Neutral Citation Number: [2008] EWCA Crim 2859
No. 2008/02030/B3

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
								Royal Courts of Justice
								The Strand
								London
								WC2A 2LL

								Date: Wednesday 19 November 2008

	B e f o r e:

	THE LORD CHIEF JUSTICE OF ENGLAND AND WALES 
	(Lord Judge)

	MRS  JUSTICE  RAFFERTY  DBE
	
	and

	MR  JUSTICE  DOBBS  DBE

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	R E G I N A
 
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	Mr T Cray appeared on behalf of the Appellant

	Miss N Chbat appeared on behalf of the Crown
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	J U D G M E N T

THE LORD CHIEF JUSTICE:  
1.  In early 2008 the appellant faced trial on a 20 count indictment.  Counts 1-7 of that indictment reflected indecent sexual activity with LB.  Four counts alleged indecent assault (counts 1, 2, 4 and 6) and three counts alleged rape (counts 3, 5 and 7).  The remaining counts on the indictment alleged unlawful sexual activity with SB (LB's sister).  Following the trial before Her Honour Judge Smith and a jury, on 4 March 2008 the appellant was convicted by a majority verdict of 11:1 of the four counts of indecent assault.  He was acquitted of the rape alleged in count 7.  The jury was unable to reach verdicts on the two counts of rape in counts 3 and 5.  The jury was also unable to reach any verdicts in relation to the allegations involving SB. 

2.  The counts involving SB are due to be retried in January 2009.  In relation to the case involving LB, if the convictions on counts 1, 2, 4 and 6 in relation to her are sustained following this appeal, then the prosecution would not seek a further trial of the two counts of rape on which the jury were unable to agree.  If, however, the convictions are quashed, there will be a retrial of the four counts of indecent assault and the two counts of rape on which verdicts were not reached.

3.  The appellant appeals against conviction by leave of the single judge.

4.  The issue is the decision of the judge to circumscribe the cross-examination of LB about her sexual history on the basis of the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999.  On analysis, however, although those provisions arise for consideration, they are not in the end determinative.

5.  At trial the defence applied for leave to cross-examine LB first of all on the basis of medical records disclosed by the Crown about a "pregnancy scare".  There is no doubt, in circumstances to which we shall come, that LB became pregnant.  She went to see a doctor about her pregnancy, but apparently she then miscarried.  There was also an application to cross-examine her about whether or not she had made assertions of sexual activity with other people.  That matter is of little assistance in determining this appeal.

6.  The appellant was in a relationship with the mother of LB and SB.  He lived with them in the family home.  Social Services first became involved in March 2001 following a referral by a teacher at LB's secondary school, she having heard LB make sexual allegations against the appellant.  However, when Social Services visited the family home address, although LB confirmed that there had been some inappropriate touching, she refused to make any further allegations. 

7.  Later, in May 2002, an anonymous referral was made to the Social Services about the drink problem of LB and SB's mother and some concerns were expressed about the fact that the appellant had been in the bathroom with SB.  There were also complaints of domestic violence.  Following visits by Social Services, neither LB nor SB made any further allegations. 

8.  In December 2003 LB visited her general practitioner and stated that she had taken a positive pregnancy test.  We shall return to the precise details later in the judgment.  It is an important element of the appeal.

9.  In November 2005 LB told her uncle that she had been sexually abused by the appellant.  In a further conversation shortly afterwards, she told him that she would run away if he told anyone.  However, by January 2006 she had been persuaded by her uncle to tell her mother about the allegations.  The details of the eventual emergence of the allegations by SB do not require any attention in the course of this judgment.  We shall confine ourselves to the case involving LB.

10.  The prosecution case was that the appellant had indecently assaulted LB on numerous occasions and that he had raped her on about three or four occasions, when sexual intercourse took place without her consent.  There were no occasions when sexual intercourse took place with her actual or apparent consent.  The allegations involving LB were said to have occurred between 2000 and 2004 when she was aged between about 12 and 16. 

11.  The defence case was that nothing inappropriate had ever taken place.  The allegations were untruthful.  They were invented because the appellant had replaced the girls' natural father in their home.  It was drawn to the jury's attention that LB had had a very troubled time while she was growing up.  There was a great deal of material to this effect.  We shall not recite all the matters of potential concern to which LB's behaviour had given rise, but it is right to record that they formed an important basis for the submission made on behalf of the appellant at trial that there were very good reasons to entertain serious doubts about LB's credibility.

12.  The issue for the jury was stark: had the indecent assaults and rapes taken place?

13.  LB's account of a number of incidents typifies the whole story.  In relation to count 1 she said that when she was about 12 (but not yet 13) after she had gone to bed the appellant would come into her room and switch off her television.  He would then sit on the bed and start to touch her.  He would touch her breasts and her thigh.  This started to happen frequently.  He stroked the top of her leg and "around the top of her legs".  After her fourteenth birthday the touching became more determined.  After a couple of months, following a move into a new address where she had put a lock on her bedroom door to prevent the appellant from entering her room, he ripped the lock off and told her that as she did not pay rent, she did not need a lock.

14.  Count 2 related to incidents which involved the appellant walking into the bathroom while she was taking a bath or a shower.  Her protests were met with the response: "No, it's all right, I've seen it all before".  He touched her more and more often "in other ways". Eventually the appellant began digitally to penetrate her vagina and to masturbate over her.  He told her to make sure she did not tell anyone.

15.  Count 3 was the first occasion of alleged sexual intercourse.  LB was half asleep in bed.  Her mother was asleep downstairs.  The appellant entered LB's bedroom.  He told her to be quiet so that her mother would not be woken.  He removed her bed covers and her knickers.  He digitally penetrated her.  When she asked him to stop, he told her not to worry and that it would not take long.  He then raped her.  She tried to push him off her, but he was too heavy.  He stopped and walked away, warning her not to tell anyone.  He ejaculated before leaving her.  She went into the bathroom to wash.  By now she was nearly 15.

16.  It is unnecessary to provide any further details of the allegations.  However, we must come in some detail to one particular matter.  It relates to an allegation which eventually became count 7 in the indictment.  It was based on the complainant's witness statement dated 8 February 2006.  The statement reads:

		"I remember it was May 2003.  My mum was in hospital and [SB] was in bed and I was asleep.  When I woke up F was on top of me.  I tried to push him off and said, 'How can you think of doing that when my mum's in hospital?'  He just got back on and carried on and had sexual intercourse with me and said, 'You love that, don't you?  You're a dirty cow.'  This carried on for about 15 minutes until he ejaculated inside me.  He did not use any contraception and this was one of the times that I had a pregnancy scare.  I have in total had two pregnancy scares where I went and got home pregnancy tests to have a look as I had not had my periods, as my periods are regular."

She then referred to a friend to whom she spoke, and she continued:

		"The second time I remember I actually went to my doctor's surgery at the Sandhurst Group Practice as the second time the pregnancy test came back positive and they referred me to the clinic for a termination, but I did the test again after a few weeks and I wasn't pregnant.  I was not sexually active with anyone else at the time."

(The implication there is plainly "sexually active with anyone else at the time" when she became pregnant.)

		"When I was 16 or 17 years old I had my first boyfriend.  After a couple of months I had my first boyfriend ...., after a couple of months I told him that I was sexually abused because I was really shy and would not do anything sexual with him as I felt dirty.  I also told my second boyfriend .... in a hope to get help to put a stop to it as it was still happening ...."

17.  In her evidence LB said that the last occasion of sexual intercourse (to which, as we understand it, she was referring in her statement) occurred when her mother was in hospital.  There is incontrovertible evidence that the mother was in hospital for treatment for cancer not during May 2003 but in May 2004.  There was therefore some discrepancy between the dates which was of significance because the visit to the doctor in relation to her pregnancy was in December 2003.

18.  The account in the statement and the evidence of LB at trial was therefore that the appellant had had sexual intercourse with her; that no contraceptive was used; that he ejaculated inside her; that she had become pregnant; and that she had not been sexually active with anyone else at this time.

19.  The relevant medical notes recorded, however, that LB had attributed her pregnancy to a "condom accident" with her boyfriend.  The complainant's history of seeking advice on contraception, as disclosed to the doctors at the Sandhurst Group Practice, showed that LB had only consulted her GP about a pregnancy scare in December 2003, and the doctor prescribed her oral contraception in February 2004.

20.  Some, but not all, of that information was before the jury as a result of the judge's ruling.  The judge allowed a small degree of cross-examination about this material in relation to the timing of the consultation regarding the pregnancy scare.  That was relevant to the date when the allegation charged in count 7 had occurred: May 2003 or May 2004.  It was linked to the resolution of the time when LB's mother was in hospital.  Questions, however, about what was recorded that the complainant had told her doctor about sexual activity with her boyfriend and the fact that she was prescribed oral contraceptives in February 2004 were excluded.  Our concern is with these omissions from the jury's consideration.  In essence the argument on appeal is that the judge's restrictive order was wrong as a matter of law.

21.  We need spend no further time dealing with the issue of what LB was reported to have said by one of her boyfriends or other matters relating to possible sexual activity, and what she may have said to others, and whether what she may have said to others was true or not.  
22.  Without setting out all the matters of fact in detail, the consequences of the judge's decision can be readily explained.  The evidence that LB had become pregnant or had a pregnancy scare will undoubtedly have confirmed beyond question that she had indeed had sexual intercourse with someone (or that someone had had sexual intercourse with her).  If her assertion had been recorded when she visited the doctor that it was the appellant who had been responsible for her pregnancy, we suspect that that assertion would have been admissible.  Yet when she asserted that somebody else was, on the basis of the judge's ruling it was not admissible.  The reality, however, is that the basis of her statement and on her evidence there was no other candidate for her pregnancy.  The prosecution case was therefore reinforced.  On her account to her doctor, the position was plainly different.  In the context of this case the difference mattered very greatly.

23.  It is true that if this evidence had been admitted and Mr Cray had proceeded to cross-examine within the appropriate limits permissible to counsel, LB may have come up with all sorts of answers about why the doctor's notes recorded her account of something going wrong with the contraceptive arrangements with her boyfriend.  She may have said, for example, that she blamed her boyfriend because she was too frightened or ashamed or embarrassed to blame the man who was her mother's partner.  As it is, however, we do not know what she would have said.  In our judgment this evidence went to, but no further than to rebut the evidence adduced by the prosecution in the case against the appellant.  In the circumstances, under section 41(5) of the 1999 Act, it would have been permissible for this evidence to be admitted.  Its non-admission, were the appellant convicted, would have meant that convictions in relation to rape would have been unsafe.

24.  Here, however, there were no convictions in relation to rape.  In the light of persuasive and determined submissions by Mr Cray, for which we are grateful, we have examined carefully the impact on the convictions relating to indecent assault.  On one view the answer is simple: the jury were properly directed, and they plainly followed the directions, to consider each count separately.  As a body they were in doubt about one rape and as a body they were unable to agree on the other two.  There was, in fact, ample material which would have entitled them to have entertained some reservations about the complainant's evidence in relation to indecent assault.  Having examined all that material, in the light of a careful summing-up, they no doubt addressed those reservations, and were unable to agree in relation to the rape counts but felt confident that it was safe to convict of indecent assault.

25.  In our judgment there is no doubt that the unwholesome sexual activities alleged by LB against the appellant, whether they amounted to indecent assault or eventually culminated in occasions of non-consensual sexual intercourse, were all utterly and totally entwined.  Of itself that would not necessarily create any problems with the safety of the verdicts.  But, having examined all of the evidence in this case in the light of its specific facts, we are left in this state of mind.  We do not, and cannot, know (and because of all the circumstances we are troubled that we cannot know) the likely impact on the jury's deliberations if the full evidence relating to LB's pregnancy had been deployed and properly explored in evidence before them.  It might have made no difference.  But we are unable to exclude the realistic possibility that where, for example, the jury were unable to agree on the two rape counts, they may have acquitted the appellant.  If they had acquitted of all the suggested occasions when sexual intercourse was alleged to have taken place, they would then have had to reflect on the impact of their findings about sexual intercourse on the complainant's credibility in relation to the indecent assaults which on her account were taking place at the same time that sexual intercourse took place.  None of that means that the jury would have acquitted.  However, we cannot be sure that in those circumstances they would have convicted of indecent assault.  Our decision in this appeal is fact-specific.  We have been left with doubts about the safety of the convictions of indecent assault returned by a jury which did not have all of the available admissible relevant material.

26.  In those circumstances the convictions on counts 1, 2, 4 and 6 will be quashed.  We shall order a retrial of those counts.  Those counts will be joined in a retrial of the two counts of rape where the jury was unable to agree.  The necessary procedural steps will have to be taken by the Crown to ensure that that trial can take place at the same time as the forthcoming retrial of the allegations made by SB.  Whether or not in the end the judge will sever those counts is a matter entirely for his or her judicial judgment.

27.  The appeal will be allowed on counts 1, 2, 4 and 6 (indecent assault).  The convictions on those counts will be quashed.  There will be a retrial of those offences on a fresh indictment which must be preferred within 14 days.  The appellant will be arraigned on that fresh indictment within one month so as to enable any necessary case management decisions to be made so that this case can catch up with the trial that is due to start on 5 January.

28.  MR CRAY:  My Lord, given the timetable and the fact that we are likely to have a fairly early hearing at Reading, can I invite the court to consider an ancillary order under section 8(2) that the defendant is released on bail pending the retrial?  He has been on bail throughout.  As the court will see, he is a man of good character.  Bail was only withdrawn because of the convictions.  His liberty is a matter of primary importance and I would invite the court, in the circumstances of quashing the conviction, to make an order for his release on bail.  As far as conditions are concerned, his mother has been in court throughout.  He can go and live with her --

29.  THE LORD CHIEF JUSTICE:  Just pause for a moment.  Subject to anything we hear from the Crown, you are asking for bail on the same terms as before conviction?

30.  MR CRAY:  Yes.

31.  THE LORD CHIEF JUSTICE:  Which include a specified address?

32.  MR CRAY:  Yes.

33.  THE LORD CHIEF JUSTICE:  No contact with either LB or SB?

34.  MR CRAY:  Exactly so.

35.  THE LORD CHIEF JUSTICE:  Let us hear the Crown on that.

36.  MISS CHBAT:  I am content with those conditions.

37.  THE LORD CHIEF JUSTICE:  Yes, your client will be released on bail on precisely the same terms as obtained before his conviction.

38.  MR CRAY:  I am very grateful, my Lord.

39.  THE LORD CHIEF JUSTICE:  Can the Crown be sure that they will be able to catch up with the timetable so as to enable an appropriate directions hearing to take place before Christmas?

40.  MISS CHBAT:  We very much hope that we will be able to, yes.  It was canvassed in my earlier conversations about timetabling should various matters go my way.  The hope, of course, is that we can achieve a collective trial date which we currently have assigned for 5 January next year.

41.  THE LORD CHIEF JUSTICE:  Very well.  If I do not have the power to direct it, I make it plain that there should be a directions hearing before a judge at Reading Crown Court this side of Christmas so that he or she can be fully informed of the decision of the court.  The consequences and decisions that will follow from it will be whatever the judge thinks appropriate.

42.  MISS CHBAT:  Thank you.

43.  THE LORD CHIEF JUSTICE:  Thank you.  Mr Cray, you presumably have a representation order for the retrial, but just in case there is any doubt about it, the order  will extend to cover the counts which have been quashed and the other two counts relating to LB.

44.  MR CRAY:  Thank you, my Lord.

45.  THE LORD CHIEF JUSTICE:  Thank you very much, Mr Cray.

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