BUV v Rex [2025] EWCA Crim 327

[2025] EWCA Crim 327Case No 202302437 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
His Honour Judge Alex Gordon
Ind. No. T20207608
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/03/2025
Before
LORD JUSTICE DINGEMANSMRS JUSTICE STACEYMR JUSTICE DEXTER DIAS
Between
BUVAppellantRexRespondent
Adrian Eissa KC appears for AppellantDavid Harounoff appears for ProsecutionHearing Hearing date : 7 March 2025
Approved JudgmentThis judgment was handed down remotely at 14.00 hrs on 25.3.25 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................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.

Introduction

[1]This is an appeal against conviction. The appellant is a 35 year old man, who was aged 29 years at the time of the offences. On 23 May 2022 in the Crown Court at Snaresbrook before HHJ Alex Gordon and a jury, the appellant was convicted of two counts of rape and one count of sexual assault contrary to the Sexual Offences Act 2003. On 28 October 2022 (when he was then aged 33 years) he was sentenced to 12 years concurrent on each count of rape, and no separate penalty was imposed for the sexual assault.[2]The victim of this offending, who was aged 14 at the time of the offences, has the benefit of lifelong anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. In the light of the family ties involved in this case it is necessary, in order to preserve the anonymity of the complainant, to anonymise the name of the appellant, who is referred to as BUV. The complainant was the appellant’s wife’s cousin.[3]The grounds of appeal are:(1) evidence of a change in the complainant’s demeanour after the offences took place was wrongly adduced; and(2) in any event there were no proper directions about the approach to that evidence. The cases at trial[4]The prosecution case was that at around 12 noon to 1 pm on 30 July 2018, the appellant collected the complainant, her sister and her cousin from a relative’s address and they were driven to his home under the pretence of helping him clean his property while his wife had an operation. At his address, he gave them alcohol, specifically tequila. The evidence suggested that the complainant became more drunk than the others, and the appellant told them he would take her for a drive around on her own to “sober her up” but he actually gave her more alcohol. When in the rear of the vehicle, he put his penis in her mouth (Count 1) and touched her vagina under clothing (Count 2).[5]He drove her back to his address, and suggested to the other two that they should buy some food, he raped her in his bedroom (Count 3). He dropped the three of them off at around 9 to 10pm.[6]The complainant exchanged Snapchat messages with a friend after the incident in the car, but before the rape in the appellant’s bedroom. The messages were written in “broken English” but the messages were to the effect that her body hurt, that she believed the appellant did not think that she remembered what had happened and that she was scared he would do it again. When asked by her friend on the snapchat whether the appellant had “shagged” her, the complainant agreed.[7]On 31 July, the day after the alleged offences, the complainant disclosed the offending to her sister and to her cousin. They took her to the police station.[8]The complainant was examined by Dr Ajayi on 1 August. Dr Ajayi concluded that the apparent injuries to the complainant’s vagina were consistent with allegations of sexual assault and penetration by a finger, erect penis or object, although she could not rule out the injuries being caused by another method other than sexual intercourse, and in particular a straddle injury where a person falls on to a hard object or surface with legs astride.[9]On 2 August 2018, the appellant attended a voluntary police interview and answered questions. He denied any offending, saying the complainant and the others had drunk his alcohol without permission when he was out of the house, and he had threatened to report them to their family. The appellant accepted that he had driven the complainant in the car to get a milkshake, but there was no sexual assault. The appellant said that the allegation was a fabrication due to a family history of disapproval of him and his marriage, and the need to cover up the drinking. The appellant voluntarily provided intimate swabs.[10]The appellant’s account at interview was repeated in the defence case statement. In a handwritten addendum case statement it was also alleged that the complainant’s family had discussed the case and the need to ensure that their statements matched, and had discussed blackmailing the appellant’s mother for money for the case to be dropped.[11]Evidence on behalf of the prosecution was given by the complainant, her sister, and her cousin. It was put to the complainant, her sister and her cousin, that they were lying. Evidence was also given by the complainant’s mother and father, the friend to whom she had sent messages on snapchat, her sister and another cousin, and Dr Ajayi. The ruling on the father’s evidence[12]Before the complainant’s father gave evidence about how the complainant appeared after the alleged offences, there was an objection to part of the evidence and the judge heard argument.[13]Counsel for the prosecution submitted that the complainant’s father was entitled to describe how his daughter appeared to him soon after she made the allegations. It was confirmatory evidence of what she experienced, her change in temperament, school attendance and other matters.[14]Counsel for the appellant did not object to the father commenting on collecting the complainant from the police station and her demeanour at that time, however it was submitted that his comments beyond that were emotional and resembled a victim personal statement. At that stage, it had not been established as to why she was upset, which could have been for all sorts of reasons, such as her fearing that the appellant would tell her family about her drinking alcohol. It could be explored in questioning to the complainant and her father but it was an unfair advantage to the prosecution.[15]The Judge stated that this matter could be explored with the complainant and her father. It was not emotional and might have assisted the jury in deciding whether she was telling the truth or not. The defence were permitted to cross-examine on the matter extensively without interference from the Judge. The trial continued[16]The father gave evidence. He said that he travelled to the police station when the report had first been made (having been made aware that the complainant had reported that she had been raped by the appellant) and the complainant was crying a lot, she hugged him, and he tried to calm her down. There was no issue in relation to this evidence. The father continued and said:
“Q. Okay. Now, as time went on, how did she appear to you? A. She, she was really, erm, bright girl before the incident. She was really good in school. We had no problem in school with her. When at home, she was always happy and bright so after the incident, we took her home and she – I mean, that was the school holiday, end of school holiday and when the school reopened, she didn’t want to go to school. She always crying in her room. We tried to make her understand to know she wouldn’t – her anger would really – she kept saying, ‘You don’t know how I feel of that,’ and she would cry, start crying and she wouldn’t talk to anyone. Q. Were there other occasions beforehand where she refused to go to school? A. No. Q. Can you tell us how she reacted with friends? A. She had lots of friends before the incident but after the incident, she wouldn’t, you know, mix up with her friends or anyone else. She, I mean, first she wouldn’t go to school and we had the counselling from school and the teacher. They were really brilliant, you know, helping her, you know. I mean, she took two weeks off. They said, you know, ‘Go home, relax and calm down and stay home. When you feel like, then you come and we give you counselling from the school.’ Q. Had she had counselling before this incident? A. No. Never”
Q. Can you tell us how she reacted with friends?

Q. Had she had counselling before this incident?

[17]After finishing his evidence and being told that he was free to leave, the father said he would stay, and then said his daughter changed completely, she never used to be that angry, and she would start crying. The trial continued[18]It appears that about a week later, prosecuting counsel informed the judge that the defence wished to play footage of what was described as the family wedding or a party associated with the wedding. This wedding or party had taken place after the alleged offences. This was relied on to show that the complainant was apparently happy and not affected by any offences alleged to have taken place on 30 July 2018. It seems likely, given the way in which objection had been made to the father’s evidence, that the decision on behalf of the appellant to adduce the footage was made after the judge’s ruling.[19]The defence case was a denial that any sexual activity of any nature took place. The allegations were malicious lies. The appellant gave evidence that when he dropped off his daughter on 30 July 2018, the complainant, her sister and cousin asked that he take them to his flat, which he did. While he was outside dealing with matters related to his family cars, the complainant and her sisters had consumed alcohol at his address without his knowledge or encouragement. Upon him discovering what they had done, he threatened to inform their families. That was likely to be the basis for the false allegations against him.[20]The appellant asked them to leave but they stayed. The appellant said that the complainant wandered outside and ended up falling on to the floor. He helped her. She wanted some fresh air and asked him for a milkshake which he agreed to as they walked to his car. He asked the others if they wanted anything but they declined. During the drive, the complainant tried pulling the steering wheel and kicked the dashboard. He stopped and purchased the milkshake as requested. He denied being in the back of the vehicle with the complainant or engaging in any sexual touching. Once they returned to his property, the complainant refused to leave the vehicle and at one stage she attempted to remove her top which made him feel embarrassed. Upon re-entering the property, she went into the bedroom on her own volition, and moved between the bedroom and living room on a number of occasions.[21]The appellant asked them all to leave multiple times. The appellant, complainant’s sister and cousin left to collect the appellant’s wife and dropped her off with relatives, before they returned to the flat. Whilst the two relatives went to get food, he never entered the bedroom at all or sexually assaulted the complainant. During that time, he was on the phone to his wife in the bathroom and on the balcony. When the complainant entered the living room, she ate, swore at her sister and kicked the appellant. He paid them each £20 for tidying up and dropped them off.[22]The appellant said that when he saw them all the following day, they all behaved normally. His wife’s family did not initially approve of their marriage, they had told many lies and repeatedly attempted to break up his marriage.[23]The appellant’s wife gave evidence that her family were not fond of her husband. On 30th July 2018, she underwent an operation and had countless WhatsApp video calls with the appellant throughout the day. During a call, she suggested getting a takeaway for them all and was still speaking with him when the complainant’s sister and cousin returned with food. When she and her husband saw the complainant the following day to collect a car seat, the complainant greeted them normally, had a big smile and ran out to the car with the car seat. The appellant’s wife said that either at the wedding shortly afterwards, or at a party in connection with the wedding, the complainant was acting normally and dancing and was happy and bubbly and often the centre of attention. There was produced a video of four clips of the complainant dancing. The wife said that if anyone suggested that the complainant was not her usual self after the allegations had been made and that she was broken, they would be lying.[24]When she was informed of the allegations, the appellant’s wife stayed with her mother. She recalled a conversation when her family stated that they should ensure all the statements were consistent. She also overheard the complainant’s mother suggest blackmailing the appellant’s mother for the case to be dropped.[25]Another cousin of the appellant’s wife and the complainant gave evidence that after the complainant made the allegations, she was normally “very bubbly and outgoing, going out with her cousin’s friends”. She also heard family members discussing the case and attempting to influence the appellant’s wife. Summing up[26]The judge summed up to the jury. The judge reminded the jury that there was “no typical rape, no typical rapist or typical person that is raped … and people who are raped react in a wide variety of ways, so you must put aside any assumptions that you have about rape”. The judge directed the jury about the elements of the offences.[27]The judge reminded the jury that when the complainant gave evidence in her video recorded interview “she appeared I suspect you will agree, pretty calm and [un]emotional” (the “un” was missing on the transcript but counsel agreed that was what had been said). The judge continued “when she gave evidence in this court to you, albeit nearly four years later, she did, at times, struggle to maintain her composure”. The judge went on to tell the jury that:
“witnesses react to giving evidence about allegations of rape and sexual assault in a whole variety of different ways … the presence of absence of emotion or distress when giving evidence, is not a good indication of whether the person is telling the truth or not.”

The judge gave to the jury a written route to verdicts.

[28]The judge summarised the relevant evidence, which included referring to the father’s evidence about the complainant, the appellant’s wife’s evidence that the complainant had greeted them normally the next day and that the complainant had been dancing and acting normally, and the appellant’s wife’s cousin’s evidence about the complainant acting normally at the wedding, being happy and bubbly at the centre of attention. The respective cases on appeal[29]Mr Eissa KC submitted on behalf of the appellant that the father’s evidence of the change in the complainant’s demeanour or behaviour was inadmissible. This was because it was too uncertain a basis to provide evidence of anything.[30]Mr Eissa relied on R v Keast [1998] Crim LR 748 (Keast), and R v Miah [2014] EWCA Crim 938 CLW/14/26/1 (Miah). Reference was made to the Crown Court Compendium. Mr Eissa also submitted that a pre-requisite for the admission of complaint evidence was that an admissible complaint is made to the witness who is called to give the evidence, but the father’s evidence was admitted on the basis of hearsay. The father had been told about the complaint by another family member, and complaint evidence predicated on hearsay is not admissible.[31]Mr Harounoff on behalf of the prosecution submitted that the father’s evidence regarding his daughter’s demeanour or behaviour was admissible. The concrete basis was to rebut the allegation that her complaint, and the evidence of other prosecution witnesses, were fabricated lies. The factual circumstances were similar to the situation in Miah. This was because the complainant’s reaction to the alleged offending would have had to have been staged over a significant period of time if it were false. Mr Harounoff submitted that the Judge directed the jury to put aside any assumption as to the reaction of rape victims when dealing with the demeanour of the complainant on the ABE interview and at trial.[32]Mr Harounoff also submitted that the convictions were safe. There was compelling evidence from the sister and cousin about the events which was completely inconsistent with the appellant’s evidence, the complainant had sent contemporaneous snapchat messages about the appellant’s assault, and there was medical evidence about bruising and an abrasion to the complainant’s hymen, consistent with the vagina being penetrated by a finger, erect penis or object, but also consistent with falling and landing astride a hard surface, which no one had suggested had occurred. Some relevant principles of law[33]In Keast the offences were alleged to have been indecent assaults on a victim who was aged 9 to 11 years. There was inconsistent evidence about whether the victim had been cowed, but completely changed after reporting the sexual abuse and unburdening herself, or had been completely normal at all times. Objection was made to the calling of that evidence, and the objection formed the basis of the appeal. The appeal was dismissed. It was held that evidence of the distress of a complainant shortly after or at the time of an allegation of a sexual offence could be admitted to show consistency with the description of the incident. As to evidence about later distress the court said “it is more difficult to distinguish less sudden and less conspicuous signs when offences have been committed over a long period and when, after the first offence, a reluctant victim wrestling with conflicting emotions made no complaint”.[34]In Keast express reference was made to the practice in trials of sexual offences of both prosecution or defence relying on distress, or the absence of distress in support of their cases. The court said that “unless there is some concrete basis for regarding the demeanour and states of mind as confirming or disproving that sexual abuse had occurred, it cannot assist a jury in bringing their common sense to bear on who is telling the truth”.[35]The decision in Keast was only reported in the Criminal Law Review, and there was a commentary by Professor Birch. Professor Birch recorded that at a time when the law required corroboration, evidence of distress was frequently given, but it was often the subject of a direction that it could not be given great weight because it was part and parcel of the complaint itself. Professor Birch suggested that, given that there was no longer a need to look for corroboration for sexual offences, it would be unfortunate if the law on admitting evidence of distress became more restrictive.[36]Miah was a case which concerned offences of kidnapping and blackmail. A 14 year old boy had been taken by the defendants across Sheffield and to woods. The boy’s father was called and monies were demanded for the safe return of the boy. The boy later raised an alarm at a nearby farm at about midnight. The prosecution case was that the boy had been kidnapped, and the father blackmailed to pay money, which was not forthcoming. A plea of guilty by the defendants to the blackmail had been entered. The defence case was that the boy was involved in the plan to get money from the father, and there had never been any kidnapping. The attempts to get money from the father were admitted, which explained the guilty plea to the count of blackmail.[37]The boy’s mother gave evidence about the boy’s reaction to the offence, saying that before the offence the boy had a life, but afterwards he stayed in his room, he would sometimes go out to be driven in a car but refused to get out of the car. Reliance was placed on this change in the boy’s behaviour by the prosecution, and the defence suggested that it was a pretence to deceive his parents. The judge warned the jury to be careful before relying on it.[38]The appeal was dismissed. The court in Miah considered Keast and evidence about changes in demeanour. The court set out passages from a transcript of the judgment in Keast, and then concluded at paragraph 16 “In general such evidence, even though it may technically be relevant, is unlikely to be of any material assistance to a jury for the reasons set out in Keast. Furthermore, there are good reasons why, in the overwhelming majority of cases, such evidence should not be adduced … it would lead to a number of collateral witnesses being called to explain the reaction of the victim (or alleged victim) in a case. That would not only give rise to the lengthening of trials by the calling of such evidence, but it would give rise to the difficulties of investigating the veracity of the evidence or otherwise.”[39]The Court went on in Miah, however, to find that in that case there was a concrete basis for the admission of the evidence, namely that on the mother’s evidence the boy would have had to fake for a considerable period of time a reaction to what it was said he invented.[40]Professor Birch’s criticism of the direction of travel in Keast in the Criminal Law Review noted that the jury made a common sense assessment and that distress, or the absence of it, might be thought relevant. Professor Birch said “to deprive a jury altogether of information about how a witness whose credibility is so fundamental to the proceedings behaved at relevant times is to take away what has traditionally been regarded, along with the witness's demeanour in court, as an important indicator. Too sharp a demarcation between demeanour out of court and in it could produce startling results if a child's first full complaint is narrated on video and shown to the jury as her evidence in chief. Is the jury to be directed that her demeanour is irrelevant because it is part of her complaint?”. It should be noted that Professor Birch was writing at a time when there appeared to be an expectation that victims of sexual offending would be distressed.[41]As it is, the approach of the law to these matters has developed and changed, see generally R v M [2010] EWCA Crim 1578; [2011] Crim LR 79. In R v M the court stated that an image of stereotypical behaviour and demeanour by a victim or the perpetrator of rape can be capable of leading to injustice. As is now pointed out in the Crown Court Compendium, Part 1 (July 2024), Chapter 20, in recent years courts have increasingly been prepared to acknowledge the need for a direction that deals with what might be described as stereotypical assumptions about issues such as delay in reporting allegations of sexual crime and distress.[42]Other material developments in the law of evidence relating to recent complaints have been by way of legislation, see section 120 of the Criminal Justice Act 2003, and the summary in Rook and Ward on Sexual Offences, 6th edition, at paragraphs 19.76 to 19.79.[43]In these circumstances while evidence about an alleged victim’s later distress might be technically admissible, it is rarely going to be of sufficient relevance to justify calling it and raising the satellite issues of what other factors might have been responsible for such distress. This is particularly so in circumstances where the law recognises that there is no typical sexual offender or person that is the subject of sexual offending, and no standard reaction from the person subject to the offending. A safe conviction[44]We consider that in this case of the father’s evidence about the reported change in the complainant’s behaviour after the alleged offence was technically admissible, and that there was a permissible (or to use the expression in Miah, concrete) basis to admit it. This was because the defence was alleging that the complainant had made a false complaint against the appellant because her family disapproved of him, or was lying to cover up underage drinking, that the complainant’s family was co-ordinating their statements, and was planning to blackmail the appellant’s mother so that the complainant’s allegations might be dropped. In these circumstances the father’s evidence was, if accepted, real evidence of his observations and was capable of giving some support for the proposition that if the complainant was making up false allegations about the offences, then it was unlikely that she would have continued to refuse to mix with friends, or have had counselling, or not pursue her studies.[45]That said, we agree with the comment in Miah that this sort of evidence is very rarely likely to be of much assistance to a jury. This is because there may be many reasons for a child of 14 years to become disengaged for a period with friends and school. This is part of the reason why the jury are given guidance that there is no stereotypical rapist, victim or reaction, and the judge had reminded the jury of that in the summing up.[46]In circumstances where the judge had permitted evidence from the father to be given about the complainant’s appearance and behaviour after the alleged offences, it was only fair that the appellant should have the opportunity, through the evidence of his wife and the wife’s cousin, to give evidence to the effect that the complainant seemed happy and was acting normally after the alleged offences. Again, whether that evidence would have taken the jury any further forward in their assessment of the case might be very much doubted, particularly in the light of the proper directions by the judge about the absence of any typical response to sexual offending.[47]We consider that the judge’s directions in this case were sufficient. The judge told the jury that people who are raped react in a wide variety of ways, and that the jury must put aside any assumptions that they may have about rape. The judge had specifically had to address the complainant’s appearance because she had appeared calm and unemotional when giving her ABE interview, and had struggled to maintain her composure when giving evidence in court nearly four years later. As the judge said in the context of giving evidence, the presence or absence of emotion or distress is not a good indication of whether the person is telling the truth or not. In all of these circumstances we do not find that inadmissible evidence was adduced or that the directions were inadequate.[48]If we had found that the evidence from the father was inadmissible we would not have found this conviction to be unsafe. This is because the appellant’s case was that the complainant’s family had schemed to ensure that their statements matched and had planned to blackmail the appellant’s mother to obtain money in return for the dropping of the allegations. The father was part of that family, and in the circumstances of this particular case the father’s evidence would not have been independent evidence that took matters forward, and his evidence would have stood or fallen with the complainant’s allegations. That is simply another way of showing that this type of evidence is very unlikely to assist a jury. Further, this was a case where there was supporting contemporaneous evidence from the existence of the snapchat messages sent to the complainant’s friend between the assault by penetration in the car and the rape at the home. These messages were consistent with the complainant’s case that she was drunk and that she was the subject of serious sexual assaults which she immediately disclosed to a friend before she was raped in the appellant’s bedroom. This contemporaneous report is compelling evidence which is consistent with the complainant’s evidence. Finally there was the medical evidence of Dr Ajayi to the effect that the internal injuries were consistent with the complainant’s vagina being penetrated by finger, erect penis, or an object and there was no evidence of any other possible cause such as a straddle injury. Conclusion[49]For the detailed reasons given above we dismiss the appeal against conviction.