O'Meally, R v [2015] EWCA Crim 905

Case No CO//201305802 B5[2015] EWCA Crim 905
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Wolverhampton Crown Court
HHJ Watson
T20097157
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2015
Before
THE RIGHT HONOURABLE LORD JUSTICE FULFORDTHE HONOURABLE MR JUSTICE SPENCERTHE HONOURABLE MR JUSTICE HOLGATE
Between
Benjamin Hezekiah O'MeallyApplicant
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Peter Grieves-Smith (instructed by CPS Appeals Unit) for CrownMr John Butterfield QC (instructed by Waldrons Solicitors) for ApplicantHearing Hearing date : 8th May 2015
JudgmentLord Justice FulfordIntroduction
[1]On 29 September 2009 the appellant was convicted at the Crown Court at Wolverhampton of nine counts of rape.[2]On the same day Her Honour Judge Watson sentenced the appellant to imprisonment for life and specified the period of eight years and nine months as the minimum term to be served under section 82 A Powers of Criminal Courts (Sentencing) Act 2000.[3]The appellant appealed against his conviction on the nine counts of rape, but on 11 February 2010 the single judge refused leave to appeal and the application was not renewed to the full court.[4]In the present proceedings the appellant appeals against his conviction following a reference by the Criminal Cases Review Commission under section 9 Criminal Appeal Act 1995.[5]The central issue that arises as a result of this reference is whether material uncovered by the Criminal Cases Review Commission casts doubt as to the credibility of the sole complainant in the case (HF) such as to render the verdicts unsafe.

The Appellant’s Antecedent History

[6]The appellant has a number of previous convictions about which the jury heard during his trial (see the admissions paragraphs 9, 10 and 11). On 15September 1994, he was convicted at the Stafford Crown Court of two offences of buggery and two offences of assault occasioning actual bodily harm. In brief, the appellant committed buggery on his wife, who was three months pregnant, against her will and he forced her to perform oral sex on him. He was sentenced to a total term of four years and six months’ imprisonment. On 26 October 1998 the appellant was convicted at the Wolverhampton Crown Court of a number of offences against two women. The first was the victim of anal rape and forced oral sex, and the appellant urinated over her. The second was the victim of oral sex under duress. The indictment additionally contained counts of kidnap, false imprisonment, indecent assault and assault occasioning actual bodily harm of which he was convicted. He was sentenced to 13 years’ imprisonment.

The Facts

[7]HF gave evidence that the appellant, who had been released on licence from a prison sentence, pursued her following their first meeting on 6 June 2007. (We interpolate to note that although the evidence was not before the jury, it would appear that in July 2007 HF was warned by the West Midlands police about the appellant’s previous convictions.) He was returned to prison, and in May 2008 they began a sexual relationship following his release. Shortly thereafter he was once again returned to prison as a result of a breach of the terms of his Sexual Offences Prevention Order. He was released in August 2008 and he resided at a probation hostel in Stonnall prior to a further period in prison (as a consequence of a further breach of the Sexual Offences Prevention Order when he visited a red light district).[8]HF described the appellant as being possessive, and that he did not like her speaking or, otherwise interacting, with other people when they were together in public. HF maintained that the appellant told her that he was living in a bail hostel because he had been released from prison for armed robbery, whereas the truth was that he had been released from the 13-year prison sentence imposed at the Wolverhampton Crown Court on 26 October 1998. HF testified that the appellant telephoned her incessantly and that he sent her numerous letters. She also received three telephone calls from a stranger (a male) who told her that she must answer the appellant’s letters because he was “getting mad”.[9]When the appellant was released following his latest recall on licence, he went to live at Sycamore Lodge in Oldbury. The appellant threatened to kill himself if HF did not visit him. She complied. He was angry because she had not replied to his letters. They went to a public house where they drank alcohol, and according to HF they had sexual intercourse in the area of a canal close to the appellant’s hostel. This became a routine event. There was evidence from the landlord of the Junction Public House (William Smith) that the appellant and HF visited these premises on a number of occasions. HF described how the appellant demanded anal sex, and he used to urinate over her or into her mouth. Although she did not want sexual relations of this nature, the appellant insisted that it occurred regularly. On one occasion when she refused, the appellant held her head underwater in the canal until she consented. The appellant was stronger than HF and he knew that she was scared of him; therefore he did not expect her to resist. Whenever HF attempted to refuse, the appellant told her that she would get used to it and he would place his hand over her mouth to stop her from screaming. Ian Moran, a blacksmith whose premises was on the canal near the appellant’s hostel, testified that he had seen the appellant and HF having an argument close to his place of work. The appellant was shouting at HF, standing close to her face, whilst she was quietly talking. He had seen them on another occasion on a partially concealed piece of ground after dark.[10]The appellant instructed HF to say that she enjoyed their sexual relations. On three or four occasions the appellant ejaculated into a black-handled mug and he made the victim drink the contents. He also frequently ejaculated in her mouth and insisted that she swallow his semen. HF did not wish for oral sex to occur if it was associated with anal sex. In contrast, she would have consented to vaginal sexual intercourse and to oral sex, if unaccompanied by anal sex.[11]Generally, the appellant was obsessive and he repeatedly telephoned HF or sent text messages. Indeed, he sometimes used to prevent her from sleeping because he was in constant communication during the night. According to HF, there were two main topics of conversation. First, as to HF’s movements and, second, the appellant insisted on discussing sexual matters in lurid detail. Additionally, he indicated that no one would be able to end their relationship, and that he was prepared to blow up a police station. HF accepted that she sent text messages to the appellant, but she said that she was simply complying with his demands. These included, for instance, a message that she sent on 7 December 2008 which read “I want to finger fuck your arse today. Fast phone me later”. HF sent other sexually explicit text messages to the appellant during the period covered by the indictment, but she denied that they represented her true wishes. She said that she was in fear when she sent messages of this kind. She expressed her love for the appellant and she adopted his surname, but she denied that it was her real intention that they should marry. She testified that any indications to the contrary were because she was scared of him. The appellant made arrangements for their marriage but she failed to attend the mosque. William Smith, who had been asked to be the appellant’s best man, confirmed that there was an occasion when HF missed her wedding to the appellant.[12]HF said that she was particularly scared of the appellant because he knew where her mother lived. The appellant told HF that he had “killed before” and he said that if HF crossed him he would kill her mother and her children. She gave evidence that she believed this threat. He suggested that they should kidnap her five-year-old daughter and that they should run away together. HF told the appellant that she was pregnant in the hope that this would deter him from abusing her.[13]HF accepted that she cared about the appellant, at least to an extent, and that she believed that if she did not comply with his wishes he would kill himself. The appellant told HF that he loved her and she responded in a similar vein. He also called HF his slag and his whore.[14]HF gave evidence that she had not sought the protection of the police as a result of her desire to keep on friendly terms with the appellant because she was afraid of him. HF agreed that she had been concerned that social services might suspect that she was in a relationship with the appellant and that this may damage their attitude to her having contact with her children.[15]There was an issue in the trial as to the date when HF had become aware of the true nature of the appellant’s background. Evidence before the jury indicated that the police and social services had provided her with information relevant to this issue in January 2008. HF testified, however, that she had not believed the authorities and that the appellant had told her that the allegations were not true. He maintained that he had been imprisoned for armed robbery. Police Constable Catherine McAndrew is a domestic abuse officer who first had contact with HF on 30 May 2008. On 14August 2008 a detective inspector gave HF a warning that she might be at risk from the appellant, and HF signed a document confirming that she had been warned in this way. HF had an alarm fitted in her flat, although she declined the use of a mobile telephone that was offered as one part of a range of possible protective measures. On one occasion, PC McAndrew received a text message from HF (in August 2008) in which HF suggested that she wanted to entice the appellant to Wolverhampton in breach of a court order. PC McAndrew advised HF not to take this step. HF told PC McAndrew that she had written to the appellant whilst he was imprisoned. The latter had bombarded her with text messages and telephone calls. HF maintained that she was afraid of the appellant, and that she preferred to have him as a friend rather than as an enemy. She accepted that in her letters and her statements to the police she was, at least to an extent, inconsistent as to whether she wished to remain on friendly terms with the appellant.[16]When social services became aware of the relationship, they imposed restrictions on contact between the appellant and HF in order to protect her children. The appellant attempted to dictate what HF should say to the authorities, and she was directed to indicate to them that she wanted to be with the appellant and that she intended that they should marry.[17]It was HF’s evidence that when the appellant showed her a document setting out his criminal convictions she decided that she had nothing to lose and thereupon reported the appellant to the police. On 9 January 2009 she alleged that the appellant had assaulted her, and in interviews on 14 and 20 January 2009 she revealed the full extent of the offences she said had been committed against her.[18]HF agreed that she had earlier been in a violent relationship with a man who was known either as Craig Douglas or Asher. She denied that she had blamed the appellant for violence in fact inflicted by Douglas.[19]We note at this stage that it was the appellant’s case that HF made the complaint on 14 January 2009 as a result of threats from social services that her children would not return to live with her if she maintained her relationship with him. Moreover, he relied on the fact that his previous convictions had been revealed to HF in January 2008. The Commission’s enquiries with the probation service have revealed a police interview with HF dated 10 July 2007, when HF signed and dated a copy of a disclosure notice that confirms that she was given details of the appellant’s previous convictions during that month. Furthermore, there is a note within the files of social services which provides a record of the reaction on the part of HF in August 2007 to the revelation of the appellant’s previous convictions: “… police have told HF of Mr O’Meally’s current convictions and initially she was angry but he is very persuading and she now feels it does not matter and they are writing to each other whilst he is in prison. (Probation officer) described this as all lovey dovey and (they were) talking about moving to Spain together.’[20]In interview on 13 February 2009, following his arrest, the appellant indicated that he and HF were involved in a relationship. He said that they had had vaginal sexual intercourse but when HF fell pregnant this ceased. He stated that they had had sex together in a side street and in an alleyway. He maintained that HF had visited him in Oldbury three or four times a week and that she did not want the appellant to visit her address because this could place her in a difficult position. Save for the sexual relations to which we have just referred, the appellant denied the allegations made against him by HF.[21]In evidence during the trial, the appellant broadly gave evidence that was consistent with his police interview, save that in evidence he accepted that consensual oral sex had occurred, as well as vaginal sex. He maintained that HF was not afraid of him and that he had never forced her to maintain contact. He said that he had left a copy of his previous convictions at HF’s flat along with dozens of letters that she had written to him. His case was that HF pursued him and sought his telephone number. He claimed that she initiated the sexual contact between them and that she loved “ dirty” sex. His account was that they had consensual vaginal and oral sex. He said that he was remanded into custody having breached his curfew on more than one occasion. HF visited him on a regular basis and that she asked the appellant to marry her. He agreed that they sometimes drank at the Junction public house, and he said that on one occasion HF – when accompanied by her cousin – brought him some Viagra. He denied that they had had sex in the area of the public house by the canal. He agreed that he had made arrangements to marry HF but she had failed to attend the ceremony. He believed her protestations by text message that she loved him.

The Reference and the Grounds of Appeal

[22]Following the reference by the Criminal Cases Review Commission, the principal contentions now advanced on behalf of the appellant have been drawn together in a helpful skeleton argument by Mr Butterfield QC dated 6 May 2015. In essence, it is argued that there have been some significant instances of non-disclosure by the prosecution in this case. As a result, it is suggested there is evidence concerning the credibility of HF which was clearly critical to the appellant’s conviction, and which should have formed part of the evidence heard by the jury. It is argued that as a result of the failure by the prosecution to fulfil its disclosure obligations, the appellant was deprived of significant tools that he ought to have been able to utilise in order to undermine the credibility of the complainant. This material falls into four separate categories.

Ground one: the Craig Douglas material

[23]The appellant asserted that HF had previously accused a number of other men of rape and robbery. The Commission investigated these claims, but nothing was uncovered which supported the appellant’s assertion that HF had falsely alleged that other men had raped her.[24]The Commission, however, found evidence that is consistent with the appellant’s contention that HF (along with her sister) had lied when making a complaint of robbery against HF’s former partner, Craig Douglas. Indeed, HF had made three complaints against Douglas. Some of the details of these complaints were disclosed to the appellant’s lawyers in June 2009 (therefore, prior to his trial), although the outcome of the investigations into them does not appear to have been revealed (subject to one caveat considered below). Defence counsel, Mr Edwards, who acted for the appellant during the trial, deployed the disclosed information when cross-examining HF, and in particular it was put to her that she was more frightened of Douglas than she was of the appellant. Mr Edwards sought to contrast the behaviour of Douglas and the appellant, in that he secured the agreement of HF during questioning that Douglas had been violent to her immediately after he was released from prison whereas the appellant, she agreed, was never violent to her save as regards the serious sexual offences with which this case is concerned. She agreed that Douglas had made her life hell. Those questions formed the basis for the assertion that HF had shifted responsibility for the present crimes from Douglas to the appellant, possibly as a result of confusion. HF’s testimony on this issue was summarised by

the judge as follows:

“She agreed that she had been in a violent relationship with Asher, known as Craig Douglas. She said that she had made a statement saying that Asher had just been released from prison and had been violent to her, and that statement was made on 13 October 2008, but she told you she was not confused as to who she was making the allegations of rape against. It was the defendant and not Asher.”
[25]Following that summary, it is necessary to turn to the detail of the three complaints.[26]First, on 20 August 2007 HF complained that Douglas had threatened her with a knife. This complaint was investigated. Douglas was charged, but in due course no evidence was offered at the Magistrates’ court on 22 October 2007.[27]Second, on 13 October 2008, HF made a complaint against Douglas in which she alleged he had arrived at her house during the previous week and she felt she had no option but to let him in. She claimed that he stole her house keys. Douglas was arrested and interviewed. In the event, no further action was taken because there were inherent difficulties with HF’s account. In particular, she had failed to mention a taxi ride taken with Douglas at the relevant time and that she had left a text message for him on his telephone in which she indicated she had given him the keys she claimed had been stolen. Furthermore, shortly before he went to HF’s house, she had written to him declaring her love, her intention that they should marry and inviting him to come to her home. There is a suggestion that the outcome – namely, that no further action was to be taken – had been communicated to the appellant’s solicitor. On the documentation, and in particular on the relevant log, it seems unlikely that this happened. Even if the result was revealed, however, it is clear that the appellant’s lawyers were not told the reasons why no charge was brought.[28]Third, on 11 November 2008, HF made a further complaint about Douglas. She suggested he had taken her mobile telephone from her by force in Wolverhampton city centre. This complaint was investigated; the appellant was charged; and his trial took place on 13 and 14 May 2009 (some four months prior to the appellant’s trial). During Douglas’s trial HF and her sister gave evidence. HF was found to be a thoroughly unreliable witness.

The judge in upholding a submission of no case to answer, observed:

“…. I shall just briefly say for the record that I am in no doubt whatsoever that this is under the test in Galbraith, both on limbs one and limb two, a case such as that should not go any further. It cannot be left the jury. In relation to HF’s evidence, the jury could not find her a reliable witness. She has not told the truth within her own evidence today in court. She has contradicted herself on key matters, in particular the question of the keys and whether she gave him any keys or whether she did not. Therefore, in relation to that, the case is taken at its highest on her evidence is not something that should remain with the jury.… in relation to the evidence of (HF’s sister), she contradicts her sister directly on the major points about the incidents on that day.… their accounts… are mutually inconsistent and the jury would not be able to be clear about which one they could rely on.… she (the sister)… makes it clear that there is no reliable evidence that this crime are has in fact ever been committed.”
[29]The cases of the appellant and Douglas were investigated by the same police force, namely the West Midlands police. Some officers were aware of both cases, and in particular Police Officer McAndrew would have known of HF’s involvement in both trials.[30]Mr Butterfield suggests it was inevitable that the appellant’s previous convictions would form part of the evidence in the trial, and he highlights that before HF had completed her evidence the judge had made a ruling to this effect. He submits that a robust approach should have been taken as to the appellant’s criminal record, and in particular counsel ought to have suggested to HF that she had crafted false allegations which fitted with his previous convictions. It is his contention that the Douglas material, if it had been disclosed in its entirety, would have enabled the appellant to suggest that HF tended to make complaints against her sexual partners if the relationships became oppressive and that she had used the appellant’s convictions for this purpose.[31]We note that it would appear that the CPS lawyer who had responsibility for the case and prosecuting counsel were unaware of the outcome of these three allegations.[32]The appellant complains, therefore, that the information provided to the appellant’s solicitors in the instant case was improperly restricted to certain logs which revealed that HF had made complaints against Douglas, as set out above, and that his lawyers were not told about the result of the three allegations (save possibly as regards some limited information concerning the stolen house keys). It is also highlighted that it was not revealed that HF had sent letters to Douglas which, in certain important respects, mirror the expressions of love and the desire to marry which she expressed to the appellant. As set out above, HF started using the appellant’s surname and similarly she adopted the name of Douglas in her letters to him.[33]It is undoubtedly the case that the credibility of HF was one of the central issues at the trial. It is undisputed that HF admitted in evidence that she lied to police officers and social workers about her relationship with the appellant, and that she lied to the appellant (as well as to certain police officers) as to whether she was pregnant and about having had an abortion. It was the appellant’s case that her lies were not restricted to those matters, but permeated the entire case.[34]The appellant wrote to his solicitor in March 2009 stating that HF had told him that after she made the complaint of robbery against Douglas, she asked her sister to make a statement falsely alleging that she had witnessed what had occurred. Although the appellant’s solicitor did not write to the prosecution asking for the outcome of these three complaints or this alleged false statement, they sought disclosure of other matters relating to the credibility of HF.[35]The respondent accepts that this material should have been provided to the appellant’s lawyers, and that it would have been admissible if the appellant had decided to deploy it. That said, Mr Grieves-Smith for the Crown asserts that this non-disclosure is essentially irrelevant because the appellant would not have utilised this material. Furthermore, it is argued that in any event it does not have the significance for which the appellant contends.[36]In our view, it was a serious failing on the part of the West Midlands police that they did not alert either prosecuting counsel or the solicitor who was responsible for this case within the Crown Prosecution Service to the outcome of the three events concerning Douglas, as set out above. The potential relevance of this material was palpable and there are significant lessons to be learnt in this regard.[37]Notwithstanding that serious failing, whilst it is quite clear that the appellant’s counsel at trial deployed suggested inconsistencies and lies on the part of HF – indeed, the trial judge prevented counsel from developing certain lines of cross-examination in this vein – we are of the view that on careful analysis the significance of the evidence relating to the three Douglas incidents is not as great as it appears at first glance.[38]For the first incident, there is no information as to why no evidence was offered at the Magistrates’ Court. This is simply unexplained.[39]As regards the second incident, whilst it is correct that HF had provided contradictory accounts, the context (viz. it was a relatively minor allegation of theft) was entirely dissimilar to the circumstances of the present case.[40]With the robbery allegation – the third Douglas incident – the judge, when allowing the submission of no case to answer, focused particularly on the circumstances of the second incident (viz. the theft of the keys), given they were investigated in evidence during the trial. Furthermore, she concluded that HF and her sister’s evidence were in many ways markedly contradictory. Most critically she decided, on the basis of the account of HF’s sister, that it was possible that no robbery had occurred at all. Her ruling ended as follows:
“That leaves me in the position that I have already indicated that essentially there is no reliable evidence that this crime has been committed and I shall direct the jury to acquit the defendant.”
[41]In all the circumstances, in our judgment this material is to be approached in the following way. The first incident, which involved Douglas threatening HF with a knife, was available to be used by defence counsel to support the appellant’s contention that Douglas had acted in a violent manner towards her. In that sense, it was to the appellant’s advantage that the jury were unaware that no evidence had been offered on the charge preferred against Douglas following that event. Additionally, there was no explanation available as to why the prosecution had not been pursued. The second and third incidents overlapped, because the second incident featured significantly during the trial of the alleged robbery. The theft of the keys, as we have already indicated, was a relatively minor crime and it was self evidently of a totally different nature to the profoundly serious allegations advanced in the present case. Defence counsel for the appellant in this trial was able to highlight and emphasise numerous contradictions within HF’s evidence, and the discrepancies in her account concerning this earlier and wholly unrelated case of theft involving another man would not have added significantly, in our view, to the jury’s understanding of the character and reliability of HF in the present case. Finally, it is critical to observe that Judge Bush in giving her ruling on the submission of no case to answer in the Douglas trial highlighted the contradictions between HF and her sister but she did not indicate which account she preferred or whether she concluded that they were both lying. As we have just emphasised, the judge was particularly impressed by the fact that, on the account of HF’s sister, it appeared that no crime had been committed.[42]It follows that the results of these three incidents would not have provided the appellant with a significant opportunity to undermine the evidence of HF. We do not accept the submission of Mr Butterfield that it revealed a pattern of lies on the part of HF, which demonstrated that she invented allegations against her partners when the relationships became oppressive. This evidence simply does not provide the foundation for a conclusion of that kind and we do not accept, had it been available to be deployed before the jury, it would have had any significant impact. The evidence that was available in this context, and the form in which it was disclosed, provided instead the foundation for the appellant’s case as regards Douglas, namely that he had behaved in a violent way towards HF (he had been accused of threatening her with a knife and robbing her) and that HF had transposed the roles of the appellant and Douglas. We note, furthermore, that the appellant chose not to pursue the potential line of cross-examination that HF had persuaded her sister to lie about an incident at which the latter had not been present (as set out above, the appellant indicated in a letter to his solicitors that he was aware of this potential line of attack).

Ground two: the Social Services material and some other Police material

[43]It is accepted that notwithstanding the request by the appellants’ lawyers for disclosure of any relevant material held by social services, no information was forthcoming. On 28 July 2009 the solicitors wrote to the Crown Prosecution Service making the following request:
“We would be grateful if you could please advise us as to whether or not there are any relevant documents that you may have or are privy to in relation to the social services involvement with the children and the complainant. In particular, we wonder whether you have any information as to whether social services were anxious for HF not to have the children in her care if our client remained in contact with her.”
[44]It would appear that this request remained unanswered and it was not pursued.[45]As indicated above, HF stated in evidence that the appellant insisted, and she accepted, that he had been sentenced for robbery. She testified that she had not believed the information which the police and the representatives of social services provided on this subject, and it was her account that she only became aware of the true nature of his offending when she saw the record containing his antecedents in January 2009. It was at that stage that she decided to make the complaint against him on the basis that she had nothing to lose. At the very end of her evidence, HF said that she believed the appellant when he told her that the police had told her lies about his previous convictions and that she accepted his account that he had been incarcerated for robbery.[46]Although the jury was aware that the complainant had received information in January 2008 concerning the appellant’s past convictions, it is contended that the position at trial would have been markedly different if the court had been provided with the complete picture as regards the level of her knowledge in this regard.[47]We note that HF arguably downplayed the significance of the information she received in January 2008, in that she maintained that no details which she believed had been provided by the authorities. She testified that she had not understood the full history of his offending as set out in the document she signed in January 2008. Instead, she said “It was just the odd one or two things” and “They told me he couldn’t be in the same room or live with a woman. That’s all they told me. They weren’t allowed to tell me anything else”. Furthermore, HF appeared uncertain as to whether she read the document before she signed it in January 2008.[48]A summary of the correct position was set out in the Admissions that were before the jury, as follows: 12. On 3 January 2008, (HF) signed a document in the presence of PS Babbs and Geraldine Lynch from Social Services.That document disclosed some details of the defendant’s previous convictions.It was disclosed that the defendant had committed rapes and indecent assaults on women.(HF) was told that the defendant had forced women to have sex against their will, acted violently towards them, threatened them and caused injury, including putting a screwdriver to the neck of a victim when she was three months pregnant. (HF) was also told that the defendant had forced a woman into a graveyard and forced her to have oral sex. She was further told that the defendant attacked a prostitute, forced her to perform oral sex, was violent towards her and made her drink urine. (HF) signed the document and above her signature it states, I fully understand the contents of this report.[49]Undisclosed to the defendant was that within the social services files there is an entry for 3 January 2008 in which it is recorded that HF said that she knew about the kidnapping, rape and other offences. She also said that the appellant had admitted that he had raped someone. In a similar vein, there is an entry for 9 January 2008 in which it is recorded that HF indicated that the information set out in admission 12 (above) had been accepted as true by the appellant.[50]On 10 July 2007 HF was informed additionally by way of the same formal disclosure notice that the appellant had these grave convictions recorded against him, spanning the years 1972 and 1998. HF declined to make a statement on that occasion but she signed the exhibit label on the original notice, thereby acknowledging receipt of it.[51]As part of the argument for the appellant it is suggested that HF could not have avoided, marginalised or misrepresented her level of knowledge following the meeting in January 2008 if it had been appreciated that this was the second occasion when she had been provided with that information. HF emphatically denied that she had been provided with the detail of the appellant’s antecedents, saying in evidence “I didn’t know. Do you think I would carry on if I knew what he was like?”[52]In our judgment, notwithstanding the able submissions of Mr Butterfield, there could have been no doubt that the jury appreciated the significance of admission 12, in which the appellant’s previous convictions were set out. Indeed the judge summed up the evidence in this regard in the following way: ”Then Mr Edwards was given permission to raise two matters which he’d not covered earlier in relation to her explanation for only going to the police some seven weeks after the defendant was sent back to prison, in relation to the disclosure of the paperwork to her, and it transpires that the police and Social Services together had told her about this background a year earlier, in January 2008, and she’d been warned in January 2008 not to associate with him, so that she was aware, you were told, the nature of the man that she was seeing, and she said to you that the defendant had told her that it was all lies and that she believed the defendant. The police were lying, and that he been in prison for armed robbery.”[53]Although the material contained within the social services files, and including the material relating to July 2007, essentially put the matter wholly beyond doubt, nonetheless in our judgement it was sufficiently clear that HF had been informed of these matters and would have understood what was being said to her. Given the unequivocal nature of admission 12, it admitted of no other sensible conclusion.[54]We accept, additionally, the argument of Mr Grieves-Smith that there would have been significant dangers for the appellant if he had attempted to deploy this information, if disclosed. Most particularly, it is clear from the Social Services’ records that the appellant accepted that he had committed the offences about which HF had been informed: this was in direct contravention to his case at trial. Although Mr Butterfield is entitled to argue that a defendant will craft the detail of his trial tactics on the basis of all the information in the case, he is not entitled to maintain that he would have given a different account in evidence if he had been aware of the material that was improperly withheld. Put otherwise, it is not open to an appellant to say that he would have given a different account to the jury in order to exploit an alternative evidential scenario.[55]We deplore the fact that the prosecution failed to disclose these matters to the appellant – an error for which the police seemingly bear responsibility given they were fully aware of the existence of these records – but in the final analysis we do not consider that this serious omission has had any material impact on the safety of the appellant’s convictions.

Ground three: the Telephone Records

[56]It is suggested that the telephone evidence was deployed in a way which was highly damaging to the appellant, in that it was used to depict him as dominating and controlling. In this respect, there were two key documents before the jury.[57]First, there was an unchallenged document utilised at trial entitled the “Memory Analysis Report” which contained a selection of the text messages exchanged between the appellant and HF. We note in passing that this document was compiled in a conspicuously unhelpful way, because the text messages are not itemised in chronological order and it is difficult to establish, apart from the content of the messages, whether the author was the appellant or HF. At trial the appellant was able, therefore, to cross-examine HF on the basis of an agreed selection of text messages that she sent to, and received from, the appellant.[58]Second, there was a schedule before the jury that had been compiled by an intelligence analyst, dated 2 September 2009. This document was disclosed to the appellant’s lawyers but it only revealed the telephone calls and text messages that emanated from the appellant’s telephone. When re-examining HF during the trial (on 21 September 2009), Mr Shakoor, counsel for the Crown, focused particularly on telephone calls and text messages made and sent by the appellant between 15 November 2008 and 24 November 2008, and he based his questions on this one-sided schedule. The purpose of this questioning was to illustrate the high frequency of contact emanating from the appellant’s telephone. In her evidence HF had said that the appellant would contact her “all the time. I’d speak to him all through the day”. She also testified “I knew it weren’t right. I had to listen, to answer him. He did phone me all the time. I weren’t getting no sleep because I had to talk to him all through the night, and it was making me ill.” It was, furthermore, HF’s evidence that she only contacted the appellant by telephone because she was compelled to do so because she was in fear of him.[59]It is argued on behalf of the appellant that it was unfair for the Crown to criticise the appellant’s telephone usage whilst withholding relevant evidence which purportedly revealed a different picture, in the sense that there was an additional schedule which demonstrated that both HF and the appellant used their telephones to contact each other. It was dated 12 December 2008 and it is headed “Restricted. For intelligence purposes only”. It was compiled by an intelligence analyst and it lists telephone calls and text messages initiated by both telephones for the period 12 November 2008 to 24 November 2008. Of particular interest, between 12 November 2008 and 16 November 2008 there were a number of occasions when HF contacted the appellant. For the period 12 – 15 November 2008, there were thirty-eight attempts by HF to contact the appellant by telephone. The appellant did not respond. On 16 November 2008 HF used her telephone to contact the appellant on 30 occasions, whereas he only responded once. It is to be noted, however, that for most of the remainder of the period covered by this schedule the overwhelming preponderance of the communications (which were considerable) were from the appellant to HF.[60]In essence, Mr Butterfield suggests that the failure to disclose this schedule undermined the fairness of this trial, because the prosecution presented a distorted picture on a critically important issue in the case.[61]We disagree. As the respondent highlights, it was accepted – certainly as a matter of generality – that the appellant and HF telephoned and sent text messages to each other. Although this evidence reveals a period of intense contact, or attempted contact, on the part of HF during a relatively short period of time, that is not inconsistent with HF’s evidence that she was acting out of fear. The schedule of text messages before the jury revealed beyond doubt that HF initiated contact with the appellant, sometimes using sexually explicit language. In those circumstances, although we again deprecate the failure by the prosecution to disclose this evidence, it does not add significantly to the position as it was put before the jury.

Ground 4: Contact during the Trial

[62]The appellant submits that notwithstanding the warning that the judge gave in open court that there should be no contact between the police officers in the case and HF over a three-day weekend adjournment whilst HF was giving evidence (the cross-examination of HF was adjourned between the evening of Thursday 17 September 2009 and the morning of Monday 21 September 2009), there are reasons to conclude that Police Officer McAndrew was in contact with her.[63]This ground of appeal was unsurprisingly only faintly argued by Mr Butterfield. The instruction by

the judge to HF at the end of her evidence on Thursday 17 September 2009 was as follows:

“Good. Now, you are of course now in the middle of your evidence so do not speak about your evidence to anybody else, just clear your head of everything and we will start again on Monday morning, all right?”
[64]Following the trial, DC Alderwick was asked to provide a statement regarding the investigation into the appellant. Her statement, dated 29 July 2013, included the following: In regards to the nature and it extent of (PC McAndrew’s) role in the complaint by (HF) against (the appellant), my understanding is that her role was minimal. I was aware that (McAndrew) would not speak to (HF) about the detail of her complaint and was interviewed by (another officer). While the trial was taking place, (McAndrew) told us on the DV team that (HF) was not doing well at court and was feeling intimidated. Over the weekend she had offered (HF) some support but I don’t know if she actually saw her in person or if this was done over the telephone and I don’t know what was said. (…) I became aware that (McAndrew) had been the point of contact for (HF) over the weekend adjournment when I returned to work on the Monday morning and (McAndrew) told all of us on the team that she had offered (HF) some support over the weekend. Again, I don’t know what this support consisted of.[65]There is no evidence that Police Officer McAndrew spoke to HF about her evidence, or that she otherwise disobeyed any instruction by the judge. The judge told HF that she was not to speak to anyone about her evidence. There was no order prohibiting contact with police officers who were providing support to this witness who was considered to be a victim of serious domestic abuse.[66]This ground of appeal is accordingly without substance.

The Case against the Appellant

[67]Although in one sense the case concerned the credibility of HF, the appellant gave evidence during the trial with the result that his credibility also became a central issue for the jury to assess. He denied that anal intercourse took place, and it follows from the verdicts that the jury disbelieved him on that issue. Furthermore, in many respects this was a strong case against the appellant which was dependent on a number of different strands. First, his previous convictions provided powerful evidence as to his propensity to commit offences of this kind and the circumstances of the appellant’s previous convictions and the present trial contained strong similarities as regards the nature of the conduct alleged against the appellant. Second, the evidence HF gave about a black handled mug which she testified the appellant used in order to make her drink his semen (which he brought in his jacket pocket when they met) was potentially of high significance. In interview the appellant denied owning a black and white mug. His evidence was that HF had never been to his room and that he had never carried a mug in her presence. When his room was searched, two mugs were found, one of which was black and white. Although in one of his letters to HF the appellant referred to his wish to “piss” and “cum” in a cup, HF would only have known about the cup or mug’s black and white colouring if she had seen it with the appellant. Third, he sent a large number of letters to HF in which he referred in graphic terms to his wish to have anal sex with her. In evidence, he said that this was simply the expression of a fantasy which he committed to paper at the request of HF. Given his previous convictions, this purported explanation must have weighed significantly against the appellant. The jury returned unanimous verdicts of guilty after deliberating for little more than two hours.

Conclusion

[68]It follows from the conclusions set out above that notwithstanding the failure by the prosecution to comply with its disclosure obligations, taking all the circumstances of the trial into account – including the strength of the case against the appellant – there is no realistic possibility that a court would have arrived at different verdicts had the necessary disclosure been made. The key task for the judges on an appeal of this kind is to decide whether the fresh material (viz. the undisclosed evidence) renders the verdicts unsafe. In this regard, the correct approach was helpfully summarised by Hughes LJVP in Mushtaq Ahmed (2010) EWCA Crim 2899 at paragraph 24: The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury’s deliberations, since ex hypothesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We have had the advantage of seeing the analysis of Pendleton [2001] UKHL 66; [2002] 1 Cr. App. R. 34 and Dial [2005] UKPC 4; [2005] 1 WLR 1660 made recently by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99 – 101) and we entirely agree with it. Where fresh evidence is under consideration the primary question “is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.” (Dial). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial.[69]For the reasons set out above, we do not doubt the safety of the convictions and in the result, these verdicts are safe.

Postscriptum

[70]We add that we are grateful to the Criminal Cases Review Commission for their careful investigation into these matters – it is evident that painstaking care has been taken to obtain and analyse all the relevant undisclosed material – and we consider it entirely appropriate that this case was referred to this court, given the highly regrettable history of non-disclosure. The impact of these failings by the prosecution has required careful judicial determination. The Commission provided this court with a high degree of assistance, to which we wish to pay tribute. If this case had come to the court by way of section 31 Criminal Appeal Act 1968, it would undoubtedly have been necessary to hear the prosecution on the merits as part of a full appeal, thereby justifying the grant of leave.[71]Similarly, the court is indebted to Mr Butterfield and Mr Grieves-Smith for their succinct, focussed and realistic submissions.[72]During the course of his submissions Mr Butterfield did not address the sentence imposed by judge, an issue that had been raised by the Commission and to which there was reference in the appellant’s skeleton argument. The Court assumed that this matter was no longer pursued. However, in his comments on the draft of this judgment, Mr Butterfield indicated that this remains a live issue. As a result we give the respondent until 4 pm Friday 29 May 2015 and the appellant until 4 pm on Friday 5 June 2015 to file any final written submissions on this discrete matter. The court will thereafter hand down a reserved decision.

Cited in 2 later judgments