Case No: 2000/06293/W5
 
Neutral Citation Number: [2001] EWCA Crim 2699
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT BLACKFRIARS
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4th December 2001
B e f o r e :

LORD JUSTICE POTTER
MRS JUSTICE RAFFERTY
and 
HIS HONOUR JUDGE ZUCKER QC
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	REGINA
-v-
ROY COLIN DAVID PORTER
		
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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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John Hardy Esquire (instructed by the Crown Prosecution Service)
Mrs Marion Smullen (instructed by Brady, Eastwood, Pierce & Stewart, solicitors for  the appellant)

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Judgment
As Approved by the Court

Crown Copyright ©

Mrs Justice Rafferty:

1.	On the 3rd October 2000 in the Crown Court sitting at Blackfriars this Appellant was convicted of one count of rape per anum for which he was sentenced to a term of 12 years detention, 2 counts of rape per vaginam, for which he was sentenced to terms of 12 and 7 years detention, one count of indecent assault for which he was sentenced to 5 years detention, and one count of false imprisonment to which he was sentenced to 4 years detention.  All terms were concurrent thus totaling 12 years. 
2.	With leave of the Single Judge he appeals against both conviction and sentence. 
3.	His co-accused, Olive Maloney (aged 15 at offence and 16 at sentence)  was convicted of false imprisonment and made subject to a Supervision Order for 2 years.  He (and Porter) were acquitted of joint enterprise attempted buggery, and the jury was discharged after failing to agree as to Maloney upon joint enterprise rape and indecent assault. 
4.	The facts are unpleasant.  Deborah Simes aged 41 had more than once met Porter and Maloney in the area where she lived.  It was the Crown’s case that on the indicted date she made her first visit to the flat at Lucas Court Sydenham belonging to his grandmother where Porter lived, but Porter’s that she had on at least one other occasion been inside.  Although at first she claimed that on 10th May she had been tricked into going there, she conceded in cross examination that she bought drugs from the two defendants.  She was also lonely. She arrived at Lucas Court at about 11pm on Tuesday, 10th May 2000 and before she escaped on Wednesday 11th had been raped, buggered, indecently assaulted, threatened, tied up, beaten, and further humiliated. 
5.	In Porter’s bedroom he bound her legs with insulating tape, hit her face with his fist and with a hollow metal tube, and, when she had been forced to undress, applied its open hollow end to her nipples, twisting it, and causing her great pain.  Her hands were tied and she was forced to perform oral sex on Porter and on Maloney.  She was made to drink what she was told was urine.  She was then raped, by both, according to the Crown, but only Porter was convicted.  Porter put a knife to her stomach and threatened her.  After this, Maloney left the flat.
6.	For 12 further hours she remained there, 5 or 6 times enduring rape or buggery, the indicted counts being specimens.  Three or four times Porter  quit the flat and bound her with tape and flex, on one occasion gagging her with her knickers and a belt.  When she contrived, part dressed, to escape, she ran to a nearby coachworks and sought help.  Witnesses spoke of her immediate complaint of rape, and of her distress.  Upon their arrival the police saw bruising and she was hysterical.  A forensic medical examiner (FME) found not only fresh multiple bruising but also traces of tape upon her body, probably her forearm.
7.	Upon two searches of 23 Lucas Court there were found pieces of tape, flex, the metal pipe, and items of her clothing and jewellery, including her knickers and a belt.
8.	Forensic evidence disclosed cellular material from one end of the pipe which matched the DNA profile of Porter.  His semen was in her vagina and outside her anus.  The conclusion of the FME was that nothing inconsistent with her account was found. 
9.	In interview Porter accepted that there had been anal, vaginal and oral sex but said that these acts were all payment in kind for drugs and thus consensual.  She had earlier given him and Maloney £20 to buy drugs on her behalf.  He denied coercion or false imprisonment.  He gave the same account in evidence, accepting that he punched her but denying the use of the pipe. 
10.	Maloney made no comment in interview and at trial said that the sexual acts had not been consensual.  He had, he said, been forced by Porter to have oral and vaginal sex with her.  During his evidence he modified his stance to the extent of abandoning the element of coercion but supporting much of what Deborah Simes had said.  Porter made no allegations at trial about Maloney, who on any view had left the flat after 3 hours or so, whilst she remained for a further eleven, so that the effect was of an unilateral cutthroat, Maloney remaining undamaged.  Porter has an IQ of 79, and endures a dreadful family background.  Maloney is significantly brighter, and has a supportive family.  Porter, whilst on remand in Feltham YOI, had shown his proof to Maloney who in evidence agreed this was because Porter was “dumb”.  Maloney gave Porter nothing. Throughout his evidence it was clear that Porter, who was first on the indictment, trusted Maloney and was protective of him.
11.	The chronology of events leading up to the trial is important.  Committal was on 6th  July and primary disclosure on 18th July.  At a Pleas and Directions hearing before HHJ Pontius, the trial judge, each defendant on 3rd August entered pleas of not guilty.  The fixed date for trial was 18th September.  The judge ordered the Crown to serve its scientific evidence no later than 24th August.  By that date, it had not in entirety been served but the defence had had, since about 13th August, the statement of Mrs. Reed the DNA expert, whose evidence placed Porter’s DNA on the end of the pole. 
12.	The judge, on 24th August, was told of the defence anxiety to achieve expert opinion of their own upon those findings.  Mrs.Smullen who appeared here and below, accepted then and still accepts that the tape was of less importance than the pole.  There had been difficulties in securing legal aid for the instruction of appropriate experts, although the judge had given what help he could when on 24th August he made clear that the defence were right to seek such opinion.  He was told that the likelihood of acquiring a report by 18th September was low.  An application was thus made for the vacation of the fixture, for some 2 working weeks.  He was reminded that the defence had acted expeditiously at all times and bore no blame for the situation in which they found themselves.
13.	The judge refused to break the fixture, for the following reasons:
i)	Each defendant was young and had been in custody since arrest.
ii)	The complainant would have prepared herself for a trial beginning on 18th.
iii)	The scientific evidence was not crucial to the defence case.
iv)	An expert’s report could be acquired during the currency of the case.
14.	As to this last point, Mrs. Smullen had made plain her wish before cross-examination of Deborah Simes to have sight of what an expert could say. The judge rejected that submission, saying:
"the prosecution scientist, Amanda Kirkham [now Reed], describes finding cellular material on the plain unbound end of the metal pipe.  Her use of that phrase without further description or elaboration indicates a small amount of material rather than blood and skin residue, and thus it can in my view be assumed with reasonably safe confidence that further scientific opinion as to the nature of the cellular material, and in particular the area of the body from which it originated, would be impossible.

Further, it is of significance that Miss Kirkham’s finding is that the chance of the cellular material coming from someone other than and unrelated to the complainant is in the order of one in a billion.  That is not to say, of course, that scientists can never be mistaken, but it is plain in those circumstances that the basis for seeking further expert opinion on the matter must be far less sound than if, for example, the conclusion had been in the order of one in fifty, a hundred, or even one thousand, and it has sensibly and rightly been pointed out, that there is no good reason why the trial cannot proceed alongside continued efforts by the defence to obtain the scientific evidence they maintain that they require.  The evidence will not begin before tomorrow at the earliest and the complaint alone is expected to be a number of days in the witness box.  The prosecution case cannot conclude until well into next week, by which time the scientific evidence, if the defence wish to pursue it, could have been obtained.  Of course if that evidence is significantly at variance with that of the prosecution scientist, she can be recalled without difficulty and the evidence put to her.  If, as is likely to be the case, it is consistent, then that evidence will not figure in the trial at all.

	I reject the contention that any scientific evidence sought by the defendant must be in the hands of defence counsel before cross-examination of the complainant and the prosecution scientist.  The presentation of the first defendant’s case will not be in any way handicapped.  Indeed his case as set out in the defence case statement can and should fully and without difficulty be put to the complainant.

Further, any change in advice given to the defendant in the light of the findings of a defence expert will not result in any difficulty, let alone disadvantage of injustice, because I shall of course allow the defence such time as they may need in due course for the giving of professional advice when necessary during the trial."

15.	In the event Mrs. Smullen did not pursue the possibility of an expert’s report during the currency of the trial.  She secured in cross-examination of Mrs. Reed the concession that the cellular material found upon the pipe might have been from sweat, thus opening up the possibility that, merely by handling it, the complainant could have deposited the small amount of cellular material there found.  In the context of the case put to the complainant that she had on an earlier occasion visited the flat and must have handled the pipe, (which it was established was often there), this was a not unimportant point for the defence.
16.	The complaint of Mrs. Smullen relates to the difference in weight between that concession on the one hand, and the chance she lost, consequent upon the judge’s refusal to vacate the fixture, of calling an expert positively to aver the likelihood of the material being sweat, on the other hand.  She submits that, as the case progressed and the hitherto unknown position of Maloney became clear, it became even more important for that avenue to be pursued.  Maloney said to the jury (in evidence which was a surprise to Porter’s defence) that Porter had put the pipe into the mouth of the complainant and twisted it. The highlighting of that as a potential explanation for saliva or tissue as the cellular material examined was damaging unless contradicted or mitigated by the challenge which a defence expert’s report might have afforded. 
17.	The importance of what Mrs. Smullen called “independent” evidence was, she said, all the greater when evidence said to amount to lies by the complainant were added to police carelessness or worse.  Exhibits which included a piece of tape found on Porter’s bed were never seized.  No samples were taken of what were said to have been marks upon the complainant from tape.  “Urine” in a beer bottle was not analysed. Items of clothing belonging to the complainant were not found when first the flat was searched.  Although Mr. Hardy, who appeared here and below for the Crown, was extremely helpful, there was a limit to how much even his best endeavours could cure. 
18.	The grounds of Appeal are as follows: 
i)	Porter was not allowed proper time to prepare his case by obtaining expert reports.  This breached Article 6(3)(b) Human Rights Act 1998.
ii)	There was not sufficient guidance given to the jury as to how to deal with Maloney’s evidence against Porter.
19.	As to ground (i), we accept that the judge had made efforts during the Pleas and Directions hearing of August 24th to help the defence acquire the expert report they sought.  From then there were 25 days until the trial began.  We were at first puzzled as to why there had not been continued efforts to secure a report, given that the judge, whilst unwilling to vacate the fixture, was nevertheless prepared to have the complainant recalled if necessary.  However, we accept Mrs. Smullen’s assurance that persuading an expert even to contemplate the necessary work in time had proved impossible when contacts were made in August.
20.	In R v Atkins, (unreported) CACD 21st July 2000, a conviction for robbery was quashed and a retrial ordered after the refusal of an adjournment for the defence to acquire the report of an expert upon the refractive index of glass from the scene and particle transfer.  Giving the judgment of the court Latham LJ said:
"the defence were precluded from the opportunity of challenging properly that evidence by reason of the fact that they did not have any expert evidence of their own which could either have gone to the question of the refractive index of the particles of the glass, or to the opinion as to the ability of particles to be transferred in the way suggested on behalf of this appellant."
21.	However, in that case the relevant forensic evidence was made available only on the first day of trial, whereas in this it had been available for some 25 days. Additionally the judge in Atkins felt that defence counsel could by cross examination deal with the “critical matter”, whereas Judge Pontius did not rule out the possibility of an expert report being secured. 
22.	Although she made headway during cross examination (in the form of the concession won from the forensic scientist as to possible sweat on the pipe), Mrs Smullen nonetheless emphasises the qualitative difference between that answer and the chance denied to her of calling an expert to say that it was likely to be sweat.  It remains the defence contention that an expert might have gone yet further.  Whether or not that is so, we agree with Mrs Smullen’s primary position.  In our judgment the judge’s  decision to refuse the limited adjournment sought was unwise.  Porter faced allegations which were serious and shocking.  He was young, and of very low IQ.  His co-defendant was markedly cleverer and, during the trial, effectively attributed the responsibility for the episode to Porter.  It was desirable, if an expert’s report were to be obtained, that it be  available before the cross examination of the complainant. 
23.	As to ground (2), again we agree with the submissions made by Mrs. Smullen.  The summing up is silent as to the care with which the jury should have approached the evidence of Maloney as it affected Porter.  As the Court of Appeal said in R v Burrows (unreported) 23rd April 1999, 
"The principle is well-known and readily understood and is perhaps most usefully summarised in the judgment of Lord Taylor CJ in Cheema (1994) 98 Cr App R 195, after he had extensively reviewed all the authorities.  Even before the coming into effect of the Criminal Justice and Public Order Act 1994, no corroboration direction was required.  Nevertheless, where a witness with a purpose of his own to serve, whether or not he was a co-defendant, had given evidence incriminating the defendant, the normal practice was, and is, that a warning should be given that such evidence should be approached with caution.  The precise terms of any warning, of course, depend on the individual case, and it is perfectly acceptable, for example, for the judge to refer to it as an axe to grind, which is colloquial and readily understood."

24.	The jury in this case should have been alerted, and simple language would have been appropriate, to the benefit Maloney might have thought he would derive from the damaging evidence he gave against Porter.
25.	Nonetheless, the Crown’s case against Porter was on any view compelling.  There was not only the evidence of the complainant but also that of her immediate distress and hysteria, her injuries, the tape, the traces of her body hair upon it, and the presence in the flat of the metal pipe.  Although the summing up lacked the guidance which should have been given to the jury upon the vested interest of Maloney in giving evidence of the type he did, there was nevertheless a clear and firm direction given as to separate defendants and separate verdicts against the background that Maloney had (on the averment of all) early departed the scene before the worst excesses were said to have occurred.  In our judgment, the evidence as it emerged founded so strong a case that we are satisfied that the conviction is safe.
26.	The appeal against conviction is therefore refused.
27.	Before leaving the topic of expert reports we would say this.  Judges would do well to reflect before incautiously refusing applications for adjournments so that expert advice can be available to the defence.  This court has more than once recently heard appeals based upon such a ground.  The qualitative difference between the opportunity to obtain concessions in cross-examination as opposed to the calling of opinion evidence from an expert skilled in the relevant field is obvious.  Each case will inevitably turn upon its own facts.  However, the interests of defendants and the need for vigilance in complying with Article 6 call for careful analysis of the implications before a ruling is given.
28	As to the appeal against sentence, the term of 12 years detention is in our view too long.  The offences were grave and the effect upon the victim immeasurable.  Nevertheless Porter is young, limited, vulnerable, and had never before received a custodial sentence.  His only relevant conviction was for an indecent assault wholly different in character.  We consider that the interests of justice can adequately be served by a term of 10 years’ detention, which we substitute.  To that extent, the appeal against sentence succeeds.