Neutral Citation Number: [2010] EWCA Crim 2913
Case No. 2010/06160/A4

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

Date: Tuesday 23 November 2010

B e f o r e:

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

MR  JUSTICE  CALVERT-SMITH

and

MR  JUSTICE  GRIFFITH  WILLIAMS

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R E G I N A

- v -

REBECCA  JAYNE  A
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Mr G Hennell appeared on behalf of the Applicant

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J U D G M E N T

THE LORD CHIEF JUSTICE:  
1.  On 15 October 2010 A, now the appellant, faced two indictments at Mold Crown Court both of which alleged that she had perverted the course of public justice.  Although the Statement of Offence alleged in each indictment was identical, the Particulars of Offence were mutually contradictory.  The first indictment alleged that she had made and pursued false allegations of rape against her husband.  The second indictment alleged that she had made and pursued a false retraction of these allegations.  She pleaded not guilty to the first indictment and guilty to the second.  The Crown offered no evidence on the first indictment.  She was therefore acquitted by order of the judge and a not guilty verdict was entered.  The case was adjourned for sentence and restored to the list on 5 November.  

2.  On that date the appellant's sentence had to be assessed on the basis that she had perverted the course of justice by falsely retracting a truthful allegation that her husband had indeed raped her.  After making allowance for her guilty plea, His Honour Judge Rogers QC imposed a sentence of eight months' imprisonment.  

3.  This is her appeal against that sentence.  She would no doubt wish to record her thanks to Mr Hennell for his efforts in bringing this case to the attention of the court as quickly as possible.  We should record that the papers arrived in the office of the Registrar of Criminal Appeals on Thursday of last week and we are grateful to those working for the Registrar for ensuring that this case was given the expedition that it required. 

4.  The facts are complicated, although the narrative account which we will take from the prosecution opening at Mold Crown Court will put it into a clear context.  The appellant was born in May 1982.  She is now 28 and a woman of effective previous good character.  She had lived with her husband for nine years and they had married after they had been together for about four years.  They have four young children now aged eight, seven, three and two years.  On the appellant's account -- and we emphasise that we have not heard her husband's account -- she was subjected to violent abuse and became very fearful of him. 
	
5.  At about 1am on 28 November 2009 the appellant made a 999 call to Dyfed Powys Police Station reporting that she had been raped by her husband.  At the time she was clearly in an extremely distressed state.  Police officers attended and she was relocated to a women's refuge while a search was carried out for her husband. 
 
6.  On the following day she was examined by a forensic medical examiner and also video-interviewed.  During the course of the interview she gave an account that on three occasions over the previous month she had been raped by her husband.  Later that same day her husband was arrested and charged with six counts of rape ranging from anal to vaginal and oral rape.  He was brought before the court on the following day and remanded into custody before a preliminary hearing on 10 December 2009 at Mold Crown Court.  At the preliminary hearing he was granted conditional bail. 

7.  Matters then occurred where he was in breach of his bail and he was remanded into custody, and then re-released. 

8.  The situation then changed.  On 7 January 2010 the appellant contacted the police.  She was interviewed at her request.  She informed the police that she wanted to withdraw her complaint against her husband.  Nevertheless when interviewed, although she wished to withdraw the complaint, she continued to assert that the allegations she had made against him were true.  

9.  A conference was arranged on 14 January between the police, the Crown Prosecution Service, and prosecuting counsel.  It was decided, bearing in mind that in the course of her interview the appellant had maintained that her allegations were true and notwithstanding her wish that the case should be withdrawn, that it should proceed.  That decision was communicated to the appellant. 

10.  On 18 January a plea and case management hearing took place in the case of the Queen against her husband.  He entered not guilty pleas.  A trial was fixed for May.  The appellant was granted special measures in the usual way.  On that day, as arranged, she met with those responsible for the prosecution.  During the course of the meeting she told them that she had met her husband over the Christmas period and that they had had consensual sexual intercourse.  Obviously that would be a source of concern to the prosecution.  

11.  On 7 February the detective officer responsible for the investigation spoke to the appellant on the telephone for about fifteen minutes.  The appellant said to her, "That's it, it's all over.  What's going to happen now if I say I made it all up, I've lied about the rape?"  The officer was sceptical about this further retraction and treated it with appropriate scepticism.  Eventually the appellant was told that the case against her husband would proceed.   
12.  Four days later, on 11 February, the appellant went to the police station and told the officers responsible for the case that the allegations of rape were untrue.  In those circumstances they were left with no option other than to arrest and caution her.  In due she provided a written witness statement in which she asserted that the allegations of rape she had made were false.  

13.  The officers continued to test the retraction as much as possible, but however they tested it, on this occasion the appellant maintained it.  So it was that on the following day, 12 February, when her husband appeared before the Crown Court at Mold, the Crown decided, and in reality they had no option, that no evidence should be offered against him on the six counts of rape.  Accordingly, not guilty verdicts were entered.  That was the end of the case against him.

14.  On 16 April the appellant was arrested and interviewed under caution about her witness statement.  She continued to assert that the allegations of rape that she had made were false.  Accordingly, she was charged with an allegation of perverting the course of justice, at that stage on the basis that she had made a false complaint.  

15.  The case came on at Mold Crown Court.  At that stage the appellant attended and had a discussion with her counsel.  It is not appropriate for us to indicate the terms of the confidential discussion between the appellant and her counsel.  It is sufficient to indicate (because this is a matter of public record) that her assertion was that she had, in fact, been raped and that it was the retraction, rather than the allegation of rape, that was false.  She then telephoned the police and confirmed the truth of the allegation of rape.  

16.  Further discussions took place between the police, the Crown Prosecution Service and counsel, and it was decided that there should be a further interview, which took place at the end of the month.  The appellant was questioned about the false retraction.  She fully admitted that she had perverted the course of justice by providing a false retraction.  She gave an explanation of how this had come about.  She said that she had received a visit from her husband's sister who told her to say that she had lied and that if she did, she would receive a suspended sentence because the children were living with her.  She felt under pressure.  During the time when her husband had been on bail and had been seeing the children, she had also felt under pressure.  She had been given to understand that if her husband had been convicted the sentence on him would be something in the order of ten years' imprisonment.  

17.  The appellant explained her position to the author of the pre-sentence report.  She said that, following the arrest of her husband and his remand in custody, she had felt an immense sense of guilt.  She believed that simply by the instigation of proceedings to divorce her husband would be sufficient for her own purposes, and so she decided to withdraw her complaint.  When her husband was released on bail he contacted her.  She said that she was in an emotional and very confused state at the time.  She told the author of the report that she had suffered from years of domestic abuse and was very fearful of her husband but, wanting to give her children a family Christmas at which their father was present, she continued to communicate with him.  This created an immense pressure on her.  Her husband sought to persuade her to retract her original statement and so, due to fear of repercussions from him, she had agreed. 

18.  Those were the facts as presented to the judge at the Crown Court.  We have studied his sentencing remarks.  The judge was understandably concerned about how to approach the question of whether the appellant was or was not a victim of rape in the light of the fact that her husband had never been convicted of raping her and therefore as a matter of law is presumed to be innocent of any such offence.  We acknowledge that concern.  Nevertheless, for the purposes of sentencing the appellant, that question was resolved by the acceptance by the Crown that her criminality extended to a false retraction of the complaint of rape.  In other words, she had retracted a truthful allegation that she had been raped by her husband.

19.  It is worth emphasising that a complaint that an individual has been the victim of crime is not, and never has been, merely a private matter between the complainant and the alleged perpetrator of the crime.  Every crime engages the community at large.  There is a distinct public interest in the investigation and, if appropriate, the prosecution and conviction of those who have committed crime.  Precisely the same considerations apply to every witness to a crime.  An unconvicted criminal is free to continue to commit crime and to add to the list of his victims, as well as to escape justice.  Therefore, perverting the course of justice is not confined to making and pursuing false allegations or giving false evidence, which is always a very serious offence.  It extends to the retraction of truthful allegations or the retraction of truthful evidence.  These offences, too, can sometimes be, and should be treated as, offences of great seriousness.  

20.  All that said, the difference between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked.  Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it.

21.  Where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions reflect, and are often meant to reflect, manifestations of dominance, power and control over her.  When these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable.  

22.  Of course it is better for a truthful complaint to be pursued, but if the proposal that it should be withdrawn is not accepted, leading to a positive retraction and admission that the original truthful complaint was untrue, and the complainant is then prosecuted to conviction, the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised.

23.  This is an exceptional case.  We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court.  The sentence for perverting the course of justice normally is, and will normally continue to be, a custodial sentence.  That is a requirement of the administration of justice and, where possible, the reduction of crime.  But this was not such a case.  We have come to the conclusion that the appropriate sentence in this case  is a community sentence with a supervision order for a period of two years.

24.  The appellant will now be entitled immediately to be released.  We add that we are extremely concerned about the situation that will face her when she returns back to her home.  That provides not the slightest basis for keeping her in custody and it would be quite wrong to do so.  We understand that she intends to go to live with her sister and that she will take such proceedings as are necessary and appropriate in the family courts in order to ensure that the arrangements for her four children are the best that can possibly be devised.  That litigation should be started as soon as practicable.  The court should give every expedition that it can to resolving this extremely difficult and convoluted case to the best advantage of the children. 

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