Rehman, R v [2017] EWCA Crim 106

No: 201405119 C1/201405118 C1/2014 05114 C1[2017] EWCA Crim 106
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 24 January 2017
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
MR JUSTICE LEWIS
MS JUSTICE RUSSELL DBE
R E G I N A
v
SHAKEAL REHMAN
BEKIR RASHEED
USMAN ALI
Computer Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
Mr N Worsley appeared on behalf of the Appellant REHMAN
Mr S M Khan Appeared on behalf of the Appellant RASHEED
Mr N Worsley appeared on behalf of the Appellant ALI
Mr T S Storey appeared on behalf of the Crown
J U D G M E N T
Between
RehmanDefendantRCrown

LADY JUSTICE HALLETT:

[1]Reporting restrictions apply to this judgment to protect the identity of the complainant. Introduction[2]On 2 October, at the Sheffield Crown Court, the three appellants were convicted of various sexual offences. Rehman was convicted of trafficking and rape and was sentenced to a total of 12 years’ imprisonment. Rasheed was convicted of trafficking and sentenced to 4 years’ imprisonment. Ali was convicted of sexual activity with a child and sentenced to 3 years' imprisonment. All three appellants appeal against conviction with leave of the full court on the basis of criticisms of the disclosure process and of the trial judge His Honour Judge Durham-Hall QC. Rasheed and Ali also apply for leave to appeal against sentence.[3]The co-accused, Mohammed Shuib Shapal, was convicted of one count of trafficking and one count of sexual activity with a child under 16. He too was sentenced to 4 years' imprisonment. Yaseen Amini was convicted of one count of trafficking and one count of sexual activity with a child under 16 and he was sentenced to a total of 66 months' imprisonment. Facts[4]On 5 August 2014, the complainant, whom we shall call C, was aged 13 years old. She ran away from home in Sheffield. She travelled to Bradford to meet a male named Atif, whom she considered her boyfriend. An extensive police search for her ensued. She was found a week later on 12 August 2013 in Bradford. She disclosed to the police that during her time away sexual offences had been committed against her by a number of males.[5]A number of Achieving Best Evidence (“ABE”) interviews were conducted with her lasting approximately ten and a half hours. The prosecution accepted and opened to the jury that in the first interviews she told many lies and concocted detailed but false stories. They relied on the last interviews, in which she described offences committed by the appellants.[6]She maintained that when she arrived in Bradford she wandered around in a distressed state, she met a man named Said (who has since left the UK) and spent two nights with him at his home address, during which time he had sex with her. She left his address on 8 August after he had verbally and physically abused her. She again wandered around the centre of Bradford and encountered the co-accused Shapal (nicknamed ‘Baby’) and the appellant Rehman. She got into their car and they took her to a hotel. CCTV footage captured their arrival at reception.[7]Mr Andrew Mead, a manager of the hotel, thought the people he saw at reception looked in the "17/18/19 age bracket". The woman insisted she was 18, claimed she was recently divorced and had travelled from London. Mr Mead thought it prudent to ask for identification because she appeared to him ‘reasonably young’. A letter addressed to Mrs Z Rehman was produced. Shapal paid £40 for the room.[8]Jabran Mahmood is the son of the hotel owner. He also saw C at the hotel when she came to reception to ask for tea or coffee. She told him she was 22 but he did not believe her. She looked to him to be 13 or 14. He accepted she could have been older, 17 or 18.[9]In the hotel bedroom, both Shapal and Rehman had sex with C. Shapal told her he loved her and wanted to marry her and she consented to sex with him. She claimed Rehman raped her.[10]The next morning, Shapal left the hotel and did not return. C came downstairs at about 11.30 am. She was captured on CCTV footage more than once. She became upset when she realised Shapal was not returning. She spent the day walking around and she was outside the hotel when another car pulled up. She was approached by the driver of that car, Ali. She got into his car and he drove her to a car park where sexual activity took place. Ali then took C back to the hotel and left. When Shapal failed to appear she made her way to a nearby park. She was by this stage in some distress and she approached a man and asked for help. He arranged for her to stay at a friend's house for the night.[11]The next day she wandered about the city centre. She approached a group of three and asked if she could walk with them into town and use their mobile phone. According to them she gave the name Ayesha, which she later denied.[12]She telephoned Said and went off to meet him. She spent the next day at Said's house. After significant telephone contact between the accused, the appellant Rasheed arrived. Said and Rasheed took her in Rasheed's car to another flat in the centre of Bradford. This was the home of Amini. At the address were a group of adult males including Amini and one other girl. The prosecution maintained that C was taken to the flat with the intention that sexual activity would take place.[13]C stayed the night at the address and slept in the same bed as Amini. During the night he kissed her. She said she told him she was 13 but he still had sexual intercourse with her. In the morning, Rasheed asked Amini if he had "done that thing with her".[14]The next day, the police spoke to the appellant Rehman by telephone. He directed them to where C could be found. She was taken back to Sheffield, medically examined and her underwear forensically examined. Evidence of sexual activity with a number of males was found. A major DNA profile of Rehman was present on material on her bra. DNA profiles of Ali and Amini were present in her underpants.[15]The appellants were arrested in August 2013 and interviewed. Rehman and Ali gave no comment interviews. Rasheed answered questions. On 1 October 2013, C formally identified Rehman and Shapal. It is necessary to rehearse in summary the defence case for each so as to put in context the limited nature of the issues before the jury.[16]Rehman’s defence[17]In evidence, the appellant Rehman stated that C had approached his car when he was stopped at traffic lights. He thought she was a prostitute. She appeared happy, although she claimed her sister had died and she had lost a baby. He thought she was aged 18 to 19 and attractive. It was Shapal who said he wanted to book a hotel for the girl. He provided the identification letter and his only reason for returning to the hotel was to retrieve it. He had no intention of having sexual intercourse with her. He was told by the management that the letter was with the complainant in the bedroom. The complainant asked him to stay and started to rub his penis. He said they then had consensual sexual intercourse and when he left she appeared to him fine. He told ‘Baby’ what had happened and ‘Baby’ ‘dumped’ her. It was also him who provided the information that led the police to her. C blamed him for both. Rasheed’s defence[18]The appellant Rasheed did not give evidence; he relied on his account to the police in interview, in which he stated that he was in Bradford visiting his friend Amini. Out of the blue he received a call from Said, who was an acquaintance he had only seen a few times. Said was keen for Rasheed to visit him, so he went to Said's address and met the complainant. She was introduced to him as Said's girlfriend. Rasheed then told Said that he was going to Amini's flat and Said asked if he could join him. Rasheed contacted Amini to ask his permission and then drove Said and the complainant to Amini's address. Whilst there, the complainant and Said had an argument and Said left. The complainant remained at the flat.[19]The following day, he went into town with Amini, leaving the complainant at the flat. He received a call from Said to say he had returned to the property. Rasheed, went back to the flat and found both Said and the complainant there. He then drove Said to his home to collect some items belonging to the complainant and dropped Said back at Amini's flat; after which he drove to his own home.[20]A summary of his interview was put the before the jury and they took it with them in retirement. Despite a request from Mr Khan, for Rasheed, the judge declined to remind the jury of the contents of that summary. Ali’s defence[21]On 15 November 2013, Ali was interviewed and provided a pre-prepared statement in which he denied the allegations. He stated he had had a number of sexual relationships over the previous few months with females, all of whom had been 18 or over.[22]He was re-interviewed on 15 January 2014 and again gave a prepared statement in which he stated that he had picked women up in his car but any sexual contact had been consensual.[23]He gave evidence at trial in which he accepted he had had sex with the complainant on the back seat of his car. His memory had been jogged by the retrieval of his DNA from her underwear. He believed that she was 18. She had called herself Ayesha and did not tell him she was only 13. He said she had approached his car while he was stopped at a red light and engaged him in conversation. She had got into his car. She had started to put her hands on him and told him to park up, which he did. They had then had unprotected sexual intercourse. He said there were no signs she did not want to participate. Rulings[24]The judge was asked to rule on two issues at the ground rules hearing that took place just a matter of days before the trial and at the trial itself that are relevant to this appeal. They were the playing of the ABE interviews in their entirety and evidence as to the complainant's character.[25]Playing of the ABE interviews.[26]We have no specific ruling in relation to the playing of the ABE interviews. We understand that having been advised by the intermediary that putting lies and previous inconsistencies to the complainant would only serve to confuse her and make her evidence impossible to follow, the judge concluded that it was not necessary or desirable for the first four interviews to be played. The first four amounted to five hours of interview. He felt that the remaining eight or more hours or interview which were to be played were sufficient. He allowed a summary to be put before the jury containing the most obvious lies in the earlier interviews and he allowed Mr Worsley, defence counsel, to select and play a 20-minute clip from the earlier interviews that showed the complainant's demeanour when producing elaborate and fabricated accounts.[27]Complainant’s character[28]The defence sought the judge's permission to put a number of matters before the jury relating to C's character. They were based on material from school and social services records. They revealed a number of people believed that C was an habitual liar who would make up allegations against people.[29]Having been provided with a list of the matters defence counsel wished to adduce, the judge considered the material globally. He ruled that, in the main, the material consisted of personal opinions and views of social workers and teaches who had the care of the complainant. He noted there was no “hard evidence of proven untruths”. He referred to the dangers of satellite litigation and to public policy in not discouraging teachers and social workers from keeping full and frank files on troubled children. He was not prepared for the bulk of the material to go before the jury. He was satisfied that the jury had sufficient from their observations of the complainant in the ABE interviews, from permitted cross-examination, from other witnesses and from the admissions that the Crown were prepared to make so as to be able to form a proper assessment of the complainant. He did, however, direct that the material touching upon Shapal and Rehman directly, for example where she spoke about Shapal, should be admitted. The appeal against conviction[30]The full court gave leave to appeal on three grounds common to the three appellants and one further ground in respect of Rasheed. Ground 1: The judge's refusal to admit material in relation to an allegation made against Sebi/Qaiser Mahmood.[31]Social services records revealed that the complainant had made allegations about a man known as Sebi. She claimed that Sebi, with whom she had had a relationship, had appeared near her home, had remained for hours pestering her and had attempted to abduct her; in so doing he had caused scratch marks to her arm. She repeated the allegation to the police. However, her mother gave a contradictory account and said that, on the day in question, C had not left her house at all. When her mother's account was put to her, C admitted that had she had made up the attempted abduction; the scratch marks had been caused accidentally. Her reason for making up the incident was because she hated Sebi.[32]Sebi Mahmood was someone with whom she had undoubtedly had some form of sexual relationship. As a result of her initial complaint about him, he was charged with rape. When his case was listed for trial, he offered to plead guilty to two offences of sexual touching. The prosecution accepted those pleas.[33]Mr Worsley, for the appellant's Rehman and Ali, supported by Mr Khan, sought to rely upon this incident because it demonstrated(1) the complainant had admitted lying about what happened about her;(2) she persisted in a lie, giving a detailed account to the police;(3) she produced evidence to support the lie (the scratch marks);(4) she made up the allegation through animosity towards Sebi. There is a considerable difference between someone making up things to account for her movements whilst a runaway and deliberately and repeatedly lying to get somebody into trouble. On Rehman's case his behaviour could have caused her to hate him in the same way she had hated Sebi and therefore may have led to another display of malice. C's credibility was central to the trial. The failure to admit the evidence meant the jury did not get a sufficiently full and fair impression of her.[34]Mr Storey, for the respondent, explained that the basis for the judge's refusal to admit this material in evidence was its lack of relevance to the case and uncertainty about what happened. It is true that the prosecution accepted pleas from Sebi Mahmood short of rape but it does not follow that all her allegations against him, whatever her admissions, were false. In any event, the judge was anxious to keep the trial within reasonable bounds and to limit the case to a consideration of the circumstances relating to the complainant's time in Bradford and to the mental state of the accused. On that basis, he invited us to find that the ruling was well within the judge’s discretion. Ground 2: Admissibility of the ABE interviews[35]The appellants contend that the Crown refused to play all the complainant's ABE interviews because they did not all accord with their case. They may have made some admissions in relation to lies C had told but the jury were unable to assess properly how she behaved when she had told those lies. Furthermore, the judge's decision meant there was no chance to challenge her fully about those lies. The judge should have allowed the defence to submit the earlier interviews to the intermediary for her comments in the same way as the questions to be asked in cross-examination were submitted in advance for her to decide whether it would be appropriate to play them.[36]Mr Worsley also complained about the timing of the playing of those parts of the interviews he was allowed to play. It would have made more sense and would have been fairer to all to play the passage from the earlier interview when she gave her evidence so that the jury could see it in context. As it was, the clip was played during the defence case.[37]Mr Storey countered with the assertion that he thought it necessary to play only the later interviews because what C said in them was verifiable by objective evidence. He felt, and the judge agreed with him, that it was unnecessary and it would take up far too much time for the jury to see the interviews in their entirety. He did not ignore her early accounts or lies; he not only referred to them in opening, he agreed to put details of them before the jury and was content that part of the earlier interviews was shown to the jury. He was happy for this to take place at any time during the trial; it was defence counsel's decision for it to be done during the defence. Ground 3: The BBC documentary[38]At trial, Mr Storey was unaware that during the police investigation into this case a BBC documentary about South Yorkshire Police had been filmed. Others did and they included the constabulary itself, specific officers, the appellants and their solicitors.[39]The documentary shows a police officer visiting the hotel in Bradford where some of the offences were alleged to have taken place when investigating C's disappearance. The officer viewed CCTV footage showing the complainant in the presence of people from the hotel. On the documentary film, an unidentified male voice commented that the girl seen on the hotel CCTV footage looked like she wanted to be there at the hotel. The police officer replied, "You've got to bear in mind her age, she's 13".[40]On the last occasion this matter came before the full court it was thought that the unidentified male was one of the witnesses who had given an opinion as to the age of the child. His estimate of C’s age (and how she appeared) may have been coloured by what the officer said. Complaint was made that the existence of this film had not been disclosed.[41]However, during the course of today’s hearing we learned that the witnesses who opined as to the complainant's age accepted at trial that they knew of C’s exact age before they gave their estimates to the police and that the unidentified male was not one of them.[42]Mr Worsley shifted his ground. He now maintains that his inquiries suggest there may be audio recordings of the complainant that should have been discovered and disclosed. The hotel manager/owner, Mr Tariq Mahmood, can be heard saying of the CCTV system that "it voice records", albeit only in the reception area. He also appears to comment: "You can hear what he says", referring to Mohammed Shapal, (‘Baby’) in the reception area. If there was audio on the CCTV, and it seems from questioning of another suspect that the officers were aware there might be, Mr Worsley demanded it be found and disclosed. This could be highly significant evidence both to provide insight on C’s relationship with the appellants and because she is captured within minutes of the alleged rape in the reception area and talking to people. We were invited to adjourn for further inquiries to be made about the possibility of retrieving the hard drive and any audio recording on it.[43]According to Mr Storey that would be pointless. Inquiries have been made and nothing is forthcoming. All the material that can be found had been disclosed. Ground 4 - Rasheed[44]Rasheed faced the single count of trafficking in that it was said he drove C to a "party" at the home of Amini with the intention that Amini should have sexual intercourse with her. The summary of the appellant's interview was six pages long. It set out the appellant's case that he had driven the complainant and Said to Amini's flat at the request of Said and with the consent of Amini. He maintained he had no idea any sort of sexual activity was going to take place, although conceded he was aware the complainant and Amini slept in Amini's bedroom and he knew there was only one bed in that room. Rasheed complains that the judge failed to summarise his case to the jury in terms and or sum up the contents of this interview. Mr Khan described the failure as significant because, unlike his co-accused, Rasheed did not give evidence. The only reference to his case directly is where the judge reminded the jury they had a copy of his interview summary and he did not intend to rehearse its contents.[45]Reliance was placed on the decision in R v Cadwell & Curley 2004 [EWCA] Crim 2395, in which the same argument was run. Curley had not given evidence or called any witnesses but he had given a detailed account of rather complex financial transactions that formed the basis of the charge of conspiracy to defraud. The court held that it was not enough for the judge simply to tell the jury to read the transcripts of the interview, on the facts of that case. Mr Khan suggested the judgment has broader relevance. May LJ, giving the judgment of the court observed at paragraphs 73 and 74:
"It needs to be emphasised and emphasised again that it is the plain duty of a judge summing up a criminal case to a jury to put fairly and sufficiently the defence case. Where a defendant has not given evidence, and in addition has not called any evidence on his behalf, there is no evidence from the witness box in support of that defence other than such evidence as has been gleaned by one way or another from other witnesses which have been called. Where that defendant who has not given evidence has been interviewed in detail and has given an account in interview which is relevant to their defence and which so far as it goes contains their defence, that is evidential material in the way that we have described and it is the duty of the judge, in our judgment, in putting the defence case properly and fairly to make such proper and structured reference in summary to the material in the interview which constitutes the defence case in the criminal trial. That we conceive to be a principle which applies to the present case and in our judgment the judge failed to live up to it. We also accept and emphasise that it will only be in an exceptional case that, such a failure in the summing-up having taken place, this court will conclude that nevertheless the conviction of a defendant subjected to that kind of a summing-up should be regarded as safe. The task of this court is of course to identify whether trials have been properly conducted and whether in particular they have been conducted fully and fairly and whether the judge's summing-up has been a proper, full and fair one. But the statutory function of this court considering an appeal against conviction is to consider whether, nevertheless, if we reach that conclusion as we do in this case, the conviction is safe. If nevertheless we conclude that the conviction is safe, then the appeal will fail, notwithstanding the failure of the judge such as we have indicated."
[46]Mr Storey did not accept that these observations could properly apply to this situation. Rasheed had not been interviewed in detail about complicated issues at the heart of the alleged conspiracy. The appellant's case was very simple: he did not know that any sexual activity was going to take place with the complainant and did not believe or intend that it should. His case turned entirely on his own state of mind, which was why no questions were asked of the complainant in cross-examination by counsel for the appellant.[47]The judge directed the jury at the outset of his summing up that he was not going to read out to them anything of which they had been given a copy. He referred a number of times to the appellant's summary of interview, telling the jury he was not going to summarise it because they had a copy and they could see for themselves what the appellant had said about the complainant, his assessment of her and of the situation. The summary would not have taken the jury long to read. The judge also directed the jury that the issue for them to consider in relation to the appellant's interview was whether what it told the police was the truth. During his closing speech, counsel for the appellant reminded the jury of the contents of the interview.[48]Defence counsel also reminded the jury that Rasheed’s position was in reality no different from one of the prosecution witnesses who had met the complainant in Bradford and who had arranged somewhere for her to stay. He had not been prosecuted. Counsel emphasised more than once that that it is not an offence to give someone a lift or "chill out in a car with them".[49]Mr Storey conceded that Curley suggests that as a general rule, where a defendant has not given evidence, there is an obligation on the trial judge to sum up those parts of the interview that constitute his defence at trial, particularly where the account was lengthy or complicated. That is not the position here. In the alternative, he sought to place this case within the category of exceptional cases to which May LJ referred in Curley in that the safety of the conviction has not been undermined. Conclusions[50]This case involved a vulnerable child with very real difficulties in understanding and communication. She gave her evidence through an interpreter and required the services of an intermediary. It followed inevitably there would be restrictions on cross-examination and on the material that could be put directly to her. It was the duty of all parties, including the judge, to facilitate her giving evidence and to ensure her evidence was tested appropriately, without confusing her or causing her unnecessary distress. It was not necessary or desirable for every aspect of the defence case to be put to her directly. As has been observed by this court on more than one occasion, if the defence wish to put before the jury a number of previous inconsistent statements made by a witness, they do not have to confront the witness with each and every one of them, in direct questions or by playing her ABE interviews, particularly when the witness is as vulnerable as C. A list of inconsistent statements can be produced and agreed with the prosecution and adduced in evidence by way of admission.[51]We therefore endorse the judge's approach which was to elicit from counsel a series of admissions covering the areas considered relevant and to allow the defence to play an excerpt from the interviews (in the absence of the witness) so that the jury could judge her demeanour (to the extent that was not obvious from the interviews the Crown wished to play). In any event, it became clear during the course of argument that a number of inconsistencies in her account were put to the witness without objection. We assume the judge had been notified in advance so that he could ascertain the views of the intermediary as to the nature and form of the questions.[52]Finally, on this ground, we note that when the defence case statement was drafted it was made clear that the defence wished the jury to see all the ABE interviews in their entirety and in chronological order as a coherent whole. However, the defence also posed as a suitable (and fair) alternative the Crown’s making of admissions. This is what happened, supplemented by the playing of a quite lengthy passage showing C’s demeanour when lying. We are satisfied, therefore, that the jury was given a sufficient summary of the earlier ABE interviews, sufficient detail of the lies told and sufficient material to show C’s demeanour.[53]We turn to the ruling on the ‘bad character’ of the complainant. Mr Worsley had very properly and carefully itemised each of the matters that he wished to put to the witness or to adduce by way of admission. HH Judge Durham-Hall dealt with the issue globally. With respect to the judge, it would have been preferable for him to go through the list in a little more detail stating which category was admissible and which category was not. Because this did not happen, it took us some time this morning to ascertain the extent of the judge’s ruling.[54]One thing is clear the judge did not allow evidence of the ‘false’ allegation of attempted abduction against Sebi Mahmood. Initially we found this surprising. The Crown could have made an admission as to the details of the complaint of abduction to the police and the circumstances of its withdrawal (together with any admissions as to lies) without, it seemed, involving any satellite litigation or examination of the witness as to her sexual history. We therefore shared the full court's concern on the last occasion. However, we now understand that the situation was far from straightforward. The allegation involved a different set of proceedings in which the complainant had made a number of allegations, at least two of which were accepted by the defence to be true. It is not clear the basis for the Crown's accepting Mahmood’s pleas, why they abandoned the other allegations, or the circumstances in which the complainant retracted the attempted abduction allegation. A degree of satellite litigation may well have been inevitable.[55]Accordingly, having considered the matter with great care, and in the light of the numerous other lies told by the complainant put before the jury, we are satisfied the judge’s ruling was within the bounds of his legitimate discretion.[56]As far as the BBC documentary is concerned, the defence had ample material upon which to comment as to the complainant's demeanour on checking in with the appellants and after the alleged rape. They had the CCTV footage from which the jury could see for themselves; they had witnesses from the hotel. There was nothing on the CCTV footage to suggest C was distressed when checking in or immediately after the alleged rape. Mr Worsley did not identify for us anything that might be on the audio (if it exists) that might advance the defence case in any significant way. We refused the adjournment for further inquiries to be made, as it seemed to us that they were likely to prove fruitless.[57]This was a case where the jury had considerable material upon which they could assess the complainant and her character. She was a vulnerable and troubled child. She did not always tell the truth, if it suited her purposes to lie, even when speaking to the authorities. No doubt the jury would have looked very carefully at what she said and asked themselves whether it was consistent with the objective evidence.[58]In any event, as important as her credibility was, the principal issue for each of the appellants was their own state of mind. The case against each of them on that issue was strong.[59]Rehman found a young girl wandering the streets, got her into his car and drove to a hotel. He produced false identification for her to allay the suspicions on the hotel manager. He had sex with her. There were two issues: consent and belief in age.[60]Ali also picked up a young girl he found wandering the streets, made no apparent attempt to check her age, had sex with her and then put her out of his car. There was one issue: belief in age.[61]Rasheed had significant contact with his co-accused shortly before he drove C to the flat, which in itself raised considerable suspicion. His explanation of why he drove Said and C to the flat was far from satisfactory. He drove a young girl whom he had never met to a flat where it must have been obvious to him that the occupants of the flat did not plan a party. They planned sexual activity. That is why, as he well knew, C shared a bed and bedroom with a man she had only just met, whilst he slept in the sitting room. The next morning he asked the man if he had done "that thing to her".[62]The last ground advanced by Rasheed caused us more concern. Given the number of defendants and the length of the trial (3 weeks), we have no doubt that it would have been preferable had the judge reminded the jury in greater detail of Rasheed's defence, either by way of summarising the specific issues in his case or by reminding the judge of the contents of the interview. With respect to him, the judge should have listened with greater care to Mr Khan, who did his best to persuade him. However, this is not a Curley situation and ultimately the only test for usis the safety of the conviction.[63]The issue in Rasheed’s case was extremely straightforward and the advocates made that plain throughout the trial and during their submissions. The interview summary was short and easy to read. The judge directed the jury as to the elements of the offence in clear terms. It must have been abundantly clear to the jury from that direction and from all that gone before what the issue in his case was. They could only work their way through the elements of the offence with which he was charged by focusing on his mental state and what he had said in interview. The judge reminded the jury more than once to focus on what the appellant said in the interview.[64]In all those circumstances, we are satisfied that the judge's failure in express terms to remind the jury of the contents of the interview has not undermined the safety of the conviction. 65. Sentence[65]We now turn to the application as far as sentence is concerned. Both those seeking leave to appeal their sentence were of previous good character. Rasheed was aged 37 and Ali 21 by the time of conviction.[66]Mr Khan, on behalf of Rasheed, argued that the sentence was excessive and the starting point adopted too high. The judge chose a starting point for the trafficking offence higher than the starting point he adopted for Amini, who had committed the offence of sexual activity with a child, in addition to the trafficking offence.[67]Mr Worsley, on behalf of Ali, criticised the judge’s placing the offending in category 1A of the Guideline on the basis that there was "a significant disparity in age between the applicant and the complainant" and for taking the complainant's case taken at its highest. The judge thereby sentenced on a flawed factual basis. It was also said that the judge failed to give sufficient weight to the applicant's good character, the stressful effect of the arrest and the fact the applicant was arrested for more serious offences than those of which he was ultimately convicted. Conclusion on sentence[68]Rasheed’s offence of trafficking was a category 1 offence within the Guideline and the closest culpability was category B. This provided the judge with a starting point of 6 years. There was little by way of mitigation. Nevertheless, the judge took off a third to reflect that personal mitigation. In our judgment, it is not arguable that he should have taken off more. There is no substance in the disparity point, even if Amini should consider himself fortunate.[69]Ali’s offence of sexual activity with a child was a category 1A offence. There was a significant disparity in age of the kind the Sentencing Council had in mind. A 20-year-old grown man had sex with a 13-year-old child. Further, it was for the trial judge to determine the factual basis for sentencing and it was a matter for him the extent to which he was satisfied the complainant's account had been established. Category 1A has a starting point of 5 years. Again the judge made a very considerable reduction in the circumstances to reflect the personal mitigation and 3 years cannot be described as excessive.[70]For all those reasons, therefore, as indebted as we are to all counsel, we are satisfied that the appeals against conviction and the applications as far as sentence is concerned, must be dismissed.