belief that SG was aged at least sixteen.

The Response of the Prosecution on conviction

[55]The Crown submits that on the substantive sexual offences there was sufficient evidence on each count for the count to be left to the jury and the Judge was correct to take this course. As regards the trafficking offences, the Crown contends that the statute provides no defence and creates no exception for short journeys. It is contended that it was open to the jury to decide that the collection of the girls and driving the around as a journey the purpose of which was sexual gratification. We have not set out the respondent’s submissions in greater detail because they are reflected in the analysis set out below. Discussion on conviction Rape

Discussion on conviction

[56]It is necessary to consider certain aspects of the principles that apply in these circumstances. There are many instances when the complainant’s evidence as to whether she consented will determine if there is a case to go to the jury. In our judgment, however, in particular situations such as the present the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent, given it is possible that the circumstances may have limited or distorted the individual’s appreciation or understanding of his or her role in the sexual relations and the true nature of what occurred.This issue was explored in Malone

(1998) 2 Cr App R 447

, when Roche LJ in giving the judgment of the court observed (at page 457 G): No doubt in order to obtain a conviction there will have to be some evidence of lack of consent to go before the jury. But what that evidence will be will depend on the particular circumstances of the case that the jury is trying. The evidence may be of widely differing kinds as a few illustrations will show. It may be the complainant's simple assertion “I did not consent to sexual intercourse with the defendant”. It may be evidence of threats uttered by the defendant. It may be evidence of the use of physical force by the defendant. It may be evidence that the complainant was by reason of drink or drugs incapable of giving consent or incapable of being aware of what was occurring. It may be evidence that by reason of age or lack of understanding due to mental handicap the complainant did not give consent. The jury may accept that the complainant was asleep when sexual intercourse occurred or that she was tricked into giving her consent in the belief that the defendant was her husband or partner. We do not for a moment suggest that these examples exhaust the possible factual situations which may arise. They suffice to demonstrate that it is not the law that the prosecution in order to obtain a conviction for rape have to show that the complainant was either incapable of saying no or putting up some physical resistance or did say no or put up some physical resistance.

[57]One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent on the part of the victim. As the judge directed the jury in the summing up in this case, where there is evidence of exploitation of a young and immature person who may not understand the full significance of what he or she is doing, that is a factor the jury can take into account in deciding whether or not there was genuine consent. This was directly recognised by this court in R v Robinson (per Elias LJ): 21. Grooming is not a term of art, but it suggests cynical and manipulative behaviour designed to achieve a particular sexual objective. Not all relationships with underage children can fairly be characterised as involving grooming, although many will. But even where they can, the fact of grooming plainly does not necessarily vitiate consent. Many a seducer achieves his objectives with the liberal and cynical employment of gifts, insincere compliments and false promises. But such manipulative and deceitful methods could not be relied upon to establish a lack of consent whenever the seduction was successful. The situation will often be no different where the complainant is under age. But where the exploitation is of a girl who is of an age where she does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where, as here, there was evidence of acquiescence or acceptance rather than positive consent, we think that, as the judge found, it would be open to the jury to conclude that the complainant, perhaps out of embarrassment or some other reason, had in reality unwillingly gone along with the acts which she did not in fact wish to engage in.

[58]Although, as Elias LJ observed, grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual may have been placed in a position in which he or she is led merely to acquiesce rather than to give proper or real consent. One of the consequences of grooming is that it has a tendency to limit or subvert the alleged victim’s capacity to make free decisions, and it creates the risk that he or she simply submitted because of the environment of dependency created by those responsible for treating the alleged victim in this way. Indeed, the individual may have been manipulated to the extent that he or she is unaware of, or confused about, the distinction between acquiescence and genuine agreement at the time the incident occurred.

[59]The critical distinction between consent and submission was explored in Stephen Olubumni Olugboja

(1981) 73 Cr App R 344

. Dunn LJ in giving the judgment of the court observed (at page 350): Although “consent” is an equally common word it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction. What this should be will depend on the circumstances of each case. The jury will have been reminded of the burden and standard of proof required to establish each ingredient, including lack of consent, of the offence. They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent (per Coleridge J. in Day (1841) 9 C. & P. 722, 724). In the majority of cases, where the allegation is that the intercourse was had by force or the fear of force, such a direction coupled with specific references to and comments on the evidence relevant to the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place after threats not involving violence or the fear of it, […] we think that an appropriate direction to a jury will have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place. In addition to the general direction about consent […] the jury will probably be helped in such cases by being reminded that in this context consent does comprehend […] (a) wide spectrum of states of mind […], and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case.

[60]Hallett LJ indicated in Hysa

[2007] EWCA Crim 2056

that questions of capacity and consent should normally be left to the jury. It is, therefore, only in clear cases that a judge should conclude that there is no evidence on which the jury could properly convict in a case of this kind and accede to a submission of no case.

[61]In summary, in a case in these circumstances in which a vulnerable or immature individual has allegedly been groomed by the defendant, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given.

[62]Against that background, we turn to the individual counts. Count 5 (SS)

[63]Although SS gave evidence which, at face value, appeared to indicate she had consented, as the judge observed this needed to be viewed in the context of her account of her meeting Ali, the way he treated her, how often they met, her consumption of alcohol, and the particular events that led to sex between them on the first occasion. She denied she had been put under pressure, but when asked how she felt afterwards, she said she honestly could not remember. She was quite drunk, having been drinking vodka, albeit she thought she had been aware of what was going on. She was 15 years old when this occurred and she regretted what had happened. Despite the fact that at the time it did not feel that what she had done was wrong, now looking back she considers it was reprehensible, as the defendant knew how old she was and he knew it was against the law.

[64]Although later regret at having had sex does not, standing alone, negate consent that is freely given when the incident occurred, it provides part of the overall context which enables a court to assess whether or not the alleged victim truly consented at the relevant time. In our judgment, as regards Count 5 it was for the jury to assess SS’s suggested immaturity, the extent to which she was groomed by Ali and other defendants and the effect of the consumption by her of a considerable quantity of alcohol at the time of these events, and whether these and other factors materially had an impact on her ability truly to agree to what occurred. The appellant had a potentially powerful argument that SS had participated in the planning of this event, but that single factor was not determinative of this issue. Instead, it was simply one of a number of competing considerations that the jury needed to weigh when deciding whether there had been proper consent.

[65]As set out above, questions of capacity and consent should normally be left to the jury, and on count 5 the diverse evidence demonstrates that this was not one of those clear and unequivocal instances when a judge should conclude that there is no evidence on which the jury could properly convict, and as a result ought to accede to a submission of no case to answer. Instead, this was a complex factual situation leading to credible competing submissions as to whether there had been true consent; that evidence required careful assessment by a jury. In our judgment, on this count the issue of consent was properly left to the jury. Count 9 (LR)

[66]The position is substantially clearer on count 9. LR was drunk, having consumed a significant amount of vodka – indeed, she said she was drunk, to a level of 8 or 9 (when 10 is completely inebriated), and as a result her memory of what occurred was unsurprisingly imperfect. On her account, the appellant took advantage of her drunkenness and her need to urinate in order to have sex with her, at night, in the snow, whilst she was facing a wall. She was unable to say if there had been any discussion in advance, and she only recalled what had had happened when she was reminded the following day. In essence, her evidence was that she did not want to admit to herself that she had been raped.

[67]HK remembered LR stumbling when she got out of the car, apparently unaware of where she was going.

[68]On this evidence, there was a clear issue for the jury to resolve, as to whether LR had genuinely consented. On the evidence from LR and HK, a court could sustainably conclude that LR had, at most, acquiesced when the appellant opportunistically engaged in sexual relations with her whilst she was very drunk. That conclusion is unaffected by the later exchange between LR and GB after LR had given evidence, as set out above at [44]. It is particularly important in situations such as the present, in which vulnerable young people are involved, that the admissible evidence is considered in the round. Cases should not be withdrawn from the jury because the judge is led artificially to focus on limited areas of the evidence. When the circumstances of this incident are considered generally, there is a clear basis for concluding that LR did not give proper consent. Count 21 (GB)

[69]GB’s account was wholly clear that she had not properly consented to what occurred, and she had been raped. She said that the appellant was aware that she was not “100% willing” and yet he nonetheless persisted. The night in the hotel had been the worst in her life, and she had wanted to be able to forget about what had occurred.

[70]As set out above, the essence of the appellant’s complaint is that the judge should have refused to admit the statement by GB in evidence and that the judge should have directed an acquittal on count 21 pursuant to section 125 Criminal Justice Act 2003. The appellant contends that GB’s evidence was so unconvincing that any conviction of the appellant based on it would be unsafe. There were undoubtedly a number of points that could be advanced as regards this witness’s reliability. She denied, initially, that sexual contact with the appellant had occurred and her later account of sexual relations in the shower with the appellant conflicted with certain other evidence in the case. During the Facebook exchange with LR set out at [44] above, she did not contradict the assertion that she had not been raped. There was a suggestion that she was sexually active and mature at the time of this incident, and was used to alcohol. There were a number of admissions before the jury which were directly relevant to GB’s evidence and their assessment of her reliability and credibility. These have been considered earlier in this judgment, but they essentially all concerned incidents when she had been violent or inebriated.

[71]In our view, the judge was wholly correct to permit the statement to be read pursuant to section 116 Criminal Justice Act 2003 because it had been established she was in fear (most particularly of having to confront the events of the night of 16/17 February 2013). There was evidence before the jury from a social worker that at the time of the trial GB was emotionally traumatised by what had occurred, and was unable to answer questions about what had happened. There was an accurate record of the ABE interview. Pursuant to section 124 Criminal Justice Act 2003, the appellant had a wide-ranging opportunity to challenge the contents of GB’s statement on the basis of the other evidence in the case, including the witness’s first account. The judge was right to conclude that this evidence had considerable probative value against the appellant, and it would assist the jury in their evaluation of other evidence in the case.

[72]There was no reason for the judge to conclude, applying section 125 Criminal Justice Act 2003, that the statement provided by GB was so unconvincing that the conviction of the appellant would be unsafe, bearing in mind it was of critical importance to the case against him. Her statement was a credible account by someone who had been intimidated and had not given proper consent. The contradictions between her earlier and later accounts were explicable on the basis, as with many witnesses in situations of this kind, that initially she was reluctant to disclose what had occurred. Otherwise, there were classic “jury points” to be taken on her evidence, but viewed separately and collectively these factors did not lead to the conclusion that her account was so unconvincing that any conviction based on the statement would be unsafe. Count 1

[73]Given this court has not decided that the other counts of rape are unsafe, this count does not fall to be quashed on the basis suggested by the appellant: “because it would be […] tainted” by the evidence which the jury had heard on the counts of rape discussed above. Engaging in sexual activity in the presence of a child 76. Count 24 (engaging in sexual activity in the presence of a child)

[74]For this count, the appellant argues there was no, or no proper, foundation “for the finding thatsexual gratification must be derived from the presence of the other, rather than that presence being incidental”. Additionally, it is contended that there was no or no sufficient material to found the inference that there was no reasonable belief that SG was aged at least sixteen, as it is averred she had been instructed not to reveal her true age and had not done so until later. Further, it is emphasised that a member of the hotel staff estimated the collective age of the young women as being 15.

[75]In our view the judge was right to focus, as he indicated, on the detail of SG’s evidence, namely that whilst she was sitting on a chair for a long period that night, the others on the bed kept asking her about her virginity as she was still 13 and was too young. Although in cross-examination she indicated that it was only later that she revealed her true age, it was for the jury to decide whether her original account on this issue was reliable: that they knew she was too young at the age of 13. She indicated that this was said by all of them, including the appellant. Her evidence was that they were having sex on the bed, and that this happened “a lot” of times. The judge summed up this part of the evidence as follows: They just kept asking her and she saying “No, I don’t want to. (GB) and (LR) had said “You’re going to lose it at one point”, and she’d responded “Yeah, but not with random people I don’t know, I’m too young for that”. Mr Nicewas saying “Do you want sex with me? Do you want to do this? Do you want that?”. She was “No, I don’t want to do anything” and they were just encouraging her to do it “Oh come on, let’s do it” and she was “No, go away”. Ali was saying “Ah come on, come on here, com her, do this, do that, do this, you have to do this” and she was saying “What? No I don’t”. As to her description of the number of times that sex had taken place, she said it wasn’t literally 20 times, but it happened a lot in the course of the night, but she knew that it was important to, when speaking to police, to tell them the truth and that the police hadn’t told her to guess and to only say what she had seen and heard.

Engaging in sexual activity in the presence of a child

[76]This provided sufficient evidence for the jury to infer that the appellant intentionally engaged in sexual activity in the presence of SG for the purpose of obtaining sexual gratification as a result of being observed by SG, knowing, believing or intending that she was aware that he was engaging in sexual activity. Further, the jury could sustainably conclude that he did not reasonably believe that SG was aged 16 or over. No single aspect of the account by SG as to her age was determinative of the issues the jury needed to decide on this count, in that they needed to consider the evidence in the round. Given there was significant pressure placed on SG to participate in the sexual activity that was already taking place in public involving a number of people, it was a fair inference for the jury to draw that her continued presence enabled the appellant et al to derive additional sexual gratification. There was no reason, therefore, to stop the case on this count at the close of the prosecution case.

Trafficking (counts 6, 8, 10, 12, 16, 20 and 23)

[77]As set out above, the sole issue raised on this appeal in this context is whether, applying the de minimis principle, a point is reached when the nature and quality of the ”travel” is insufficient (for example, if only very short distances are covered) with the result that the judge should withdraw the case from the jury. In essence, it is argued that the travel arranged and contemplated by the appellant did not involve sufficient distances, formality or regularity as to come within the natural and normal mean of that concept.

[78]The question, therefore, is whether relatively short ad hoc car journeys are covered by this statutory provision.

[79]We underline that the offence is committed by someone who intentionally arranges or facilitates travel and has the necessary intention or belief, as set out in within s.58(1)(a) or (b) Sexual Offences Act 2003 (see in this regard the replacement section 59A Sexual Offences Act 2003, which in this regard is similarly worded). It is highly significant that in order to prove the offence it is not necessary to show actual travel. The prosecution instead has to prove no more than the intentional arranging or facilitation of travel with the requisite intention, namely “to do anything to or in respect of the complainant” at any stage or any place which, if done, would involve the commission of a relevant offence. The crime is also committed if the perpetrator believes that someone else will treat the complainant in this way.

[80]In our view the key factor in the present context is that travel – a journey – is contemplated and the fact that it may be short does not affect whether or not the offence is committed. The judge correctly observed that the appellant was the driver of the car on each occasion, and in that sense there was clear evidence that he intentionally arranged or facilitated travel. It is self-evident that walking, for instance, between adjacent rooms, or other journeys involving truly minimal distances (for instance of a few feet or yards) may well be outside the ambit of this provision because there is a clear geographical element to this offence; but in the present case, substantive journeys took place involving a number of miles. The legislation does not specify a minimum distance or duration for the travel or journey, no doubt because victims can be “trafficked” within or across a small area or locality. The cases before our courts indicate that victims are exploited in this way within small, tight-knit communities, and it would unjustifiably undermine the reach of this statutory provision to introduce a requirement that journeys over a specified distance or time need to be contemplated or covered before a person is “trafficked” for the purposes of sexual exploitation. It would lead to absurdity to try to stipulate, for instance, a minimum number of miles, or that the journey must be planned with a clear destination, before the provision is engaged. On the evidence, this count was properly left to the jury. Conclusion on

The Grounds of Appeal Against Conviction (Ali)

[81]It follows that we dismiss the appeal against Ali’s convictions.

Grounds of Appeal Against Sentence

[82]For Ali it is argued that the sentence is manifestly excessive because the sentencing guidelines were applied mechanistically and without regard to the facts of the individual offences. It is suggested the judge failed to guard against repeated application of the same aggravating features, thereby leading to an excessively high starting point for each offence. It is contended, furthermore, that the judge erred in concluding that the appellant was dangerous, and he paid inadequate regard to the principle of totality.

[83]On Ashraf’s behalf, Mr Bruce emphasises the short period of time over which his offending extended and the fact that he had no relevant antecedent history, and it is suggested that the trafficking offences should have been treated as a “C 1” offence, namely he had a limited function that was performed under direction, for which the starting point is 18 months’ and the range 26 weeks to 2 years’. It is argued the judge misapplied the relevant sentencing guidelines; certain aggravating factors were double counted; the starting point on each of the counts was too high; and the total sentence, in the result, was manifestly excessive.

[84]In passing sentence the judge observed that it was clear from the evidence that the defendants had sought out young girls. Most of them had difficult backgrounds and the defendants had exploited their vulnerability, taking advantage of their consumption of alcohol so that they became easy prey. He accepted that some of the girls had been attracted to the appellants; they had described themselves as bored; and they were lured into a life that offered fun and excitement. However, the accused had groomed the girls and then used them for their own selfish sexual desires.

[85]Addressing the position of Ali, he placed the four offences of rape in category 2 given that each of the four complainants was vulnerable due to difficult personal circumstances. For the purposes of culpability there was undoubted planning and alcohol had been used, thereby making Part A the relevant bracket. This gives a category range of 5 – 13 years’ imprisonment and a starting point of 8 years’ imprisonment. The judge stressed that the aggravating features included the deliberate targeting of particularly vulnerable victims, the location and timing of the offending (e.g. the use of remote locations at night) and at least one of the victims was threatened. However, the judge stressed that he needed to ensure that he took the aggravating factors into account only once during the sentencing process, and therefore he clearly recognised that he need to avoid “double counting”. The only mitigating factor was the lack of previous convictions. In those circumstances the judge determined that a lengthy sentence was called for in a case in which four victims had been raped over a period of 5 years.

[86]Furthermore, the judge considered the dangerous offender provisions were engaged because of the significant risk of serious harm resulting from specified offences being committed by Ali in the future. He noted the appellant had falsely denied sexual relations with at least two of the victims. The probation officer concluded that Ali’s approach was to trivialise the offences and he demonstrated a clear lack of understanding as to what he had been doing. The writer had also gained the impression that he had manipulated Ashraf by ensuring that the latter was obviously linked to the victims, for instance by arranging to meet them and organising the hotels. Ali also suggested his conviction was the result of discrimination and racism. He sought to blame the victims, suggesting they had been deceitful about their ages. He was assessed as posing a high risk of sexual reoffending against children, with the corresponding risk of serious harm resulting from the commission of future specified offences. He passed concurrent extended sentences of 25 years with a custodial term of 20 years and an extension period of 5 years.

[87]As to the trafficking offences, the judge determined that they fell within category 1 because, for the purposes of harm, the victims were under 18 and they were deceived as to the purpose of the trips. Ali’s role was best described as an operational or management function within the hierarchy (thereby making it category B as regards culpability). The aggravating factors included the exploitation of girls from particularly vulnerable backgrounds, the use of alcohol and the steps that he took to ensure that the offences were not reported to the authorities. The judge expressly reminded himself that he had to bear in mind the overlap between these offences and the individual sexual offences relating to each of the complainants. On their own the trafficking offences came within the bracket which provides a starting point of 6 years’ and a range of 4 and 8 years’ before any uplift is applied to reflect the aggravating factors. There were 7 such counts spanning 3 separate dates. On each of the seven counts the judge imposed a sentence of 4 years’ imprisonment.

[88]Count 24, which involved sexual intercourse in the presence of a 13 year old, came within Category 1 of the Guideline and it took place in the context of “sex parties”. This offence concerned the specific targeting of a vulnerable child and fell within band with provides a start point of 4 years’ in a range of 3 to 6 years’ imprisonment. It was aggravated by the location of the offending and the presence in the room of other children. The judge imposed a concurrent sentence of 4 years 6 months’ imprisonment.

[89]For Ashraf, the probation officer indicated that he showed a failure to accept that what he had done was wrong. The writer regarded any expression of remorse on his part as contrived rather than genuine. While he accepted some responsibility for his actions, Ashraf also blamed his victims and the criminal justice agencies for what he regarded as harsh charges. Alcohol appeared to have been a key factor in the commission of the offences. He was viewed as posing a high risk of harm to post-pubescent teenage girls and a medium risk to the general public.

[90]On the five counts of trafficking within the United Kingdom for sexual exploitation, the judge unsurprisingly indicated that many of the conclusions he had reached in relation to Ali applied in Ashraf’s case. As set out above, he highlighted that these offences involved the exploitation of girls from particularly vulnerable backgrounds, the use of alcohol and steps that been taken to prevent the victims from reporting what had occurred. Those features warranted uplift from the initial starting point, resulting in concurrent custodial sentences of 1 year 6 months, 2 years and 3 years. For count 7, the charge of sexual assault which involved touching the breast of the victim over her clothing, the judge decided this was a category 3B offence with a starting point of a high level community order and a range of a medium level community order to 26 weeks’ custody. The aggravating factors were, as with Ali, the location and the timing of the offence, the victim’s age and her vulnerability. The judge decided that the custody threshold was passed and the appropriate term was 12 months’ custody. The charge of sexual activity with a child (count 14) involved urinating over a 14-year-old girl in the shower, when she was worse off for drink and in her underwear. The judge determined it came within Category 3 as regards harm and the aggravating features that brought it into category A culpability were the use of alcohol, grooming and an element of specific targeting. The starting point was 26 weeks, with a range of a high-level community order and 3 years’ imprisonment. The judge imposed a custodial term of 18 months. With count 25, Ashraf was charged with engaging in sexual activity in the presence of a child (sexual intercourse with a child in the presence of a 13 year old). As set out above, this offence took place in the context of a “sex party”. A vulnerable child was specifically targeted, and as a category 1 case in bracket A, the starting point was 4 years’ custody, with a range of 3 – 6 years’. As with Ali, the offence was aggravated by the location and the presence of other children. There was a consecutive term of 4 years 6 months in a young offender institution on this count and a further consecutive term of 2 years 6 months’ detention in a young offender institution on count 28 (intimidation).

[91]Addressing, first, Ali’s renewed application for leave to appeal against his sentence, we are unhesitatingly of the view that his overall sentence, although long, was entirely merited. The dangerousness provisions were undoubtedly satisfied, given the extent and seriousness of this offending. As to totality, it is of central significance that he was responsible for raping 4 young girls, as part of a campaign of sexual exploitation in which he deliberately selected vulnerable and youthful victims, who he mistreated and degraded. The judge expressly ensured that he did not “double count” any of the aggravating features. Given the period of time over which this offending extended (5 years), the range and seriousness of the offences and the lack of any mitigation save for his antecedent history and his age, an overall extended sentence of 25 years with a custodial term of 20 years and an extension period of 5 years was not arguably manifestly excessive.

[92]In granting Ashraf leave to appeal against sentence the single Judge observed: You engaged in disgraceful sexual exploitation of young girls and a severe sentence was called for. However, in view of your age, the fact that your offending (other than the witness intimidation) was limited to a period of six weeks, and (with one unrelated exception) absence of previous convictions, it is at least arguable that the total sentence of 12 years detention was excessive.

[93]In our view, the judge failed adequately to reflect, in comparison with Ali, the lesser role played by Ashraf, the far shorter period of time over which his offending extended and the absence of any conviction for rape. Although the offences for which he was convicted were serious, he was only involved for six weeks and there are grounds for concluding that he was, at least to an extent, manipulated by Ali. In each instance, the judge adopted a high starting point, and although this approach was justified when the various offences are viewed in isolation, the combination of concurrent and consecutive sentences has resulted in a sentence that is manifestly excessive. Given particularly Ashraf’s relative youth, this sentence should have been shorter. In the event, we quash the sentence on count 25 of 4 years’ 6 months custody and substitute a consecutive sentence of 6 months’ custody, leading to an overall sentence of 8 years’ custody. To that extent this appeal is allowed.