Case No: 200100190 X5
Neutral Citation Number: [2001] EWCA Crim 1381 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN
COURT (HHJ ISSARD-DAVIS)

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 14th June 2001

B e f o r e :

LORD JUSTICE MANCE
SIR RICHARD TUCKER
and
HIS HONOUR JUDGE GORDON

	R.	Respondent	
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	UGOH & OTHERS	Appellants	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Andrew Campbell (instructed by the CPS for the Respondent)
Pamela Brain (instructed by Messrs Ashley Smith & Co. for the Appellants)
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mance: 

1.	On 20th December 2000 the three appellants were, following a 13 day  trial, convicted by a majority of 10 to 2 of conspiracy to rape, and on 6th February 2000 they were sentenced to 18 months imprisonment in the cases of Miah and Udenze and 9 months imprisonment in the case of Ugoh. The complainant was a 23 year old woman who had spent an evening in London with a friend during the course of which both had drunk considerable quantities of different alcoholic drinks. The complainant had put the friend in a taxi to go home shortly after midnight, but had herself decided to remain in London overnight before catching an early morning train home. Her memory failed her as to subsequent events, and her next recollection was of being approached by police at about 3.00 a.m. at which time she was in the back of a car, with five men including the appellants in and near the car. Her appearance was dishevelled, her skirt around her waste, her tights pulled down and in one case off her leg and she had only one shoe on. When asked whether she was alright, she said: “I think so. I don’t know. Are these men dodgy?”
2.	The Crown case was that the five men had come across the complainant in the area of New Oxford Street, and agreed to spend time with her before she caught her train, that they had formed an agreement between themselves to have sex with her, that they had stopped to buy two packets each containing two condoms at a garage, and that they had then parked the car for their intended purpose in a quiet side street. Miah and Udenze then in turn attempted to have sexual intercourse or activity with her. Semen matching Udenze’s DNA profile was found on an external vaginal swab taken from the complainant, on her clothing and in the car. Semen matching Miah’s DNA profile was found in a used condom found underneath the car. A penile swab taken from Miah showed both his and the complainant’s DNA. Internal vaginal swabs taken from the complainant showed semen, from which no DNA profile could be obtained. Three unused condoms matching those purchased were found, respectively, on the back seat of the car, in Ugoh’s pocket when he was arrested and (later) at Udenze’s flat.
3.	Central issues in the case were therefore whether there was any agreement to have sexual intercourse with the complainant, whether the complainant had consented to intercourse, and, if there was such an agreement and she had not consented, whether the appellants knew (and knew that each other knew) that she did not consent.
4.	The complainant’s evidence was that she did not consent to sexual intercourse, and did not think that drink would have led her to consent, although, as the judge pointed out in summing up, she had no actual recollection as to what had happened during the relevant period. The Crown relied as against Ugoh on certain potential admissions made by him in interview regarding the complainant’s behaviour and his understanding of her state of mind. The other two appellants made no comments in interview on their solicitors’ advice, and the judge directed the jury not to draw any adverse inference from their failure to answer questions.
5.	The Crown called expert witnesses, Ian Humphreys, on blood alcohol levels, and Prof. Hindmarch, a psycho-pharmacologist, on the effect of drugs, such as alcohol, on the brain and on behaviour. Mr Humphreys’ evidence indicated that the complainant’s blood alcohol level would have exceeded 200mg per 100mll at 3.0 a.m.
6.	Before Prof. Hindmarch gave evidence, the defence objected to the scope of his proposed evidence in two respects: they submitted, first, that he should not be allowed to speak to the complainant’s actual ability to give informed consent; and, second, that he should not be allowed to give evidence that any such inability to consent would have been evident. The judge rejected these objections.
7.	The Professor then gave evidence that the complainant’s ability to appreciate what was going on around her would have been severely impaired, that she was near the point where consciousness itself was disrupted and that she would not necessarily be aware of her environment, that her thought-processes would have been disturbed and her decisions confused, that there would be a tremendous amount of confusion that would be evident to anyone who saw her and that her gait would be affected. However, he acknowledged that an experienced drinker – and the complainant had at the time a severe drink problem – could be “quite capable of hiding a lot of the effects of alcohol and not betraying it in body movements”.
8.	He was asked about the complainant’s ability to make an informed decision as to whether or not to consent to sexual activity, and he said:
	“ A. I firmly believe that this would be impossible with someone with this level of intoxication. They might, of course, be able to say a word or even sort of behave and look as though they are accepting or compliant, but I find it very difficult to accept that anyone could do it with any understanding in the normal way of saying if someone consents with a full understanding of what they are consenting to.”
9.	The judge then asked:
	“Q. They might appear to consent, is that right? 
	A.   Yes, they might, shall we say, be able to …. I do not mean that they could not say, “yes”
Q.   Yes.
A.  …. but I am saying that the alcohol would be sufficiently [inaudible] for them not to be able to give a consent based on an understanding of what they were consenting to.
Q.   Yes.
A.   Their behaviour might very well seemed relaxed, given the alcohol, but I think that the apparent confusion, which is evident at these dose levels, would be evident to anyone witnessing this as well, so I do not think it is just her inability, but it would be obvious to others that she was not in, what people say, a fit state to make this sort of decision.”
10.	The last question put to the Professor in chief asked him for his views on the complainant’s ability to give informed consent “for anybody who was with her”. He replied:
	“It must have appeared that she was very intoxicated. Nobody could hide that level of intoxication, maybe in movement, yes, so it might that there was not too much staggering but when you speak with someone who is intoxicated at this level you can tell; their speech would be slurred, they would be obviously drunk. There is no way to hide it. We are talking about very high levels of alcohol.”
11.	When he later came to sum up, the judge summarised this passage as follows:
	“… he concluded his examination-in-chief by saying that to anyone with her she must have appeared very intoxicated. No-one could hide that level of intoxication.”
12.	The Professor was asked in cross-examination about what it was that would alert anyone witnessing the complainant to the fact that she was not in a fit state to make decisions about sexual activity. He identified her overall behaviour, confused speech, pauses, difficulty in verbalising, in having a fluent conversation and in remaining awake. Aspects of the complainant’s conduct, proved to have occurred in or at the end of the period when she could remember nothing, were put to her, as indicating that she might have appeared to be in control of her faculties, e.g. her withdrawal of £20 from a cash machine, before she met the five men and her response and appearance to the police when they found her. Asked in their light whether it was possible that the complainant was, when awake during the relevant period, able to communicate and appear rational, Prof. Hindmarch said:
		A.  .….. I think it is highly improbable that she could have maintained a level of alcohol in her blood and not being seen to be unable to be responsible for her actions.
….  
A. … what I am saying is that in my experience and opinion ….. it would be more than probable that her alcoholic concentrations would manifest and this person would be seen to be someone who was not in control of her behaviour or her judgment, not just someone who was merry but someone who was compromised by the alcohol that she consumed.”
13.	The Professor went on to deny a suggestion that this was speculation in view of the difference between different people in tolerance to alcohol. He maintained that the effects of alcohol have “a certain consistency”.
14.	At the close of the Crown case, submissions of no case to answer were made. It was submitted in particular that there was no evidence of any agreement between the appellants that sexual activity would take place with the complainant and no evidence either that each knew that the complainant was not consenting to such sexual activity or that each knew that any of the others knew this. The judge rejected all these submissions, relying in relation to the latter points on the evidence of Prof. Hindmarch.
15.	All three appellants gave evidence. Udenze admitted an intention and attempt to have sexual intercourse with the complainant, who he described as responsive. Miah admitted the same intention, if she was willing, but said that, as she was not, he had stopped and got out of the car. Ugoh said that he heard talk about having sex with the complainant, but he did not himself think that sex in a car was a good idea or join in any agreement. As the police arrived, Udenze had given him the condom which the police found in his pocket.
16.	The judge in summing up reminded the jury of all aspects of Prof. Hindmarch’s evidence. He did not give the jury any specific direction or assistance (along the lines of specimen direction 33 of the Judicial Studies Board) on the relevance of, or on their approach to the expert evidence which the jury had heard.
17.	The appellants on this appeal renew submissions about the scope of Prof. Hindmarch’s evidence and submit that, if the judge had correctly restricted his evidence, there would have no case to answer. Other complaints initially sought to be raised have not been pursued. Further, before this court, the appellants’ submissions regarding the scope of admissible evidence which could be given by the Professor are more limited than below. The appellants now accept that the Professor could properly be asked to address the effects of the alcohol consumed on the complainant’s behaviour and on her actual ability to give informed consent, and, not having heard any contrary argument, we proceed on that basis. But they submit that the Professor could not or should have been allowed to give admissible evidence as to whether her inability to consent would have been evident to “anyone” else.
18.	Evidence as to behaviour includes, by definition, evidence about matters which would appear to another person present at the time. Mr Campbell for the Crown submitted before us that the Professor’s evidence did not in substance go beyond this. We think that the appellants are correct in submitting that the present evidence went somewhat further, in as much as the Professor stated views as to what conclusions any other person would draw from such behaviour with regard to the complainant’s ability to give informed consent.
19.	We do not consider that the Professor’s evidence was objectionable on the ground that was principally submitted before the judge, namely that it went to an “ultimate issue” in the case. An expert is now permitted to give evidence on an ultimate issue: R. v. Stockwell (1993) 97 CAR 260, 265-6; R. v. Gokal (CA; 11th March 1999).
20.	We do however have reservations about the Professor’s evidence as to whether her ability or inability to give informed consent would have been evident to “others” or “anybody who was with her”. It is true that the Professor did not specifically relate this conclusion to the appellants, but his questioning and the answers he gave, even in chief though still more in cross-examination, must have made clear that his conclusion was intended to embrace their states of mind. Certainly there was a considerable risk that the jury would take it in that way. We doubt whether this was a fit subject for expert evidence, and Mr Campbell did not suggest the contrary before us. The appellants were normal young men, not themselves under the influence of drink or drugs, whose ability or inability to appreciate the complainant’s inability to consent was a matter for the jury to assess. Their age, inexperience, tiredness or desires at 3.00 a.m. on a Saturday night or early Sunday morning were all matters for the jury to assess. Lawton LJ said in R. v. Turner (1975) 60 CAR 80, 83 (in a passage quoted in R. v. Stockwell at p.263):
	“An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”
21.	We do not consider that the jury needed the “help” of an expert’s opinion here, and in our view the judge would have been well advised to restrict the scope of the Professor’s evidence, so as to exclude any statements about what “others” or “anybody who was with her” would have thought on the subject of her informed consent, and should thus have avoided the questioning and evidence that followed from those statements. The Professor could still quite appropriately have been asked, as is now accepted, about the complainant’s behaviour. The jury could then have been asked whether, applying their good sense, they were satisfied not only that the complainant was incapable of giving informed consent, but whether, in the light of her behaviour, the appellants must have realised this.
22.	The extent to which, on this basis, the Professor’s evidence crossed the line between the appropriate and inappropriate is limited, when viewed in the context of his evidence as a whole. Turning to the state of the evidence at the close of the Crown’s case, we do not accept the appellants’ submission that, had the judge restricted the Professor’s evidence, the Crown would necessarily have failed to satisfy the onus on it of showing a case on which a reasonable jury properly directed could convict. The judge, it is true, relied heavily at the half-way stage on the Professor’s evidence as to what the appellants would have thought about the complainant’s ability to consent. But the circumstances generally, combined with the Professor’s evidence regarding the complainant’s actual state of mind and likely behaviour under the influence of what she had drunk, would in our judgment still have given rise to a sufficient case.
23.	The matter does not however end there. We think it necessary to look at the way in which the judge summed up, although the appellants did not in their submissions focus upon this. Mr Campbell in his skeleton did in contrast anticipate the problem which we see. That is the absence of any direction or assistance from the judge to the jury about how they should approach the Professor’s evidence. The judge recited the evidence fully and accurately but simply left it to the jury. In R. v. Stockwell at p. 266 the Lord Chief Justice emphasised the importance of the judge making clear to the jury that it is not bound by an expert’s opinion and that the issue is one for them to decide. That was in the context of expert evidence given legitimately on an ultimate issue. The judgment in R. v. Gokal also attached importance to the impeccable direction regarding the significance of and proper approach to expert evidence which had there been given by the judge. In R. v. Fitzpatrick [1999] Crim LR 832, this court indicated that there was no inflexible requirement that the proper approach to expert evidence should be made clear in any particular way. But, we find it difficult to overlook the importance of such a direction having regard to the nature of the statements which the expert was (in our view inappropriately) permitted to venture about the appellants’ state of mind, which was certainly one of the ultimate issues in the case. Had the judge given a proper direction about the significance of expert vidence, reminding the jury that the issue whether each of these appellants knew that the complainant was incapable of consenting (and realised that each other knew this) was for them to decide as a matter of commonsense, bearing in mind all the circumstances, it may be that the mere admission of the evidence given by the Professor which went wider than was appropriate would by itself not have made the conviction unsafe. As it is, however, we feel that the combination of the admission of the evidence, its extensive summarising in the summing up and the absence of any direction along the lines of JSB specimen direction 33 in this case mean that this conviction must be regarded as unsafe as against all three appellants.
24.	In reaching this conclusion as regards Ugoh, we have borne in mind that the evidence against him included the contents of an interview, in which he made a number of potential admissions about his understanding of the complainant’s state of mind and lack of awareness of what was going on. His position both at the half way stage and at the conclusion of the trial was on any view weaker than that of his two co-accused. We have considered whether the verdict can be allowed to stand against him, even though it cannot as against the other two appellants. We have come to the conclusion that it cannot. First, the statements, though weakening his position, do not mean that he was bound to be convicted. Second, the problem about Prof. Hindmarch’s evidence and the judge’s summing up remains. Third, the judge, when directing the jury, specifically identified the difficulty of convicting one defendant but finding the rest not guilty. In these circumstances, we consider that the verdict must be regarded as unsafe as regards Ugoh also.
25.	These three appeals all therefore succeed, and the convictions will be quashed, We will hear counsel as to whether there should be a retrial. 

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LORD JUSTICE MANCE:  For the reasons given in the written judgment which should have been handed down these three appeals all succeed and the convictions will be quashed.  We will hear counsel as to whether there should be a retrial.
MR CAMPBELL:  My Lord, I have taken instructions on this matter of course and we have considered what course the Crown ought now to take.  For a variety of reasons we have decided that we will not be asking this court to order a retrial.
LORD JUSTICE MANCE:  From our point of view we understand the reasons for that decision.  Thank you very much.  I thank both counsel for their assistance.