Graham Ronald Head v R [2024] EWCA Crim 1487

[2024] EWCA Crim 1487Case No 202302168 B2 /202302887 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE GOLD KC
47CC3555822
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 December 2024
Before
LORD JUSTICE WILLIAM DAVISMRS JUSTICE FARBYHIS HONOUR JUDGE LEONARD KC
Between
GRAHAM RONALD HEADAppellantREXRespondent
Ms Francesca Levett and Sophia Kerridge (instructed by Old Bailey Solicitors) for AppellantMr Jose Olivares-Chandler (instructed by CPS Appeals & Review Unit) for RespondentHearing Hearing dates : 19 November 2024
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 6 th December 2024 by circulation to the parties or their representatives by e-mail..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.Section 4(2) of the Contempt of Court Act 1981 provides that, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in any proceedings, or in any other proceedings pending or imminent, the court may order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.  The court having ordered a re-trial in this case, it is ordered that the reporting of the appeal proceedings and of the judgment of the court shall be postponed until the conclusion of the re-trial.  The Crown Prosecution Service will notify the Registrar that the re-trial has concluded no later than 7 days from the date of its conclusion.NOTE – THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY, THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981.IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.LORD JUSTICE WILLIAM DAVIS :

Introduction

[1]On 2 June 2023 after a trial occupying three weeks before HH Judge Gold KC and a jury sitting in the Crown Court at Lewes Graham Head was convicted of one offence of kidnapping (count 1), one offence of attempted rape (count 2) and one offence of assault by penetration (count 4). On 24 July 2023 the trial judge imposed an extended determinate sentence of 23 years on each count concurrently. The custodial term was 18 years and the period of extended licence was 5 years.[2]Graham Head has leave from the single judge to appeal against both conviction and sentence. At the hearing of the appeal on 19 November 2024 he was represented by Ms Francesca Levett. The respondent prosecutor was represented by Mr Jose Olivares-Chandler. Both counsel appeared at the trial.

The evidential background

[3]Counts 1 and 2 related to the same complainant to whom we shall refer as C1. On the evening of 18 November 2022 C1, a young woman, was out with friends in Brighton. By the early hours she was drunk. She also was affected by cocaine which she had taken during the evening. On a road near the seafront a car pulled up beside her. The driver was the appellant. According to C1 the appellant said that he was an Uber driver and that he had just finished his shift. Her account was that this persuaded her to get in the car with him. This was the basis of the count of kidnapping i.e. by fraud. The appellant’s case was that he had seen C1 when she was stepping into the road in front of him. He had stopped and had asked if she was all right. C1 seemed distressed. He offered to call her a taxi. When she said she did not have enough money, he offered to drive her home.[4]The journey in the appellant’s car lasted for much longer than it would have done had the appellant driven directly to C1’s home in Hove. The car stopped more than once. Eventually the appellant stopped the car close to C1’s father’s home. C1 was in the back seat. Her evidence was that the appellant got out of the car having put on dark latex type gloves. He came to the back of the car where she was lying across the back seat. He opened the rear door, came into the back of the car and lifted up her top and her bra. He touched her breasts. This happened more than once. C1 then realised that the appellant had pulled her jeans and underpants down to her ankles. He was standing outside the car but her appreciation was that he was about to rape her. C1 kicked him hard in the crotch. The appellant ran to the driver’s seat and drove away at speed.[5]C1’s account was that she had left her mobile telephone in the car. As the car drove away she was able to see the number plate. She then ran down the road screaming for help. Two people stopped to help her. She was provided with a mobile telephone with which she called 999.[6]The appellant agreed that he had driven around for some time with C1 as a passenger. This was because his satnav device could not access the address he had been given by C1. He eventually arrived at an address which C1 recognised as her father’s home. He helped C1 out of the car. He then drove away at a normal speed. His case was that her telephone must have been left by her on the roof of his car and had fallen off at some point during his journey away from C1’s father’s address. This was why it was the telephone was found on his route home. The proposition that he had deliberately thrown it from the car to avoid being tracked down via the mobile telephone was false. The appellant accepted that there were latex gloves in his car. He said that they were for use when his car had engine problems, in particular with the cooling system.[7]It follows that, in relation to C1, there was no dispute about the appellant’s identity. He accepted that he had picked up C1 in his car and that he had driven around for some time before leaving her. The issues were whether he had tricked her into getting into the car and whether he had engaged and/or tried to engage in sexual activity with her. The prosecution relied on the evidence of C1 supported by the evidence of immediate complaint by C1 in circumstances of considerable distress. In respect of the allegation that he had said that he was an Uber driver, reliance was placed on the finding of a business card in the appellant’s possession which bore his name and number with the legend N-Uber and a picture of a car. Whilst it was not said that this card was produced to C1, it was alleged that it supported C1’s evidence as to her initial encounter with the appellant. The appellant relied on the following: he had delivered C1 back to her father’s home; C1 had high concentrations of alcohol and prescription drugs in her system which would have been likely to affect her understanding of what was going on and/or to create false memory; he had not driven away at speed as was demonstrated by CCTV evidence.[8]Count 4 concerned a different young female complainant to whom we shall refer as C2. On her account she went out for the evening of 18 August 2022 with friends in Brighton. By the early hours she was drunk. With a friend she tried to get into a club opposite Brighton Pier but it was closing. Her next recollection was sitting on a pavement near to Preston Park which is north of the centre of Brighton. She was texting a friend. She was about to order an Uber to go home. She said that a man who was older than her 53 year old father came up to her. The man unzipped her shorts and put his hand inside her underpants. He digitally penetrated C2. C2 tried to push the man away. The man grabbed her by the arm and pulled into the park where he continued to penetrate her digitally. That continued until she managed to get hold of her mobile telephone. She texted her friend to say that she was being raped. The friend immediately called C2. When the mobile telephone rang, the man ran off.[9]The prosecution case was that, whilst C2 undoubtedly was the victim of an assault by penetration, it had not occurred where she said that it did. Rather, they said that C2 had been assaulted in Hove Park. This is also a park north of the centre of Brighton but around 1 ½ miles west of Preston Park. This case was based on the movement of C2’s mobile telephone as appeared from cell site evidence plus the fact that C2’s friend had gone to meet her. The friend had met C2 when C2 was hiding in a bush of a road leading away from Hove Park.[10]It was said that the appellant was responsible for the assault by penetration because a car similar to his was seen on CCTV footage in Church Street in the centre of Brighton in an area close to where C2 was last seen on the footage. Although there was no direct evidence that C2 had got into the car, that was a proper inference given that the car was picked up thereafter moving towards Hove Park.[11]The appellant’s case was that he had been in Brighton on the evening in question but that he had no knowledge of C2. He had not picked her up. He had not driven to Hove Park. Evidence from banking records showed that he had been at various premises in Central Brighton. He said that he had visited Brighton in order to visit music venues. He had not picked up C2 or any other young female.[12]C2 complained of the assault during the day of 19 August 2022. The appellant was only arrested in relation to that offence after his arrest in relation to the incident in November 2022. A video identification procedure was held in which C2 failed to identify the appellant as her assailant. Rather, another man on the video was identified by her. DNA samples were taken from C2. No link was found to exist between DNA recovered from the samples and the appellant’s DNA.[13]The prosecution case against the appellant was entirely circumstantial. He had had the notional opportunity to commit the offence because he accepted that he was in Brighton at the relevant time. Beyond that the case depended on interpretation of CCTV footage and telephone evidence. We have not set out the detail of the circumstantial evidence. It required quite close analysis by the jury of disparate strands of evidence.

The trial

[14]Following the complaint of C1 and the linking of the appellant’s car to the events relating to C2, the appellant was sent for trial on 21 November 2022. The core evidence was served in time for a PTPH due to take place on 19 December 2022. An application was made to dismiss the transfer. The application meant that arraignment did not take place until 20 April 2023. By this point additional evidence had been served. This included the evidence of three females named Glendinning, Alsop and Hanford. At the same time that the evidence of these females was served, the prosecution made a bad character application. The application could not be said to have been prolix. Under the heading “Facts of the Misconduct” it was stated that the witnesses “will give evidence of (the appellant’s) behaviour towards them when on a night out plus contact afterwards”. The section headed “Reasons why the evidence is admissible” simply stated “Section 101(1)(d)”.[15]Ms Levett responded in writing to the application. She argued in relation to C1 that the evidence was irrelevant. The appellant admitted that he had picked her up in this car. The issue in her case was whether sexual misconduct had occurred thereafter. The evidence of the three females said nothing about any sexual behaviour on the part of the appellant. As for C2 the evidence about her being picked up by the appellant did not come from her. Rather, the prosecution relied on circumstantial evidence to contradict her account as to location and circumstances of the sexual assault. The appellant denied any contact with C2. The bad character evidence did not support the proposition that he did pick her up in his car. Ms Levett went on to argue that admission of the evidence of the three females would lead to satellite litigation which would detract from the proper focus of the case.[16]The judge considered the application to admit this evidence once the other evidence had been called. He heard oral argument from the prosecution as well as the defence. We were told that the prosecution expanded on the application in the course of oral argument. What they said is apparent from the ruling made by the judge at the conclusion of the oral argument. The proposition advanced was that the evidence of the three females demonstrated a propensity on the part of the appellant to entice young women into his car late at night when they were incapacitated through drink or drugs. This went to a primary issue in the case in relation to C2 i.e. had she got into the appellant’s car? It also supported the case in relation to C1 albeit that how it did so was not clearly defined. The judge accepted these arguments and adopted them in finding that the evidence was admissible. He also found that the evidence of one of the females about the appellant having said that he was a taxi driver was relevant. Finally, the judge said that the appellant having made contact with the females after the event (as evidenced by messages on the appellant’s telephone) had “possible romantic implications which may again be of some value in assessing the situation in relation to the (C1 and C2) allegations”. The judge dismissed the argument that the trial would be disrupted by satellite litigation.[17]The first female to give evidence was Rhianna Hanford. On 6 August 2021 she had been out in Kingston upon Thames. She had had a lot to drink. She was walking home to Surbiton. As she did so she was stumbling. The appellant drew up in his car. He said he was a taxi driver. He offered her a lift. She accepted. The appellant dropped her close to her home but not immediately outside her address. Hanford believed that she gave the appellant £10. On 29 August 2021 the appellant came to her address. He had a bangle which Hanford had left in the car. He left it on Hanford’s doormat at her request together with a business card which described him as a VIP personal assistant. Hanford then sent a message to the appellant thanking him and offering to buy him a drink. The appellant did not go for a drink with Hanford. He did send her messages asking if she wished to keep in touch. Nothing further occurred between the appellant and Hanford. Rihanna Hanford in the course of her evidence suggested that there was something sinister about the appellant having come to her home on 29 August. She did not understand how he knew where she lived.[18]The second person to give evidence was Kirsty Glendinning. On 17 October 2021 she was in Eastbourne town centre. She was very drunk. In the early hours she set off to walk home. She fell to the pavement not long after setting off. The appellant (who was on foot) came up and asked if she was ok. He helped her up. He accompanied her for a short distance. Glendinning said that she felt a little uneasy. There came a point where he disappeared. When she was almost home, she fell over and banged her head. Her mother and a friend, Ben, came out to assist her. They wanted Glendinning to go to hospital but she was refusing to do so. At that point the appellant drew up in his car. He offered to take her to hospital. Ben pushed her into the car. He accompanied Glendinning on the journey to the hospital. All three of them went into the emergency department. Glendinning said that the appellant was persistent in asking if she wanted him to stay but she said no. About a month later Glendinning happened to see the appellant in a pub in Eastbourne. They had a conversation. They saw each other again in the same pub when they met by chance. Glendinning said that, on those occasions, the appellant appeared to be chatting her up.[19]The final female to give evidence was Gemma Alsop. On an evening in September 2021 she had been out drinking in Eastbourne. She was very drunk. She began to walk home on her own. As she did so, a man grabbed her and tried to pull her onto a nearby recreation ground. She managed to get away from the man. She ran off in the middle of the road. She was crying as she ran. The appellant drove past her. He turned his car around and asked Alsop if she wanted a lift home. He said that he was or had been a taxi driver. Alsop got into the car for the journey home which lasted only a very few minutes. She sat in the front passenger seat. The appellant touched her on the thigh. Alsop said that this may have been an effort to comfort her because she was still very distressed. Though she could not remember it, she said that she must have given the appellant her telephone number. When she left his car, she went to give him a peck on the cheek. The appellant turned towards her so that the kiss was a peck on the lips. There was some contact between Alsop and the appellant following this encounter. It was apparent that Alsop was in financial difficulties. The appellant was prepared to help her. Eventually contact between them petered out.[20]The prosecution also called evidence from a PC Gipp. In the early hours of 11 April 2022 he had stopped a car being driven by the appellant on the outskirts of Brighton. His suspicions had been arisen because the car had come out of a road which led to a power station and to various industrial premises. In the back of the car was a female in her twenties. She had an Eastern European accent. She was clearly drunk. The appellant said that the female had got in his car believing he was an Uber driver. She was drunk so he felt it was best to take her home. The appellant was asked why he had come out of the road leading to industrial premises but this “didn’t come to anything”. The female made no complaint. However, the police took her home and the appellant went on her way.

The ground of appeal

[21]The principal ground of appeal is that the evidence of Hanford, Glendinning, Alsop and PC Gipp ought not to have been admitted. It was argued that the admission of the evidence resulted in unfair satellite litigation. The incidents had not been reported at the time. Thus, they had not been sufficiently investigated to enable the appellant to have a fair trial. It was also submitted that the evidence could not be relevant to C2’s case because there was no direct evidence that she had been enticed into the appellant’s car. In those circumstances, the evidence that the appellant had given lifts to other females was of no probative value at all. That evidence was being used to bolster a weak case. A further argument raised was that the evidence of the females could not found a suggestion that the appellant had enticed them into his car. The word “entice” in this context had a pejorative connotation. The most that could be said was that the appellant had offered the females a lift. In the case of Glendinning she had been put into the appellant’s car by her friend, Ben.[22]The remaining grounds of appeal relate to the judge’s questioning of PC Gipp and of the appellant and to the approach taken in the judge’s summing up of the evidence. The submission is that the judge gave evidence himself about the local geography when PC Gipp was giving evidence, that the judge repeatedly challenged the appellant as he was giving his evidence and that the summing up was unbalanced because the judge failed to put the appellant’s case fully and fairly to the jury.[23]The respondent’s answer to the principal ground is that the judge properly admitted the evidence. It was relevant to the appellant being someone who picked up vulnerable young females under the pretence of being a taxi driver which gave him the opportunity sexually to assault the female in question. It demonstrated a targeting of young females. Even if that were wrong, the admission of the evidence did not render the convictions unsafe. The witnesses were available to be cross-examined. In some respects what they said in cross-examination supported the defence case i.e. that the appellant was simply a good Samaritan.[24]As to the other grounds the respondent submitted that the questioning of the judge amounted to no more than reasonable clarification of the evidence. The summing up was unbalanced insofar it dealt with the prosecution evidence at greater length than the defence case. However, in dealing with that evidence, the judge identified aspects of it which might have been regarded as unsatisfactory. Any lack of balance was simply a function of the fact that the prosecution had called much more evidence than the appellant.

Discussion

[25]We do not consider that the secondary grounds of appeal provide any basis for concluding that the convictions were unsafe whether considered individually or cumulatively. The judge’s interventions probably were more than strictly necessary. It is not easy for us to gain a flavour of the number of questions he asked or of the intensity with which they were put. We do not have a transcript of the appellant’s evidence. Ms Levett provided a note of six different passages of questions which occurred at various stages of the appellant’s evidence. We proceed on the basis that these passages were ones on which Ms Levett wished particularly to rely. At no stage was the appellant prevented from explaining his case. For instance, there came a point at which, on the day of the incident involving C1, the appellant had got into his parked car and had driven away. The judge asked him why he did so. The appellant said that he was looking for somewhere to park not on double yellow lines and that he was intending to go to another music venue. The judge pointed out that everything was within two minutes of each other in the centre of Brighton. The appellant explained that some music venues were further out of the centre. He said that he believed that he went in the direction of these venues. This exchange was typical of the matters of which Ms Levett made complaint. In our judgment, although the interventions may not have been truly necessary for the jury’s understanding of the evidence, they fell well short of the kind of judicial cross-examination which demonstrates that the judge has descended into the arena.[26]We agree that for the judge to pose leading questions to PC Gipp about the local geography was unhelpful. He doubtless believed that he was assisting all parties by clarifying the evidence so as to ensure accuracy. If he unwittingly misled PC Gipp, his intervention had the opposite effect. However, this was not a significant part of the case against the appellant: rather the precise reverse. PC Gipp’s evidence did not concern C1 or C2. On any view his evidence of marginal impact only. The judge’s approach did not affect the safety of the convictions.[27]The criticism of the summing up of the evidence is two-fold. First, it is said that the judge made errors in relation to some aspects of the evidence. Second, the judge failed to refer to gaps in the prosecution case which could have undermined the circumstantial case in relation to C2. We will deal with the second point first.[28]The summing up concluded shortly after 3.00 p.m. on 1 June 2023. Nothing was said about the content of the summing up at that point. The jury were brought back to court at 4.30 p.m. Before they came into the courtroom Ms Levett told the judge that the appellant had asked that the judge should remind the jury of the absence of any scientific evidence linking the appellant to either complainant. The judge’s response was to say that he reminded the jury of evidence they had rather than evidence they did not have. He further pointed out that Ms Levett had referred to this feature of the case in her closing speech. No other matter was raised by Ms Levett whether on that afternoon or during the following morning before the verdicts were returned shortly before lunchtime.[29]We do not agree with the proposition that, in a circumstantial case, a judge can ignore gaps in the evidence. They are as much part of the circumstances as positive evidential features. The judge recognised this in his legal direction to the jury in relation to circumstantial evidence. In directing them that they were not to engage in guesswork, he drew attention to the defence argument that there were too many gaps in the evidence and too many unanswered questions. The judge did not refer to the gaps and unanswered questions. However, he began his legal directions by emphasising that, whilst he would refer to prominent features of the evidence, the jury had to decide the case having regard to the whole of the evidence. The jury had agreed facts in writing. The third section of the agreed facts consisted almost exclusively of matters relevant to and assisting the appellant’s case. They set out the scientific findings – or, to be more accurate, the absence of such findings. Another judge might have referred to matters set out in the third section of the agreed facts in the course of their summing up of the facts. For this judge not to do so did not mean that the summing up was unfair. Ms Levett made no comment at the end of the summing up. It was only at the close of the court day that she raised any issue with the judge. We do not criticise her for not doing so earlier. She was entitled to reach the conclusion that the summing up was not subject to any fundamental unfairness.[30]As for factual errors in the summing up none was ever identified to the judge in the course of the trial. His summing up of the evidence lasted for about two hours. There was a break in the middle for lunch. Neither at 1.00 p.m. nor at the end of the summing up shortly after 3.00 p.m. were any errors raised with the judge. At least one error relied on is not substantiated when reading the transcript. A complaint was made of the judge not mentioning a particular financial transaction when in fact he did refer to it in clear terms. Some of the errors referred to in Ms Levett’s very detailed advice and grounds were of no significance. Insofar as there were any that could be described as being of some materiality, their cumulative effect was not sufficient to affect the overall balance and fairness of the summing up. Ms Levett’s failure to draw any error to the judge’s attention is not be construed as a criticism of her. Rather, it is an indication of the insignificance of any minor factual errors there may have been.[31]We turn to the principal ground of appeal. We have summarised the arguments of the prosecution as put to the judge at the trial and as summarised and adopted by the judge. It is unsatisfactory that these arguments were not set out in writing. For the prosecution to explain the reasons why bad character evidence is admissible with a bald reference to a sub-section of section 101(1) of the Criminal Justice Act 2003 is wholly inadequate. The prosecution failure led to a lack of focus when the application was being considered. Was the behaviour described by Hanford, Glendinning and Alsop and witnessed by PC Gipp reprehensible conduct as required for it to come within the bad character provisions? If it was not, how was it relevant to the issues which the jury had to determine in relation to C1 and C2? If it was, what was the important matter in issue between the parties to which it was relevant?[32]The judge’s written directions in relation to the evidence with which we are concerned were as follows:
“No suggestion is made that any offences took place on any of those occasions but there are a number of features of similarity which cause the prosecution to ask you to consider whether this pattern of picking up intoxicated young women late at night under the premise (the prosecution say) of being a taxi/uber driver is indicative of a man with a sexual motive for wanting very drunk women in his car rather than someone with a tendency to feel the need to drive around at night time looking for women who need looking after because they have had too much to drink. The prosecution’s case is that GH has a tendency to target vulnerable, drunken women and persuade them to get into his car, holding himself out as a taxi/uber driver acting out of kindness. This then presents him with the opportunity to sexually abuse the woman in question if the opportunity arises. The defence case is that he is acting out of the best of motives and genuine concern for the welfare of the women in question. He denies posing as an Uber/taxi driver although he accepts that the women may jump to that conclusion in some cases. Obviously, if you think it is or may be the case that GH was acting throughout as a good Samaritan, you should ignore those earlier incidents. However, if you are sure those earlier incidents indicate that GH had a sexual motive in giving these women lifts in his car then that may support the prosecution’s case in relation to whether the allegations made by IC and JC are true and whether JC was enticed into his car in Church Street in August 2022 as the prosecution invite you to conclude from a combination of the CCTV evidence and the data analysis set out in your documentation for the night in question. You must not convict GH wholly or mainly because of the earlier incidents. The fact that someone has acted in a particular way in the past does not prove that he did so on this occasion. Those earlier incidents may only be used as some support for the prosecution case if, having assessed the evidence, you are satisfied that it is right so to do.”
The critical passages in this direction are the judge’s question as to whether the appellant’s actions were “indicative of a man with a sexual motive for wanting very drunk women in his car” and the judge’s description of the prosecution case, namely “that GH has a tendency to target vulnerable, drunken women and persuade them to get into his car, holding himself out as a taxi/uber driver acting out of kindness. This then presents him with the opportunity to sexually abuse the woman in question if the opportunity arises.”[33]If the evidence of Hanford, Glendinning, Alsop and PC Gipp did permit the inference that the appellant’s motive in having drunk women in his car was sexual, that would be evidence of reprehensible behaviour on the part of the appellant. It would tend to support the prosecution case that he had sexually assaulted C1 and C2. We cannot see how such an inference could be drawn from this evidence. In closing the prosecution case, counsel said that the relevance of the evidence was that it demonstrated a “tendency to approach females on their own late at night when they were in a state of vulnerability and to lure them into a car under the auspices of helping them to get to where they needed to be”. Leaving aside the pejorative use of the word “lure”, this behaviour could not be said to be reprehensible conduct. Mr Olivares-Chandler drew our attention to how he had put the case to the jury to support an argument that the evidence of Hanford and the others helped the appellant as much as it disadvantaged him. This argument was put forward in the hope of demonstrating that the convictions were safe. The jury could have concluded that C1 had simply been the beneficiary of the appellant getting her to where she needed to be. This proposition is misconceived for two reasons. First, the prosecution did not make that argument to the jury. They introduced the evidence to support their case. At no point did they abandon the evidence as being of no probative value. In our view, the way in which counsel addressed the jury in closing was less than helpful. The jury were given no assistance as to why the prosecution said the evidence was relevant. Second, and more important, the judge’s directions of law made it clear that the evidence of Hanford and the others had the potential to demonstrate a sexual motive. Whether the evidence did have that effect was left for the jury to determine. At no point did the judge restrict the relevance of the evidence as set out by the prosecution in closing their case.[34]In our judgment the evidence of Hanford and the others did not support any sexual motive. We have set out the essentials of the evidence of each of the witnesses. Hanford’s expression of concern about how and why the appellant had come to her front door is inconsistent with the text she sent to the appellant on the same day as his visit returning the bangle. This read in part:
“….I can’t believe you just dropped that back to me….I can’t thank you enough for your kindness – firstly for the night you dropped me back and for dropping my bangle!.....I can’t believe your selflessness – no one has ever been so nice to me! I would love to buy you a drink or something to say thanks….You’re amazing and that has completely cheered me up in my isolation. Rianna x”
Glendinning would not have got into the appellant’s car at all had it not been for her friend, Ben, pushing her into the back. Ben later messaged the appellant saying “can’t thank you enough – what you did is everything – you are an angel”. The potential for the trip with Alsop to have some sexual connotation was largely removed by her evidence that the appellant may have been trying to comfort her after another man had tried to attack her. In summing up her evidence the judge suggested that Alsop could have been seen as taking advantage of the appellant’s goodwill before contact between them ceased. Nothing is known of the female who was in the car with the appellant when PC Gipp saw them. What can be said is that she made no complaint to the police when she was no longer in the appellant’s company. With the exception of Glendinning, the opportunity for the appellant sexually to assault the females had arisen. Evidence that the opportunity had been taken was completely absent.[35]All that the evidence from the different witnesses demonstrated was that the appellant was someone with a tendency to pick up females who were drunk or otherwise intoxicated. In relation to C1 such a tendency was of no probative value at all. In relation to C2 the prosecution case was that she had been picked up by the appellant. This case was entirely circumstantial. Insofar as it might be supported by another instance of the appellant behaving in a similar way, that support could only come from the incident involving C1. The judge gave a cross-admissibility direction. He told the jury to consider first the counts in relation to C1. If they were to convict the appellant of those counts, that could support the prosecution case that it was the appellant who had committed the offence against C2. That direction demonstrated the correct approach. There was no dispute that C1 had been with the appellant. The issue was what had happened. If the incident with C1 was proven to have a sexual element, that would be something the jury could consider when deciding on the count relating to C2.[36]To introduce the evidence of Hanford and the others provided the jury with no assistance at all. Rather, because that evidence could not be used in the way in which the jury were told by the judge that it could, it served to mislead the jury. There will be cases in which the jury hear evidence which is inadmissible because it has no relevance where the effect on the outcome of the trial is insignificant and/or is outweighed by the overall strength of the evidence. This is not such a case. The jury were left with a substantial body of evidence which had no relevance to the issue of whether a sexual assault had occurred. Despite that, they were told that it might have some relevance to that issue. We cannot be satisfied that these convictions were safe in those circumstances.

Conclusion

[37]It follows that the convictions on all counts must be quashed. It is unnecessary for us to review the sentences imposed. We were told at the hearing that the prosecution propose to re-try the appellant. We shall order a re-trial on the indictment on which the appellant was tried in 2023. That indictment contained lesser alternative counts which the new jury must have the opportunity to consider. The appellant must be arraigned within 2 months of the order of the Court giving effect to this judgment. We order that a Presiding Judge of the South Eastern Circuit must direct at which court the appellant should be re-tried. We consider that the re-trial ought to be before a different judge.