Neutral Citation Number: [2008] EWCA Crim 2557
Case No: 200703372 D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/10/2008
Before :

LORD JUSTICE LATHAM
MR JUSTICE MACKAY
and
MRS JUSTICE DOBBS
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Between :

	R		
	v		
	JD		

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Michael Shaw  on behalf of JD 
Vera Baird QC and Amjad Nawaz on behalf of the Crown

Hearing date : Monday 4th August 2008
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Judgment
Lord Justice Latham : 
1.	On the 8th June 2007 at the Crown Court at Wolverhampton the appellant was convicted of 6 counts of rape and one count of sexual assault by penetration. He appeals against conviction with leave of the full court. The issue in question is the extent of comment which is proper by a judge when summing-up a rape case to the jury.
2.	The background to the counts in the indictment was that the appellant and the complainant had known each other for approximately five years, and had lived together for a significant proportion of that time. However, their relationship had deteriorated over time. According to the complainant, the appellant had become increasingly aggressive, particularly towards the end of 2005, when under the influence of alcohol. This may have been due in part to the fact that he was having financial problems. The complainant alleged that in the period up to the 31st October 2005, he had forced her to have sexual intercourse, once in their bed, and once on a sofa. On an occasion thereafter between October and December 2005, when picking her up from work, he had effectively abducted her and driven her off to a secluded place where he raped her in the car. 
3.	The final incident occurred on the 13th January 2006 when, according to the complainant, she was dragged upstairs, had her clothes forcefully removed and was then raped vaginally, orally and anally. He then, according to her, inserted a deodorant can into her vagina. The incident only stopped when the complainant’s son returned home. The appellant then left the home and went off to the public house to drink. When he came back, there was an incident which resulted in the police being called. At that stage the complainant made no allegations of any sexual assault on her. The first time that she did so was on the 15th January 2006 when Police Constable Stephenson came to take her statement about what had happened on the evening of the 13th.
4.	The appellant denied that he had ever had any sexual activity with the complainant without her consent. In particular, on the 13th January 2006 he agreed that there had been vigorous sexual activity, which had been entirely with the complainant’s consent. But there had, he said, been difficulties between him and the complainant; and he believed that the complainant had come to the conclusion that she wanted him to leave. The allegations that she had made were intended to achieve that objective. Counsel on his behalf had, in cross-examining the complainant, particularly stressed the fact that she had not made any complaint about a sexual assault when the police came on the evening of the 13th January 2006. Her answer was that she felt that it was very difficult to talk to the police that evening. There were a number of police officers there and the atmosphere was not right. She had felt ashamed of what had happened. It was only when she was talking to the single police officer that she felt able to tell the whole story.
5.	The appellant’s case was heavily dependant on the jury being prepared to entertain doubt about the complainant’s evidence because of her failure to make any complaint on the 13th January. There was very little independent evidence to support either party, although it should be said that the complainant’s son who had come back to the house on the 13th had found the complainant extremely distressed. And the appellant’s account that the complainant was willing to engage in the sort of sexual activity that he described on the 13th January was difficult to square with his evidence that her complaint was based on a determination to get rid of him on the 15th January.
6.	Be that as it may, the appeal is based fairly and squarely on a passage in the summing-up which, it is said, was seriously unfair. The passage needs to be related in full. The judge said:
“Something about rape, ladies and gentleman. Rape is unlike many other criminal offences. It’s quite unlike other types of assault. If somebody came up to you in the pub and accused you of spilling drink on them, and then punched you on the nose, you would have no hesitation, I apprehend in complaining about that and going straight to the police and saying: “that chap just punched me on the nose I want him taken to court and prosecuted and punished.” No difficulty about that. Equally, if your home had been burgled and you knew who it was who had done it, you wouldn’t have any difficulty about ringing the police and complaining about the fact that you’d had your plasma screen television taken and the bedroom was trashed and you want the perpetrator caught and prosecuted. 
But rape is not like those offences. It’s much more complicated both in its effects and how it’s dealt with by victims. For example, it’s a common misunderstanding about forced sex within a relationship that in some way it doesn’t really matter. I’m speaking now of course about the rape of a woman. I appreciate, as you know, that men can be raped, and there are many other types of sexual assault, but in relation to a woman who is raped, a woman may consent to sexual intercourse because she loves and trust her partner. It’s consent to sexual engagement within a loving and tender atmosphere, and it can greatly enrich a relationship, and it’s a joy for life for many people. It means a great deal to a woman that she consents to that sort of relationship. Therefore, when a man forces himself on a woman it’s a massive breach of trust. It becomes for the woman brutal and degrading and humiliating and hugely upsetting, and very often men will misunderstand this, because they will say: Well I’ve had sex with this woman dozens and dozens of times, so why is it so bad on this occasion? It’s the breach of trust. It’s the invasion. It’s the treatment of the woman in this manner of disregard that affects them so greatly.
Very often, women who are raped within relationships feel ashamed of what’s happened. They themselves feel the shame. Although they have nothing to be ashamed about, because they are the victim, that’s the reaction. They feel ashamed of what’s happened. They are often too traumatised or embarrassed to tell anyone what’s going on, and a very serious aspect of the offence in those circumstances is that a woman feels trapped. She is, after all, in her own home, very often simply too ashamed and embarrassed to tell anyone that the person that she has brought into her home to share her life, be with her children, is now raping her. She won’t tell her neighbours, friends… even very close friends…children, still less the police, because of those factors which bring to bear.
So it’s against that background that you may wish to consider the question: why D didn’t complain about being raped when it started. You were asked that question by Mr. Jackson. He made it a significant point in his speech, didn’t he?  He said: ask yourselves, use your commonsense. Why, when all these police are in the house, is she not saying: “Oh, by the way, he’s been raping me for some time now”? Bear in mind how you would feel if you were in her situation about suddenly saying “Oh, by the way, I’ve been raped”. This is where you use your commonsense and your experience of life in determining that question, because it’s frequently said when women don’t complain about rape: “well it’s not true, because if it had been true they would have been straight down to the police station hammering on the door, saying “I’ve been raped”. But you may think it doesn’t work like that particularly if it’s rape by someone you have loved, as D says, still care about, to an extent, in your home, where your children are living.
You say to yourselves: why didn’t she complain? Well, what she said to you was that when the police were in her house there were quite a lot of them. They were joking and wandering about, and she just didn’t feel that she could speak to them. But when P.C. Stephenson came along; you may think what she was saying there was something of a kindred spirit. There was a sympathetic ear here. A young policeman, on his own, and she felt she had to say something. And why? You may conclude it was as a result of the ferocity of that final attack. If what she has told you is true, it was a ferocious rape. She said at one stage she was being smothered and thought that she might not survive. That’s how bad she thought it was. The prosecution say that’s why she looked like she did when she saw Adam in the house, and that’s what made her tell the police what was going on, because in spite of her feelings for Mr JD, and all that happened in the past, she was thinking that enough was enough.
It’s for you to consider those points. If you think I have views about this with which you don’t agree, you are entitled to disregard those views. That is your privilege and prerogative.”
7.	Mr Shaw, on behalf of the appellant, submits that the judge, in this passage, went further than he was entitled to do by way of comment, particularly as he had given no indication prior to his summing-up that he was intending to make these points. The result, it is submitted, is that the summing-up was unbalanced and unfair. His comments, in particular, about forced sex within a relationship were unnecessary and, in the contest of this case, irrelevant in that the appellant’s case was that the sexual activity was entirely consensual. Whilst he accepts that the judge was entitled to make some comment about the circumstances in which the complaint was ultimately made, he failed to balance that with the appellant’s argument that she deliberately manufactured her complaint of rape when she realised there was an opportunity to get rid of the appellant. Mr Shaw submits that on having given, in some detail, reasons why the complainant might not have made a complaint at the first opportunity, he should, at least, have reminded that jury that some women have been known to fabricate allegations of rape for their own purposes.
8.	The Solicitor General, on behalf of the prosecution, submits that the judge was fully entitled to make the comments that he did. Indeed she goes further, and submits that, in cases such as this, the judge should remind the jury of the particular trauma associated with the offence of rape, and the fact that a woman may find it very difficult to pluck up the courage to report the offence. She submits that, just as judges as a matter of course direct juries in the case of historic sexual abuse cases to the effect that children may have great difficulty in being able to make any contemporaneous complaint, judges should do the same where the complaint is an adult, bearing in mind in particular the general understanding now of the effects of rape. She has referred us to s. 294 of the New South Wales Criminal Procedure Act 1986 which provides as follows:
“(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given when a question is asked of a witness that tends to suggest:
(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
     (b) delay by that person in making any such 		complaint.
		     (2)  In circumstances to which this section applies, the judge:	    
(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and 
         (b) must inform the jury that there may be good 	reasons why a victim of a sexual assault may hesitate 	about the assault, and
         (c) must not warn the jury that delay in complaining is 	relevant to the victim’s credibility unless there is 	sufficient evidence to justify such a warning.”
9.	The Solicitor General has also referred us to material which is made available to judges and recorders at the Judicial Studies Board seminars on trials in serious sexual cases. These include material relating to the psychological effects of serious sexual assaults collated by Dr Fiona Mason, and the script of the lecture given to the participants by His Honour Judge Peter Rook QC in May of this year. The latter included the following suggested comment in cases where the issue of delay in, or absence of, reporting of the alleged assault is raised by a defendant as casting doubt on the credibility of the complainant:
“Experience shows that people react differently to the trauma of a serious sexual assault. There is no one classic response. The defence say the reason that the complainant did not report this until her boyfriend returned from Dubai ten days after the incident is because she has made up a false story. That is a matter for you. You may think that some people may complain immediately to the first person they see, whilst others may feel shame and shock and not complain for some time. A late complaint does not necessarily mean it is a false complaint. That is a matter for you.”
10.	The Solicitor General therefore submits that the judge, albeit doing so in more extensive and emphatic terms, was merely underlining to the jury by way of comment a matter which was clearly relevant to their considerations. He did not, she submits, go beyond that which was permissible.
11.	In our view, there is merit in the submissions from both parties. The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. This was the reasoning behind the directions suggested in Turnbull in relation to identification, and Lucas in relation to the treatment of lies. We think that cases where a defendant raises the issue of delay as undermining the credibility of a complainant fall into a similar category save clearly that the need for comment is in this instance to ensure fairness to the complainant. But any comment must be uncontroversial. It is no part of the judge’s task to put before the jury Dr Mason’s learning without her having been called as a witness. However, the fact that the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape is sufficiently well known to justify a comment to that effect. The suggested direction in paragraph 9 above provides an example in very general terms of an appropriate form of directions which should be tailored to the facts of the case. In the present case, the judge was entitled to add to that general comment, the particular feelings of shame and embarrassment which may arise when the allegation is of sexual assault by a partner. He was also entitled to remind the jury of the way in which the complaint in fact emerged, as explained by the complainant herself.
12.	 But the judge went too far. The passage we have cited reads like the prosecution closing speech. There was no need for him to emphasise in such detail the effects of rape, particularly within a relationship. The points which he wished to make, and which we have said he was perfectly entitled to make, were capable of being made in a more measured way. But above all, he should have set out more fully and fairly the appellant’s submissions as to the conclusion that the jury should reach from the delay in making the complaint.
13.	We therefore agree with the submission on behalf of the appellant that the judge went further than he should, at least in the absence of any balancing remarks as to the appellant’s case. However, we have to determine whether or not the jury’s verdicts were safe. We have read the whole of the evidence given by the complainant and considered the account given by the appellant. The judge fully and fairly put the defence case in every other respect to the jury. The appellant really had no answer to the point that his case depended on the jury accepting that the complainant may have been willing to engage in, indeed was encouraging, sexual activity whilst simultaneously wanting to get rid of him. Although not an impossible scenario, it was so unlikely that the jury must have rejected it. We are satisfied that these verdicts are safe.