No. 2007/00156/D1

Neutral Citation Number: [2007] EWCA Crim 2633
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Monday  22  October  2007

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MR  JUSTICE  DAVIS

and

MR  JUSTICE  SIMON

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R E G I N A

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DEAN  SOLOMON
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Miss N Lethbridge appeared on behalf of the Appellant

Mr D Barnes appeared on behalf of the Crown
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J U D G M E N T
Monday  22  October  2007

THE LORD CHIEF JUSTICE:  
Introduction 

1.  This appeal against conviction comes before us on a reference by the Criminal Cases Review Commission.  
 
2.  On 12 January 1993 in the Central Criminal Court before His Honour Judge Denison the appellant was convicted of two counts of rape (counts 1 and 2), one count of indecent assault (count 3), one count of buggery (count 4) and one count of attempted buggery (count 5).  The jury were discharged from giving verdicts on two counts of indecent assault which were alternative to counts 4 and 5.  
 
3.  The appellant was sentenced on the same day to concurrent terms of imprisonment as follows: on counts 1 and 2 eight years; on count 3, two years; on count 4, five years; and on count 5, five years. 
 
4.  This is the second attempt by the appellant to set aside his convictions.  On this occasion he seeks to advance a case that differs very significantly from that advanced both at his trial and on a subsequent unsuccessful application for leave to appeal against his convictions.  He seeks to adduce fresh evidence in support of his new case in the form of a video recording.  Having regard to the nature of that recording the critical questions that this court has to decide are whether to permit the appellant to advance the new case and whether to admit the fresh evidence to support it.  

5.  The complainants were two girls whose identities are not to be disclosed.  L was aged 14 at the time of the offences and her friend K was aged 15.  
 
6.  L and K alleged to the police that the appellant had persuaded them to come to his flat in order for him to take photographs and video recordings for a fashion shoot.  He had told them that he was a photographer who had recently worked on a video shoot for a well‑ known pop start.  They had gone to his flat on three occasions.  On the first two occasions no sexual advances were made by the appellant.  On the third visit, in July or August 1991, they claimed that he had subjected them to a series of sexual assaults.  
 
7.  L claimed that the appellant had approached the two of them naked when, in accordance with his directions, they were lying on the quilt in swim suits.  He told them to rub oil onto his body and penis.  He had inserted his penis into L's vagina, despite her attempts to fight him off.  She had gone to the bathroom but could find no way to escape.  When she returned to the living area the appellant told her to bend over and, when she did so, he tried but failed to push his penis into her anus.  She did not tell anyone what had happened because she had been told by the appellant not to, and was terrified.   
8.  K stated that she had refused to rub oil onto the appellant's penis but that he had taken her hand and made her masturbate him.  He then inserted his fingers into her vagina before commencing sexual intercourse with her.  He then did the same to L.  She was crying, as was L.  She saw him attempt to push his penis into L's anus and then was asked to bend forward herself.  She did so and he then penetrated her with his penis, causing her pain.  
 
9.  K did not immediately tell anyone what had occurred.  She did tell her boyfriend that some sort of sexual activity had occurred, which led to his approaching the appellant and demanding payment for her modelling services.  A payment of £200 was made to K's mother by the appellant's girlfriend, Joz Ghosh.  According to K's mother, K became morose and withdrawn after the visits to the appellant's flat.  A social worker became involved in October because of her poor school record.  K made the allegations of sexual assault to her and the social worker informed the police.  
 
10.  The appellant was arrested on 17 October 1991.  He asserted that the allegations were "utter rubbish" when questioned by the police, but refused to answer any specific questions.  Subsequently the appellant had informal conversations with three police officers that did not satisfy the requirements of the Police and Criminal Evidence Act.  In the course of these he stated that he had a video recording that showed that he had had consensual sex with the two complainants.  He appeared to be keen to establish whether his prospects of obtaining bail would be improved if the video were produced, albeit that it would evidence the offence of unlawful sexual intercourse.  He was advised by the officers that he should tell his solicitor about the video.  
 
11.  The first trial of the appellant commenced in September 1991.  He was represented by Miss Heather Hallett QC and Mr Christopher Kinch.  Shortly before the trial began he procured for his counsel a video recording (video DDS/1) which recorded three sessions of the complainants modelling clothes and performing exercises.  It showed no sexual activity.  He told his counsel that the tape had not been edited.  K and L were cross‑examined on that basis.  The trial was halted when the prosecution demonstrated that the video had in fact been edited.  After a consultation with the appellant, his counsel informed the judge that they could not continue to act for him.  The trial was abandoned and a new trial ordered.  At that trial the appellant was represented by new solicitors and counsel.  
 
12.  The new trial took place in January 1993.  Video DDS/1 was adduced in evidence.  The appellant's case was that the video showed all that had occurred between himself and the complainants.  No sexual activity had taken place.  He did not give evidence.  He was convicted on the five counts.  
 
13.  The appellant applied for leave to appeal against conviction, out of time, on 31 August 1994.  He drafted his own grounds of appeal which alleged that the evidence had been tampered with, that there had been non‑disclosure by the police and that the judge had been biased.  The application was dismissed by the singe judge on 21 February 1995 and, on renewal, by the full court on 6 April 1995.  
 
14.  The appellant was released from custody on licence in 1997.  He was subsequently arrested for breach of his licence and was also charged and subsequently convicted and sentenced to imprisonment on charges of indecent assault and taking indecent photographs of children.  
 
15.  The appellant was released again in October 2000, subject to restrictions as a sex offender.  In November 2000 the police searched his home and discovered a further video recording (video KH3) hidden under the base of a kitchen unit.  This showed the appellant indulging in consensual sexual activity with K and L.  It is accepted by Mr Barnes on behalf of the Crown that this must have been taken on the occasion of the visit that led to the charges against the appellant.  The court has seen the video.  It shows the complainants plainly consenting to the activities proposed by the appellant.  There was no attempt to fight him off and there was no crying.  The sound recording shows that the complainants consented to the making of a pornographic film to be shown to a third party.  It also shows vaginal penetration from behind rather than buggery.  
 
16.  The appellant was charged with two offences arising from the discovery of video KH3.  The first was making an indecent video recording of children (count 1) and the second of possession of an indecent video recording of children for distribution (count 2).  He pleaded guilty to count 1 after an adverse ruling in respect of a reliance on "autrefois convict" and an allegation of abuse of process.  He gave evidence that K and L had agreed to the sexual activities recorded as a "bit of fun" for which he had agreed to pay.  He was conditionally discharged for twelve months in respect of his conviction on count 1.  He was acquitted on count 2 on 5 October 2001.  An application for leave to appeal was unsuccessful.  
 
17.  On the recommendation of his counsel, Miss Nemone Lethridge, the appellant then applied on 30 April 2003 to the Criminal Cases Review Commission for a review of his conviction (the 1993 conviction) relying on video KH3 as demonstrating that the sexual activity that had taken place had been consensual.  
 
The application to adduce fresh evidence 
18.  Section 23(1) of the Criminal Appeal Act 1968 provides that the Court of Appeal may, if they think it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies.  When considering whether to do so the court is required by section 23(2) to have regard to:  
 
	(a) whether the evidence appears to the court to be capable of belief; 
 
	(b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; 
 
	(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and 
 
	(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.  
 
19.  Provided that we give leave to the appellant to change his case so as to raise the issue of whether the activities that took place were consensual, there can be no doubt that (a), (b) and (c) are satisfied.  The Commission correctly so concluded.  There was, however, an issue as to whether the appellant had a reasonable explanation for the failure to adduce this evidence as his trial.  

20.  The Commission explored this question at great length ‑‑ a task that was rendered difficult by the passage of time and by the fact that the appellant had changed solicitors no less than four times.  At his trial the appellant gave detailed evidence about the video KH3.  That evidence was that he had been subject to blackmail demands by K's boyfriend, which led him to hide both the videos.  He recovered the video DDS/1, which had been concealed by his girlfriend, but he claimed that she did not provide him with video KH/3.  
 
21.  He gave a similar account when interviewed by the Commission.  He also told the Commission that he had informed his various solicitors of the existence of the video.  In particular, he claimed that the solicitor from Burton Copeland (who had acted for him on the occasion of the first trial) asked him to produce it for his trial and that when he explained that he was unable to do so, advised him that a defence based on a video recording which he was unable to produce was unlikely to succeed.  At that stage the appellant decided to challenge the complainants' evidence that any sexual activity had occurred on their third visit to his flat by using the first video.  It was in fact used in his defence at both trials.  The appellant stated that he decided not to give evidence, thus to avoid the possibility of being asked questions as to whether or not he had ever had sex with the complainants.  He claimed that he was advised not to inform his defence counsel of the existence of the second video as, if he did so, it would be unlikely that counsel would represent him on the basis of the defence he wished to put forward.  
 
22.  The Commission contacted the appellant's various solicitors (other than one who had died).  None of them recollected or had any note that confirmed that they had been informed by the appellant that he had had consensual sex with the complainants and that a video existed that recorded this.  The appellant's solicitors and counsel were aware of the fact that the appellant had asserted to three police officers that such a video existed, for the prosecution attempted to adduce this evidence at the first trial and this was successfully resisted.  None of the counsel who represented the appellant had any recollection of being informed that the video existed.  
 
23.  The Commission concluded that it was possible, but by no means clear, that there was a reasonable explanation for the appellant's failure to produce the video at his trial, but anticipated that this court would not necessarily form the same view.  
 
24.  Miss Lethridge for the appellant has sensibly not sought to persuade us that there was such a reasonable explanation.  She was right to take this course, for the account given by the appellant is not credible.  He gave no explanation as to why his girlfriend Ms Ghosh, whom the Commission were unable to interview, produced for his use video DDS/1, but not video KH3.  We think it inconceivable that, if the appellant had told his solicitors that he had indulged in sexual activities with the complainants that were voluntary and that these were recorded on a video in the possession of his girlfriend, the solicitors would not have attempted to obtain the video and instructed counsel of its alleged existence, and of the appellant's contention as to its contents.  Counsel were not so instructed.  They had no recollection of such instructions and, had they received them, they could not have advanced, on behalf of the appellant, the case that no sexual activity had occurred.  
 
25.  Accordingly it is clear that there is no reasonable explanation for the appellant's failure to produce video KH3 at the original trial.  He did not do so because he took a tactical decision to attempt to secure an acquittal on all charges by relying simply on video DDS/1, which had been deliberately edited for the purpose.  
 
26.  The Commission considered that, had he been able to, the appellant would have been likely to produce video KH3 to back an appeal after he had been convicted.  Had he done so he would have had to concede that he had deliberately refrained from producing it at his trial in order to advance a false case.  In such circumstances we consider it highly unlikely that the Court of Appeal would have been prepared to receive the new evidence.  
 
27.  Is the position any different now?  The Commission envisaged that in the circumstances in which we find ourselves we might consider that it was nonetheless necessary and expedient in the interests of justice to receive new evidence which appears to demonstrate that the appellate was not guilty of the most serious of the offences of which was convicted.  
 
28.  Mr Barnes has referred us to the case of R v Cairns which demonstrates that, even where there is no reasonable explanation for failure to produce the evidence at the trial, if the court concludes that the evidence would have had a significant effect on the proceedings, the court can, if so minded, admit that evidence.  
 
29.  Having said that, it is only in quite exceptional circumstances that this court will admit fresh evidence on appeal where the evidence has been deliberately withheld at the trial for tactical reasons.  Miss Lethridge submits that in this case there are quite exceptional circumstances.  She submits that the evidence clearly demonstrates that the complainants had lied, that the appellant was innocent of the serious charges brought against him, and that, having been convicted of those charges, his record gives a false picture of the danger that he poses to the public, which may already have worked unfairly to his prejudice and will be liable to do so again should he be again convicted.  

30.  It seems to us that there are other relevant factors which make this case exceptional.  This is not a case where, in seeking leave to appeal, the appellant sought to change his case and adduce the new evidence after he had been convicted.  His original suppression of the evidence resulted in his conviction of offences that carried significantly more severe sentences than the crimes that he had in fact committed.  He has served those sentences.  The fresh evidence came to light when the police discovered it and successfully used it as the basis of a further prosecution.  If at this stage we admit the evidence it will simply be to permit the record to be put straight so that the appellant is not hereafter at risk of being treated on the basis of an inaccurate criminal record.  In these circumstances we are persuaded that there are here quite exceptional circumstances.  Accordingly, we give leave to adduce the fresh evidence.  
 
31.  The reason for that decision applies equally to the other issue that we mentioned at the outset, namely whether the appellant should be permitted to advance a different case on appeal to that which he advanced at his trial.  Here again this is something that this court will only permit where there are exceptional circumstances.  But for the reasons that we have given, we are satisfied that there are such exceptional circumstances.  The evidence that we have admitted plainly shows that the appellant was wrongfully convicted on counts 1 and 2 of rape, on count 4 of buggery and on count five of attempted buggery.  The video shows a number of instances of indecent assault.  The Criminal Cases Review Commission did not refer the conviction on the count of indecent assault which attracted a sentence of two years, no doubt for that reason.  
 
32.  Accordingly we will quash the counts of rape (counts 1 and 2), the count of buggery (count 4), and the count of attempted buggery (count 5).  We will substitute in relation to each complainant one count of indecent assault and impose in relation to each of those counts a concurrent sentence of two years' imprisonment.