No: 2005/04725/B2 
Neutral Citation Number: [2006] EWCA Crim 2988
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 10th November 2006
 
B E F O R E:

LORD JUSTICE TUCKEY 
MR JUSTICE HOLMAN 
MR JUSTICE HODGE 

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R E G I N A 

-v- 

JON ANDREW SCOTT LEAVER
 
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MR M COGAN appeared on behalf of the Appellant
MR R PLATTS appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE HOLMAN:  This is an appeal against conviction by leave granted by the full court.
2.	The appellant, Jon Leaver, is now aged 24.  On 19th August 2005 in the Crown Court at Liverpool, before His Honour Judge Boulton and a jury, he was convicted on two counts.  Count 1 was rape.  Count 2 was causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861.  He was sentenced to 14 years' imprisonment on each count, to be served concurrently.
3.	Although there were two counts, there was one victim and the facts comprise a single overall episode, albeit that it occurred in two distinct stages.  Rather unusually, the whole of the first stage of this episode, namely the alleged rape, was captured on various CCTV cameras, and indeed the appellant even photographed and recorded a part of the rape upon his own mobile telephone.  From this material a video was compiled which was available to the jury and watched by them several times, including after retirement.
4.	The essential facts in outline were that on 19th February 2005 the complainant, KD, had gone out for the evening with two female friends.  At about 11.00pm she and her friends went to a nightclub in Leigh, where she met the appellant.  They left the club together at about 1.50am, and apparently the intention was that the complainant would get a taxi.  However, she was unable to find one, and so she and the appellant walked together to the nearby bus station.  Here, the appellant performed oral sex upon the complainant whilst she sat on a bench in a bus shelter.  All of this was plainly visible on the CCTV and the video that was made from it.
5.	After this, they walked together to what was described as a delivery yard at the rear of a shop, and further sexual activity took place.  After a while, they began to have full vaginal sexual intercourse.  This, too, was visible on the CCTV and the video, and it was not in dispute that all the sexual activity so far, including the sexual intercourse, was entirely consensual.  The evidence of the complainant and the case of the prosecution was that after sexual intercourse had been taking place for about five minutes, the appellant began to become very rough.  As a result, on the evidence of the complainant, she clearly withdrew her consent, saying "no, no", but the appellant continued with increasing roughness with the sexual intercourse, thereby raping her.
6.	After that part of the episode ended, the appellant carried the complainant a certain distance away from the scene of the alleged rape.  By a combination of being carried and also each of them walking, they seem to have ended up in an alleyway.  We have been told today by Mr Platts, on behalf of the Crown, that about 15 minutes elapsed between the end of the sexual intercourse and the alleged rape, and the events which we are now about to describe.
7.	The complainant said that after they arrived at the alleyway, the appellant threw her down and told her to "suck [his] dick".  She refused to do so, whereupon he punched her several times in her face with his fist.  As a result of the attack, she sustained serious facial injuries, including two fractures to the jaw, damage to her teeth, and extensive swelling around her face and head.  The appellant ran from the scene.
8.	It was that attack which took place in the alleyway that constituted count 2, causing grievous bodily harm with intent.  Mr Platts has made plain to us today that, although once the sexual intercourse developed into rape there was a degree of violence by the appellant upon the complainant, that violence was all, as it were, integral to count 1, the rape, and not at all encompassed within count 2, causing grievous bodily harm with intent.
9.	The case of the appellant in relation to count 1 was that the complainant had never withdrawn her consent to the sexual intercourse, or that if she had done so, he nevertheless reasonably continued to believe that she was consenting.  His defence in relation to count 2 was that he had not intended to cause such serious injury, and that therefore he lacked the requisite intent for an offence under section 18.  He fully admitted to the jury that he had punched her, and indeed when he gave his evidence he agreed that he had punched her six times.
10.	The complainant gave evidence at trial.  She described how they had walked to the bus station and had there engaged in the oral sex.  She agreed that it was as depicted on the video tape, and that it had been consensual.  She said that after that ended the appellant suggested they go somewhere "a bit quieter".  She knew that sexual intercourse would take place and she was consenting to it, indeed she gave the appellant her phone number.  She said that after the sexual intercourse began, she felt that she was falling backwards over a wall that she was leaning against and she started to say "no, no".  The appellant pulled her hair.  She told him to stop, and that he was hurting her.  He then put his hands around her neck.  She had tried to push him away.  She said that the appellant could not have been in any doubt that she was no longer consenting to sexual intercourse from the moment when he pulled her hair.  She described how, once intercourse had ended, he carried her some distance and that they ended up in the alleyway.  She said that he had finally thrown her down to the floor and sat on her, and told her to "suck [his] dick".  When she refused, he punched her and it felt like a metal pole hitting her face.  She finally got away and cowered against the wall.  The appellant came over, hugged her and said he was sorry, and then left the scene.
11.	The appellant also gave evidence.  He said that on the evening of 19th February he had consumed various quantities of alcohol by the time he met the complainant at the nightclub.  They began chatting and ended up kissing.  He said that at one point she was straddling him while they continued kissing.  As the video showed, they had had consensual oral sex in the bus station and then later full sexual intercourse.  He agreed that he was filming part of the intercourse on his mobile phone, and said that she was fully aware of this.  He said that the sex became rougher and he agreed that he was pulling her hair.  He said that she was shouting "harder" and "yes".  Once the intercourse was over, he had carried her some distance.  He said that they were larking around and giggling, and he believed that she was still consenting to sex.  He said that they went into the alleyway with a view to having further sex there.  He said that there was no excuse for his behaviour other than drink.  He agreed that he punched the complainant.  She started screaming, and he then punched her five or six times.  He said that she did not deserve it, and he was deeply sorry.
12.	The appellant had one previous conviction.  That was a conviction, upon his plea of guilty, in January 2002 to an offence of indecent exposure with intent to insult a female, committed in April 2001.
13.	Before the present trial commenced, the prosecution gave formal notice that they wished to adduce evidence of that conviction and the facts of that offence, as evidence of bad character that was relevant to an important matter in issue between the defendant and the prosecution.  Although we have not seen the formal notice, and it is apparently not present in this courtroom today, Mr Platts has told us that he recalls that the notice identified that the previous conviction was relevant to propensity to degrade women.
14.	The defendant and his advocate intended in any event to make an attack on the character of the complainant, and so evidence of the previous conviction would also have been admissible under paragraph (g) of section 101(1) of the Criminal Justice Act 2003.  Thus, as we understand it, there was consensus between counsel for the prosecution and counsel for the defence, even before the trial began, that this previous conviction would be adduced in evidence.  Apparently the judge was informed of this fact in court at the outset of the trial, but before the jury had been sworn in.  Deeply regrettably, it appears that at that time no focussed consideration was given to the basis upon which the conviction was going to be adduced, or as to its relevance to the issues in the present trial.  Little was said by counsel to the judge at that stage; and deeply regrettably, at any rate with hindsight, the judge did not take the opportunity of clarifying at that early stage the purpose for which the fact of that conviction and facts of that offence were going to be adduced.
15.	A formal admission was drafted and signed by both counsel as to the facts of the previous offence and of the conviction.  As the admission was quoted in full by the judge in the relevant passage of his summing-up, we will not at this stage quote it.
16.	After the conviction, there was an application for leave to appeal on a number of grounds.  They were all refused by the single judge, but the application was renewed before the full court on 7th July 2006.  This court granted leave on one ground only, which is conveniently described in paragraph 8 of the judgment of this court on that day, where they said:
"We do, however, consider that ground (5) of the grounds of appeal is one which merits the attention of the full court.  That argues that the learned judge erred in directing the jury that they could take into account the applicant's previous conviction for indecent exposure in 2001, both on the issue of whether the defendant was the sort of person who was prepared to degrade and insult a woman for his own sexual gratification, and on whether or not the defendant's account to the police in interview was truthful, and on the issue between the prosecution and the defence as to the use of violence in this case." [emphasis in original transcript]
17.	The judge began his summing-up late one afternoon.  There had been no discussion between the end of the evidence and speeches and commencement of the summing-up as to the content of the summing-up and any directions which the judge might give.  Again, at any rate with hindsight, that was deeply regrettable.  We cannot help feeling that if the judge had taken the opportunity at that stage to discuss with counsel and clarify the appropriate direction as to the relevance of the previous conviction, the subsequent problems would not have ensued.  As it is, the judge appears to have launched straight into his summing-up at the close of the speech for the defence.
18.	At page 1 letter F of the summing-up, the judge said:
"How you decide the case is a matter for you and how you approach your task is a matter for you for a reason that I will explain in a moment."
19.	Pausing there, the judge later did fully and correctly direct the jury that matters as to law were for him, but all matters of fact were entirely their province.  However, he continued at page 1 by saying:
"This is only a suggestion and you can reject it if you wish or you may think it is helpful and adopt it.  I would invite you to look at count 2 first because it is less problematic.  If you come to certain views on count 2 and decide that he is guilty as alleged then it may help you to sift through the evidence on count 1.  If you think it is better that you should approach the case chronologically and look at count 1 first of course you are entitled to do so.  What I suggest is no more than a suggestion."
20.	Later, at page 2 letter E, the judge clearly and correctly directed the jury that the counts did not stand and fall together because the evidence was different on each, and that the defendant might be guilty on one but not the other, or of course on neither, and he was careful to say that they must give separate consideration to each count.  Nevertheless, from the very outset of his summing-up, there was that clear suggestion to the jury that they might begin their deliberations by considering count 2 first.
21.	The judge then identified for the jury what the actual issues in the case were.  At page 2 letter G he said, in relation to count 1:
"... effectively in count 1 the allegation of rape is that although intercourse did occur, although intercourse was consensual, there was a point, say the prosecution, when it ceased to be so and he knew perfectly well that it had ceased to be so and if that is the case he is guilty of rape, if not he is not."
22.	Later, at page 8 letter B, he said, again in relation to count 1:
"So that is the test that you have to apply; are you sure that there came a point when it was without her consent and that he did not reasonably believe that she was consenting?"
23.	In relation to count 2, he defined the issue as follows.  Again on page 8 at letter D he said:
"Count 2.  All but one of the elements of count 2 are admitted now."
And at page 9 letter B he said:
"So the question only for you to decide is whether when he did that [viz punched her] was it with intent to do her really serious harm?"
24.	As we have said, the judge began the summing-up late one afternoon.  After only a few pages of summing-up and some relatively introductory, although important, passages, he broke off and sent the jury home for the night.  As we understand it, nothing was said after the jury left court that afternoon.
25.	The following morning, there was a very brief exchange in the absence of the jury.  It is appropriate that we read it in full.  This is at page 6:
"JUDGE BOULTON:  Just before the jury come in, in order to deal with the bad character direction I have to deal with the issue that has arisen between the defendant and the prosecution because that is what the JSB direction says.  I have looked at it in this way; I had to look at the offence with which he was charged in 2001 and what that actually involves and therefore what is the propensity that we are looking at.  The closest I can get is this; whether Jon Leaver is the sort of person who is prepared to degrade and insult a woman for his own sexual gratification.  I am trying to use, I mean I appreciate that it is [the] Vagrancy Act of 1824 for heaven's sake and it is very difficult to describe that in modern terms, but is that not what such an offence amounts to? 
MR PLATTS:  Yes. 
JUDGE BOULTON:  If it is relevant to propensity, is it not? 
MR PLATTS:  The propensity is exactly that, the fact that he is, if the jury accept it of course. 
JUDGE BOULTON:  Of course.  Thank you very much for your help."
At that point the jury returned to the court and the judge resumed his summing-up.
26.	Pausing there, we observe that in that passage the only relevance identified by the judge of the previous conviction for the offence in 2001 was as to "propensity", and the propensity which he had identified was whether the defendant was the sort of person who was prepared to degrade and insult a woman.  Mr Platts, on behalf of the prosecution, had plainly agreed that it was to propensity that the offence was relevant, and that the manner in which the judge proposed to identify or describe the propensity was "exactly that".  The judge had said nothing at all to alert Mr Platts, still less Mr Cogan on behalf of the defendant, that he intended to give to the previous conviction any wider significance or relevance than to propensity.
27.	Further, Mr Platts has very fairly said today that the fact of the previous offence and its facts could only have been relevant to the jury's consideration of count 1, the rape, and had no relevance at all to count 2, causing grievous bodily harm with intent.  Deeply regrettably, there was nothing in that brief passage which we have quoted, to alert either counsel to the fact that the judge thought that the facts of the previous offence might be relevant also in some way to count 2.
28.	At page 14 of the summing-up, the judge, appropriately, referred to the fact that the defendant had admitted to the jury that he had told a number of lies to the police and others.  We need not refer to them more specifically.  He then gave to the jury a correct and appropriate Lucas direction as to the relevance of any lies, and the way in which the jury should approach them.
29.	The judge then continued in a passage which, despite its length, we must quote in full, for it goes to the heart of this appeal.  At page 14 letter G, he said:
"Bad character.  In this case you have heard that the defendant has a bad character in the sense that he has a criminal conviction.  It is important that you should understand why you have heard this evidence and how you may use it.  As I will explain, you must not convict him only or mainly because he has a bad character.  You have heard of his bad character because it may help you to resolve an issue which has arisen between the defendant and the prosecution ..."
30.	Pausing there, all that wording of the direction was precisely and appropriately taken by the judge from the standard direction as to bad character suggested by the Judicial Studies Board.  He continued:
"... and I put it in a single sentence, namely, whether Jon Leaver is the sort of person who is prepared to degrade and insult a woman for his own sexual gratification."
31.	Pausing there, that was a direction precisely as foreshadowed by, and in line with, what the judge had said in the absence of the jury a short while earlier.  Although he did not use the word "propensity", his use of the phrase "is the sort of person who is prepared to" is of course a clear direction as to propensity.  If the direction had stopped there, there could have been no possible complaint about it.  However, the judge continued as follows:
"You may use the evidence of the defendant's bad character in the following ways; if you think it right you may take it into account when deciding whether or not the defendant's account to the police in interview was truthful.  A person with a bad character may be less likely to tell the truth but it does not follow that he is incapable of doing so.  You must decide to what extent, if at all, his character helps you when judging his evidence.
When you come to consider the issue between the prosecution and the defence as to the use of violence in this case you are entitled to have regard to the fact that the defendant has this recent conviction of such a nature provided you think it is fair and proper to do so."
32.	The judge then proceeded to remind the jury of the facts of the previous conviction by effectively reading out to them the language of the formal admission to which we have referred.  The judge said:
"Now look at the facts of that case because I think you have got those at the beginning of your bundle, have you not?  They should be the third document.  Let us remind ourselves what it is.  The question between prosecution and defence is whether he is the sort of person who is prepared to degrade and insult a woman for his own sexual gratification."
He then began to read verbatim the formal admission:
"At 13.30pm, 1330 hours or 1.30pm on 18th April 2001 the defendant followed a young woman behaving in a suspicious manner.  He then approached, touched her and then apologised.  He then continued to follow her, tapped her on the shoulder and as she turned round he pulled down his trousers exposing his erect penis.  He then said: 'Suck on this'.  The young woman thought she recognised him and gave his name to the police.  He was arrested, denied the offence but was picked out on an identity parade.  On 18th January 2002 he pleaded guilty to the offence of indecent exposure.  He received a community rehabilitation order, that is probation, for six months, compensation of £100 and costs of £290."
33.	At that point the judge had quoted in full the language of the formal admission.  He continued his summing-up by saying:
"The prosecution say that those words 'suck on this' have an echo in this case because [KD], who no doubt knew nothing of that previous conviction, said in her evidence to you that in that alleyway when he was physically attacking her he said ... 'Suck my dick', when he was sitting on her chest."
At that point, the judge said nothing further at all about the relevance of the previous conviction or bad character, and turned to his review of the facts and evidence.
34.	It is submitted by Mr Cogan, and indeed very frankly and fairly accepted by Mr Platts on behalf of the prosecution today, that in the course of that direction as to the relevance of bad character, the judge erred.  He went much further in suggesting its relevance than he had said he would in the exchange in the absence of the jury, and he suggested to the jury that it had relevance which it simply did not.  In the middle part of the passage he had said:
"... if you think it right you may take it into account when deciding whether or not the defendant's account to the police in interview was truthful."
35.	However, it is frankly impossible to see how the fact that in 2001 he had exposed his erect penis and asked the woman to suck on it, bears on the question of whether or not the account he gave to the police in interview in relation to the present matter was truthful.  The point might indeed have been made in the present case that in relation to the earlier offending he had in fact pleaded guilty, and when the woman in question declined to suck his dick, they had simply parted and there had been no attack of any kind.  In relation to the rape, the only issue was whether the complainant at some point withdrew her consent and, if so, whether he reasonably believed that she was still consenting, and it is very difficult to see how the facts of the offence in 2001 bear on the issue as it became.
36.	The further passage is even more troubling.  The judge said, as we have quoted:
"When you come to consider the issue between the prosecution and the defence as to the use of violence in this case ..."
37.	It is necessary to consider what was the issue between the prosecution and the defence as to the use of violence.  In passages which we have already quoted, the judge had made plain that there was no dispute at all that the defendant had indeed used the violence upon the victim.  He had agreed in his oral evidence that he had punched her six times.  The only issue between the prosecution and defence was as to the intention of the defendant and whether he intended to cause her really serious bodily harm.  Again, it is very difficult indeed to see how the fact that he had exposed himself, in the way described, to the earlier woman in 2001 bears at all on what was his state of mind and intent as he was punching this victim in 2005.  Further, as we have said, Mr Platts on behalf of the prosecution has fairly and frankly conceded that the facts of the 2001 offence were simply not relevant at all to count 2, namely the use of violence.
38.	Further, in that same passage, the judge referred, we think ambiguously, to "this recent conviction of such a nature".  Since he uses the words "such a nature" in the same sentence in which he is talking about "the use of violence", there is at least a risk that in some way it was being suggested that there had been violence involved in the offence in 2001.  On the facts of the formal admission, there was actually no violence at all.
39.	Finally, at the end of the whole passage the judge said, in a rather vague and confusing way:
"The prosecution say that those words 'suck on this' have an echo in this case ..."
We do not think that that helped the jury in any way at all properly to understand the actual relevance to which the previous conviction went.
40.	So it seems to us that in the passage which we have quoted there were in fact a number of serious misdirections by the judge, and that overall he went much further than he had indicated to counsel that he proposed to go when directing the jury as to the relevance of the previous conviction.  We have of course had to give very anxious consideration as to the impact of that direction upon the safety of the verdicts on each of the counts.  It is, we think, relevant to mention that the jury were unanimous on count 2, but convicted by a majority of ten to two on count 1.  It is, we feel, necessary again to recall that the judge had suggested to the jury, albeit that it was entirely a matter for them, that they might like to consider count 2 first, and then consider count 1 in the light of their conclusions on count 2.
41.	Mr Platts has submitted to us that in relation to count 1 the evidence contained within the video was so powerful and in effect so "self-explanatory" for the jury, that it is unlikely that their deliberations would have been affected at all by the misdirections that we have described.  There is, however, a real risk in this case that the jury did, as the judge had suggested, consider count 2 first.  There is, we feel, a real risk that in their consideration of count 2 the jury may, wrongly, have taken into account the fact of the previous conviction in the light of the misdirections by the judge.  If they did do so, there is a further risk that when they came to consider count 1 they relied upon their conclusions on count 2, which were already fatally affected by the misdirection.
42.	This was a very serious trial in relation to a very serious matter, and it is a matter of regret that we have to conclude that these convictions are unsafe.  But in our view, for the reasons we have given, they are unsafe.  Accordingly, this appeal against conviction on both counts must be allowed.
43.	LORD JUSTICE TUCKEY:  Now presumably Mr Platts there will have to be a retrial.
44.	MR PLATTS:  Yes.
45.	LORD JUSTICE TUCKEY:  Mr Cogan, do you have anything to say about that? 
46.	MR PLATTS:  The indictment will remain the same.  Due consideration will be given as to the suggestion by your Lordship that this piece of evidence that has caused a problem will not be put before any future jury.
47.	LORD JUSTICE TUCKEY:  I think that is probably very sensible.
48.	We allow the appeal.  We quash the conviction.  We direct that a fresh indictment be preferred for the appellant's retrial on counts 1 and 2 in the old indictment, and that he should be re-arraigned on that indictment within two months.
49.	Now, was he on bail before the last trial?
50.	MR COGAN:  No, he was in custody.
51.	LORD JUSTICE TUCKEY:  Is there any application?
52.	MR COGAN:  Not at the moment, no.
53.	LORD JUSTICE TUCKEY:  He will for the moment be remanded in custody to await that retrial, for which we will grant a Representation Order for solicitors and counsel.
54.	MR COGAN:  My Lord, yes.
55.	LORD JUSTICE TUCKEY:  Yes.  And finally we will direct that the venue for the retrial should be determined by the Presiding Judge for the circuit where the original trial took place.
56.	MR COGAN:  My Lord, I am grateful.
57.	LORD JUSTICE TUCKEY:  Anything else? 
58.	MR PLATTS:  Nothing further.
59.	LORD JUSTICE TUCKEY:  Thank you very much both of you.
60.	MR PLATTS:  I wonder whether I might mention one thing, the video.
61.	LORD JUSTICE TUCKEY:  We better give that back.
62.	MR JUSTICE HOLMAN:  You would like to have it back right now, would you? 
63.	MR PLATTS:  I thought there was only one copy.  (Handed)
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