R v "ALJ" [2024] EWCA Crim 1600

[2024] EWCA Crim 1600Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 10 December 2024
Before
LORD JUSTICE STUART-SMITHMR JUSTICE DOVEHIS HONOUR JUDGE FORSTER KC(Sitting as a Judge of the CACD)
Between
REXCrown“ALJ”DefendantREX“ALJ”_________MS D WHITE appeared for Appellant.MR M WILSON appeared for Crown._________The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. The prohibition has not been waived or lifted in this case.Approved Judgment
[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of any doubt, we have not waived or lifted the prohibition, on the contrary, we direct that this case be known henceforth by three letters to be determined and the complainant victim shall be referred to as “C”.[2]On 22 January 2024, in the Crown Court at Mold before HHJ Petts, the appellant (who was then aged 45) was convicted of four counts of sexual assault and one count of causing or inciting a child to engage in sexual activity. He was acquitted of a further count of sexual assault. On 1 March 2024, he was sentenced as follows. On count 1 of the indictment, which was a charge of sexual assault, contrary to section 3 of the Sexual Offences Act 2003, upon his conviction he was sentenced to 7 years and 3 months’ imprisonment. On count 2, which was a further count of sexual assault, upon his conviction he was sentenced to 5 years concurrent. On count 4, which was a count of causing or inciting, contrary to section 10 of the Sexual Offences Act 2003, upon his conviction he was sentenced to 4 years concurrent. On counts 5 and 6, each of which were counts of sexual assault, upon his conviction he was sentenced to 4 years on each concurrent. The total term of imprisonment therefore was 7 years 3 months’ imprisonment. Other ancillary orders were made, to which we do not need to refer further.[3]He now appeals against his conviction with the leave of the Single Judge.

The Facts

[4]The appellant and C’s mother began a relationship in 2017 and by 2018 they were living together. Also in the household was C’s older sister and her sister’s fiancée. The appellant and C (who was at that time aged 13) got on well. C described how the appellant made a special effort with her, watched films with her and spoke about personal issues with her.[5]The relationship between the appellant and C’s mother ended in April 2021. However, in early 2022, C (who was then aged 16) told her mother’s subsequent partner that the appellant had touched her sexually. C said that she had found out that the appellant’s new partner had children, had been thinking about the incidents and did not want it to happen to anybody else. Following that disclosure, C was interviewed by the police on two occasions about her allegations. Of their general relationship she said she was close to the appellant and that on one occasion the appellant purchased drugs for her because she wanted to know what it felt like. On another occasion he finished off a tattoo for her with his tattoo gun. On a different occasion she drank alcohol with him and a friend and danced with him.[6]Of the sexual touching, C told the police that it began in April 2019, when she hit her head on a radiator causing it to bleed. The appellant got her to sit on his knee to look after her but she apologised because she realised he could see her underwear under her dress. C said the appellant laughed and said he was not complaining. At the time she was shocked by his comment but did not think much of it as it was just a comment. Approximately 1 month later, she was watching a film with the appellant on the sofa. The appellant was lying behind her and they had a blanket over them. After around 20 minutes, the appellant touched her bottom and then moved towards her vagina and rubbed her. She did not say anything other than telling him she was going to bed as she was tired. The appellant said “okay” and “goodnight”. After that evening he sent her a text message apologising and saying that it should not have happened. C said she replied it was okay. However, C said she was terrified and did not know what to do. After that night, the same thing happened approximately 10 or 15 times (that formed the basis of count 1).[7]In 2019, they moved to a new house. C said that after a few months the touching started again but less regularly. Once she said it occurred in bed whilst watching a film together (that formed the basis of count 3 of which the appellant was acquitted) and the other few times it occurred on the sofa (that formed the basis of count 2 of which he was convicted). On another occasion the appellant entered her room, asked her to leave her class when she was in the middle of an online lessen and then took off his dressing gown. She said the appellant said, “We all have insecurities” and asked her to take her clothes off. C declined and asked him to put his clothes on (that formed the basis of count 4). At the time, C was involved with CAHMS (Child and Adolescent Mental Health Services) for self-harm, eating disorders and body image problems.[8]In March 2021 there was a family gathering at C’s grandfather’s house. C drank too much alcohol and got up in the night to be sick. C said she tried to wake her mum but could not and the appellant helped her to go to the bathroom to be sick instead. The appellant then told C to sleep in bed with him and C’s mother. C initially said “no” but then agreed. She was lying facing her mother with the appellant behind her. After a few minutes the appellant began to touch her bottom and then rubbed her vagina. It finished when she told him she was tired and wanted to go to sleep and got up. The appellant tried to persuade her to stay in the bed however C left the room. The next day the appellant said they needed to speak because they had had sex. C was confused as she did not remember it. The appellant said it was a joke and then claimed it was not a joke. C asked him if he knew what it would do to her mum and the appellant said that they should not speak of it again. C said she went to check herself in the toilet but could not see that they had had sex. The prosecution case was that this was perhaps the appellant testing the water to see C’s reaction.[9]After the appellant’s relationship with C’s mother ended he resided with his father. C continued to visit him. C said she was very sad when the relationship ended but did not know why she still cared for him after everything that had happened. C said nothing sexual had happened between them for months; however on one occasion she stayed overnight at the appellant’s family home and they were sat in bed together watching television. C said she asked the appellant to leave so she could go to bed. However, the appellant said that that was fine and that he would not touch her. Within a few minutes the appellant began to touch her vagina which led to an argument between them (that formed the basis of count 6). The next day the appellant behaved as if nothing had happened and that was the last time she saw him.[10]In addition to C’s evidence the prosecution relied upon complaint evidence from some of C’s friends, including that C and the appellant seemed very close; and that C had mentioned the incidents in counts 4 and 5 and that the appellant kept touching her vagina and her bottom.[11]The prosecution case was that the appellant sexually abused C, who was effectively his stepdaughter, when she was between the ages of 13 and 15, having groomed her by befriending her, getting drunk with her, supplying her with drugs at her request (on one occasion) and forming an inappropriate emotional bond over mental health and other issues. To prove the case the prosecution relied upon C’s evidence and upon evidence from friends and relatives of C, including complaint evidence and behaviour that the witnesses had seen.[12]The defence case was a straightforward and outright denial. He had never touched C in a sexual way. He gave evidence that he did not lie down with C on the sofa and touch her, did not provide her with drugs, did not expose himself to her and did not make any sexual comments. Whilst they would cuddle on the sofa, it was not in an intimate way and they were never in bed together at any house. The Defence Statement[13]The first paragraph of the Defence Statement said:
“... the Crown is put to strict proof on each of the elements that constitute the offence with which the defendant is charged.” constitute the offence with which the defendant is charged.”
[14]Under the heading “Nature of Defence”, paragraph 2 said “Factual Denial”. Under the heading “Issues in the Case and Matters Relied Upon” it said:
“General a. The defendant denies engaging in any sexual activity with [C], as alleged, or at all. b. There has never been any occasions when the defendant has touched [C] on the bottom and/or the top of her vagina as alleged or at all. This did not happen. c. There has never been an occasion when he asked [C] to remove her clothes, as alleged, or at all. This did not happen. d. The defendant asserts that these allegations are untrue.”
Then under the subheading “Background”, the Defence Statement set out a detailed factual denial of C’s account of what was alleged to have happened. Once again, this amounted to a detailed refutation of what C said had happened. Then under the heading “Specific allegations” the Defence Statement addressed the counts on the indictment dealing with each in turn. In relation to counts 1 and 2, it said:
“... b. The defendant denies ever touching [C] as she describes whilst sitting on the sofa with her. This simply did not happen as alleged, or at all.”
In relation to count 3, the count on which he was acquitted, it said:
“This incident simply did not happen.”
In relation to count 4:
“This incident simply did not happen as alleged, or at all.”
In similar vein, in relation to count 5 it said:
“No sexual touching took place as alleged, or at all.”
In relation to count 6 the same statement was made. Then under the heading “Motive” the Defence Statement said:
“[The appellant] can only speculate as to why [C] is making these allegations up about him.”
Nowhere in the Defence Statement is there any suggestion of an alternative case, ie that if the incidents alleged by C took place, they were with her consent or that he reasonably believed that she consented. The Course of the Hearing[15]During the course of the hearing C and other witnesses were cross-examined about the facts. It was not suggested to C or any other witness that if the incidents took place that she consented to them or that the appellant reasonably believed that she was consenting. There was no half-time submission of no case to answer,nor could there have been because the combined effect of C’s unchallenged evidence about how she would get away from the appellant (eg by telling him she wanted to go to bed because she was tired, refusing to take her clothes off when he dropped his dressing gown, getting up and leaving the room) was evidently sufficient to support an inference by a properly directed jury that she had not consented in relation to his conduct as alleged in counts 1, 2, 5 and 6.[16]Consistently with the previous conduct of the case, when the appellant gave his evidence it amounted to a straightforward denial that any of the alleged sexual activity had taken place. There was no suggestion that, if he was wrong about that, then the sexual activity with her was with her consent or that he reasonably believed she was consenting. That may not be particularly surprising in a case where the defence was a straightforward denial that any of the alleged activity took place but the consequence was that no case on consent was put to C (as it surely should have been if consent was in issue) and no evidence was forthcoming from the appellant about it. Summing-up and Route to Verdict[17]After the close of the evidence, the judge provided counsel a first draft set of written legal directions. The issue of consent was addressed in the direction as follows at paragraphs 39 to 46:
“ROUTE TO VERDICT 39. Sexual assault – Counts 1, 2, 3, 5 and 6 For these counts, the prosecution has to prove that: i The Defendant intentionally (as opposed to accidentally) touched [C]; ii The touching was sexual; iii [C] did not consent; iv The Defendant did not reasonably believe that [C] was consenting. 40. Counts 3, 5 and 6 relate to specific incidents – one in the bed that the Defendant and [C’s] mother shared (count 3); one in Anglesey at her grandfather’s house (count 5); and one at his father’s house (count 6). 41. Counts 1 and 2 relate to multiple allegations over a period of time – 10 or more times before 30th June 2019 (count 1); 3 or more times after 1st July 2019 (count 2). In broad terms, this split reflects the two houses that they lived in. 42. The Defendant’s case is that he never touched her in any sexual way. 43. For these counts, there is no dispute that, if touching occurred as described by [C], then it would constitute the offence of sexual assault. 44.The first issue for each of these five charges (and for counts 3, 5 and 6, the only issue) is whether you are sure that touching happened as alleged by [C]. 45. For counts 1 and 2 only, there is a second issue, which is whether you are sure that touching happened on at least the number of occasions that the prosecution alleges. 46. If you are sure for a particular count that it happened, there would be no argument about whether it amounted to sexual touching or about consent. It is not the Defendant’s case, for example, that he did sexually touch her but that she was consenting. His case is that none of this happened at all.”

For these counts, the prosecution has to prove that:

[18]We are told by Ms White, who represented the appellant at trial as she has done before us, that counsel were given the opportunity to discuss and make submissions on the first draft directions. We do not have a transcript of that exchange but Ms White says, and we accept, she submitted that even though the appellant’s defence was that no sexual touching ever happened, the jury still had to consider each and every element of the statute as charged. The judge then retired to consider that submission.[19]When the judge produced his final version of the written directions, he retained the passage we have set out above so that he deleted his original paragraph 46 and the numbering had changed. Specifically he retained what had been in paragraph 43 as set out above. The retained passage now went to numbered paragraph 48 (which had previously been paragraph 45). He then added two further paragraphs as follows:
“49. For these five counts, I do not intend to give you directions on the meaning of consent or reasonable belief in consent because the defendant’s case is not that [C] consented and/or that he reasonably thought that she did. His case is that no sexual touching took place between him and her on any occasion. 50. However, if you reach in your deliberations on a particular count where you are all sure that the defendant touched her sexually but some or all of you feel that you need assistance on the issues of whether [C] consented and/or whether the defendant had a reasonable belief that she was consenting, please send me a note and I will give you further directions.”
[20]We do not have the transcript of the first part of the judge’s summing-up but are assured that it was consistent with the written directions we have just summarised. We have a transcript of part 2 of his summing-up, which is full and fair and of which no complaint is or could be made, save that he did not say anything more to draw the jury’s attention to the question of consent. The jury did not take up the judge’s invitation to send him a note, from which it may be inferred that none of the jury felt they needed assistance on the issue of whether C consented. As we have said, he was convicted on counts 2, 4, 5 and 6 but not count 3. The Appeal[21]It is in these circumstances that Ms White submits that the appellant’s trial was unfair because of the failure to sum up the element of consent and that as a result his conviction on all counts should be quashed. She relies upon the statement of 20-4 of the compendium that:
“When the charges involved are those under sections 1 to 4 of Sexual Offences Act 2003, the Crown must prove that W was not consenting to the act alleged.”
She submits that the Crown had a choice, and could have chosen to charge the appellant with the offence of sexual activity with a child, in which case consent would not have been an element that the Crown had to prove. Having chosen to charge him with sexual assault, consent was an element of that offence and therefore, in her submission, had to be summed up.[22]The prosecution has served a Respondent’s Notice and attended by Mr Wilson, who prosecuted in the court below. He submits that the summing-up concentrated on the issues that were contentious, and that consent was not one of them. He goes further and submits that there was no material on the basis of which the jury might have concluded that C had consented or that the appellant had reasonably believed that she was consenting. He relies upon extensive evidence of grooming behaviour and submits that, if the jury were sure the alleged behaviour occurred as she said, there could be no sensible basis for a conclusion either that she had consented or that he had reasonably believed she was consenting. This was, after all, serious sexual activity inflicted in gross breach of trust on a person who was effectively his stepdaughter in her early teenage years.

Discussion and Resolution

[23]We accept that there may be cases where a court is obliged to sum up an issue that the parties themselves have not raised - provocation in a murder case is an example. We also accept that some judges would sum up the issue of consent, even if only briefly, even in a case such as this where the issue has not been raised in the course of the trial in any shape or form. However, we are far from persuaded that the judge in the present case was required to sum up the issue of consent for the simple reason that it was not in issue. Apart from the bald statement that the Crown was put to strict proof of each of the elements of the offence with which the appellant was charged, the Defence Statement said nothing about consent or any alternative case being an issue. Thereafter, it may have been acceptable not to put an alternative case to C if the intention was to submit at half time that there was no evidence upon which a jury could properly be satisfied that C had not consented or that the appellant had not reasonably believed that she had consented. That was never an option here because C’s uncontradicted evidence clearly supported the conclusion that she did not consent and that the appellant did not reasonably believe that she did. Wisely, Ms White did not make such a submission either at half-time or later. Had she done so, she would have been bound to fail.[24]Given that there was clear evidence upon which (to put it at its lowest for the moment) a properly directed jury could reasonably have concluded adversely to the appellant on the issue of consent, if the appellant wished to run the alternative case, he was obliged to put that case to C. Simple fairness to C could not be satisfied with anything less. It would then be a decision for the appellant whether he wished to challenge C’s evidence by evidence of his own, which would in the circumstances have been a difficult tactical decision for him to take but would have been the consequence of his decision to run a secondary line of defence as a fallback if his primary defence failed. As it was, by the end of the trial, C’s evidence was unchallenged in any respect material to the issue of consent. In our judgment, her unchallenged evidence could only lead to one conclusion on the issue of consent. We have no doubt that is why, in circumstances where nothing had been done by the appellant or on his behalf to indicate that consent was even contingently in issue, the judge was of the view, correctly in our judgment, that consent simply was not in issue. His summary that if the jury were satisfied that touching occurred as described by C then it would constitute the offence of sexual assault was correct and sufficient. In support of that conclusion, we are sure that Ms White is right to concede that, having not challenged C’s evidence or raised the issue of consent in anyway by the close of the evidence, it would have been wrong for her to have raised it in her closing speech. That is because it simply was not an issue in the case.[25]We do not accept that the passage from the compendium on which Ms White relies provides any support for the appellant’s position. The Crown must of course satisfy the jury by proving any element of an offence that is in issue. But that does not mean that the Crown must go through the rigmarole of proving matters that are not.[26]In those circumstances, we consider that the judge’s addition of paragraphs 49 to 50 to the written directions cannot be said to have rendered the conviction unsafe. Nor do the directions as a whole render the conviction unsafe. While we accept that it was unconventional for the judge to leave open the possibility of the jury coming back, if there was any aspect of the issue of consent on which they felt they needed assistance, that is to be seen in the context we have outlined, namely that there was in fact no material that could have justified a properly directed jury in concluding that C consented. The fact that the jury did not request further directions is, in this context, not a reason to consider the conviction unsafe. We therefore dismiss this appeal.