Case No: 201101906
Neutral Citation Number: [2011] EWCA Crim 2168 
IN THE COURT OF APPEAL CRIMINAL DIVISION
On appeal from Wood Green Crown Court
(HH Judge Sheridan)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/09/2011

Before :

LORD JUSTICE PITCHFORD, MR JUSTICE TUGENDHAT, AND MR JUSTICE GRIFFITH WILLIAMS
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Between :

	DONOVAN FARQUHARSON	Appellant	
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	REGINA	Respondent	

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(Transcript of the Handed Down Judgment of
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R Doman (instructed by Elliott Stern - Solicitors) for the Appellant
J Whitby (instructed by CPS Special Crime Division) for the Respondent

Hearing date: 31 August 2011
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Judgment

Lord Justice Pitchford : 

1.	This is an appeal against conviction upon count 2 of the indictment described below, brought with the leave of the single judge. At the conclusion of the hearing on 31 August 2011 we indicated our intention to allow the appeal. These are our reasons. The complainant is entitled to maintain her anonymity. For this reason we shall refer to her as CS. On 28 February 2011 the appellant faced trial at Wood Green Crown Court before HHJ Sheridan upon an indictment containing 3 counts alleging that:
Count 1:	On 4 August 2010 he attempted to rape CS. 
Count 2:	On 11 August 2010 he sexually assaulted CS, and
Count 3:	Between 4 August 2010 and 1 October 2010 he put CS in fear that violence would be used against her contrary to section 4 Protection from Harassment Act 1997.
2.	On 7 March 2011 the jury returned verdicts of not guilty on count 1 and guilty upon counts 2 and 3. This appeal is directed solely at the conviction upon count 2.
3.	In short the evidence given by the complainant at trial was that her relationship with the appellant had turned sour because of his controlling behaviour. She ended the relationship. However, they met at the appellant’s home on 4 August 2010. The appellant started to interrogate CS about her relationship with a male friend. She decided to leave. Her evidence was that the appellant pushed her on to his bed and attempted to have sexual intercourse without her consent. During the following week the appellant bombarded CS with telephone calls and text messages. On 11 August CS returned to collect her belongings. Her evidence was that the appellant apologised. However, when she was leaving and gave him a goodbye hug the appellant sexually assaulted her by placing his hand down her trousers and touching her vaginal area. This was the evidence which supported the conviction upon Count 2.
4.	An agreed schedule of calls and text messages supported the complainant’s evidence upon Count 3. The appellant’s behaviour culminated in an incident when he entered the back garden of the complainant’s family home, climbed a ladder to her bedroom window and tapped the window to gain her attention.
5.	The appellant at his trial denied the allegations of sexual assault and attempted rape. However, in the course of his evidence the appellant made factual concessions which were tantamount to an admission of harassment of the complainant, which he knew or ought to have known would cause CS to fear the use of violence against her, contrary to section 4. It is for this reason that there is no challenge to the appellant’s conviction upon Count 3.
6.	The appellant’s antecedents revealed convictions for criminal damage in 2004, harassment of XT, putting her in fear of violence, contrary to section 4 Protection from Harassment Act 1997 in 2009, and breach of a restraining order protecting XT in 2010. The trial judge permitted evidence of these convictions to be adduced before the jury as relevant to his propensity to commit acts of harassment against former girlfriends. Since there is no challenge to the conviction upon Count 3 it is unnecessary further to consider the details of those convictions. However, it emerged upon further enquiry made on behalf of the appellant that the appellant had not previously been convicted of harassment contrary to section 4 of 1997 Act but of harassment contrary to section 2, a charge to which he had pleaded guilty. In the course of the evidence given by the officer in the case Ms Whitby, counsel for the prosecution, was handed a number of witness statements made by XT dated respectively 26 November 2006, 17 December 2006, 1 March 2009, 9 March 2009 and 10 March 2009. In those witness statements Ms XT alleged a course of conduct by this appellant towards her, commencing on Christmas Eve 2005. The overwhelming thrust of the evidence was of threatening, intimidating and harassing conduct. Ms XT also alleged in her statement of 17 December 2006 that on one occasion during the Christmas period of 2005 the appellant had forced her onto a sofa where he attempted to initiate sexual intercourse against her wishes. Her allegation included details of sexual touching. It was alleged that the appellant set fire to Ms XT’s car and sent threatening, abusive or insulting text messages to her. Similar threats, abuse, damage and harassment were alleged to have taken place in January and February 2006, November 2006, February 2009 and March 2009. 
7.	XT’s complaints culminated in the appellant’s appearance before the magistrates court when the prosecution agreed to accept a single plea of guilty to a charge under section 2 Protection from Harassment Act 1997. The charge embraced and was limited to conduct which occurred in February and March 2009 (sending threatening, abusive or insulting text messages and making harassing telephone calls to Ms XT while she was at work). There was no charge of sexual impropriety towards Ms XT. Upon receipt of the witness statements, however, Ms Whitby sought to adduce the evidence of all XT’s complaints notwithstanding the absence of any further conviction. Ms Whitby contended that the allegation of sexual assault was relevant to the issue whether CS was telling the truth about the allegations of attempted rape and sexual assault upon her, and the appellant’s propensity to commit the offences charged in counts 1 and 2 of the indictment. Furthermore, in his interview under caution the appellant had challenged the police to make enquiries of his former girlfriend. She would confirm that he had never committed an act of sexual misbehaviour. That interview was before the jury. Ms Whitby contended that the appellant had created an impression of himself which Ms XT would contradict. 
8.	Ms Whitby also sought to adduce the history of alleged harassment of Ms XT in order to demonstrate that, notwithstanding the plea accepted by the prosecution, the appellant had in fact been guilty of harassment contrary to section 4 of the Act. His conduct, it was asserted, was sufficiently similar to demonstrate a relevant propensity. If Ms XT was a witness independent of CS the fact that she made similar but unrelated complaints would assist the jury in judging the truth of CS’s account of harassment. Ms Whitby argued that the defendant’s case amounted to an attack on the character of CS. Accordingly, his previous misconduct, including conduct not the subject of a previous conviction was admissible to demonstrate the character of the person making that attack.
9.	Thus, the prosecution asserted that Ms XT’s evidence was admissible through the gateways provided by section 101(1)(d), (f) and (g) Criminal Justice Act 2003.
10.	Mr Doman resisted the application to adduce this evidence for a number of reasons. In the circumstances we need not deal with each of them. First, both counsel were taken by surprise by the late availability of the evidence of Ms XT. Mr Doman had limited opportunity to obtain instructions in respect of a prolonged course of conduct. Most of the alleged misconduct was denied. An examination of the details would create satellite issues in the trial which would affect its fairness. Mr Doman was provided by the trial judge with an extended lunch hour period of some 1½ hours within which to take instructions. At the resumption of the evidence, XT was examined in chief from her witness statements and cross-examination comprised in large measure a simple challenge to the truth of her evidence. Second, Mr Doman contended, the allegation of sexual impropriety made by Ms XT was not made until a year after the event. Not only was the allegation unreliable but the appellant had probably suffered a significant disadvantage in attempting to answer it. Third, at the time when the summary of the interview under caution was placed before the jury neither counsel was aware of the existence of Ms XT’s witness statements. Had the defence been aware that Ms XT would contradict the appellant’s assertion that he had never acted with sexual impropriety it was almost certain the judge would have permitted the summary to be edited in order to remove the impression the appellant’s assertion had created. By that means the appellant could have avoided the risk of prejudice created by the admission of the disputed evidence.
11.	Mr Doman’s principal complaint is that the trial judge should not have admitted this evidence; in the alternative, having admitted the evidence it is argued that the judge failed adequately to explain to the jury how they should approach the issues which arose from it. While we have some anxieties about the admission of a single and hotly disputed allegation of sexual impropriety committed some 5 years before, in the circumstances we propose to confine our examination of the safety of the verdict upon count 2 to Mr Doman’s submissions as to the learned judge’s directions to the jury. 
12.	Mr Doman submitted there was an important difference in kind between the allegation of sexual assault and the separate allegations of harassment. The former comprised a single event which had taken place several years previously; the course of harassment alleged by Ms XT had been pursued until March 2009. The appellant denied any sexual misconduct towards XT; he admitted that he had harassed her. XT had made no complaint about the appellant’s sexual behaviour until 12 months after the alleged incident occurred. There was a considerable delay in the prosecution which did take place and it was not until March 2009 that the prosecution accepted his plea of guilty to the charge of harassment contrary to section 2. The delay was such that in Mr Doman’s submission the jury required specific directions about the prejudice which may have been occasioned by his inability to defend the allegation of sexual assault. He had not been charged with such an offence and it formed no part of the allegation of harassment. Mr Doman submitted that the jury should have received separate and specific directions explaining what relevance, if any, the allegation of sexual misconduct made by XT had to the allegation of sexual misbehaviour alleged by CS. The judge’s directions on bad character tended to make no distinction and may have caused the jury to place too much weight upon Ms XT’s allegation of sexual assault.
13.	At page 13 of the transcript of his summing up the judge explained the presence of XT at trial as follows:
“You now know why she was here, because the original complaint that you were to hear about, by way of a plea of guilty, was wrongly put before you, because the Crown Prosecution took a plea to a lesser offence … and because it is in dispute it would not be right for me as the judge to sit here knowing it is in dispute and that the witness or the conviction was put on the basis that turns out not to be right...
I will give you a specific direction about convictions...She was here because the Crown Prosecution Service, at least in part it appears, accepted a plea...to a lesser offence in a lower court that did not reflect all the matters that she was complaining about. I say that because you know that as a fact, because you have the dates of the statements. She told you she had counselling to put all what had gone on to the back of her mind...So, whether the Crown Prosecution Service have sold their duty to the victim...If they sold her short, they sold her short. Don’t sell this witness short...You have got her evidence. You assess all of her evidence. The guilty plea is part of it but it is only part of it..”
14.	Mr Doman argues that the emphasis placed by the judge upon the possibility that the witness had been let down by the Crown Prosecution Service was inappropriate, particularly as it was accompanied by an exhortation not to let the witness down. The jury ought not to have understood that they were engaged in an exercise of judging whether the appellant should have been charged with an additional sexual offence. On the contrary, the jury should have received a reminder that the evidence was denied by the appellant and had never formed the basis of a criminal charge against him notwithstanding that the police and CPS had been in possession of the witness’s statement since late December 2006. 
15.	At pages 24-28 the judge directed the jury that they could place the evidence of CS and XT side by side in order to consider whether or not there was a degree of similarity which assisted them to a conclusion whether CS was telling the truth. The learned judge appears to have been directing his remarks towards the allegations of harassment; he gave no separate consideration in this context to the allegation of sexual assault made by XT. The judge did invite the jury to consider the degree of similarity between the allegations made by the two women but what was required in respect of counts 1 and 2 was a specific concentration upon any relevant similarity between the sexual allegations respectively made. 
16.	At page 28 the judge invited the jury to consider whether:
“There is a tendency to behave in the way that CS complains about and Tina speaks about.”
If there was, the judge directed the jury, it provided additional evidence pointing to guilt in relation to the allegations made by CS. Again, the judge did not inform the jury whether he was referring to the allegations of harassment or of sexual assault. His direction was given in the context of allegations of harassment.
17.	At pages 29-31 the judge gave the jury a direction about the possible effects of delay but did not inform them whether he was speaking of the allegations of sexual assault or of harassment. Mr Doman submitted that the jury should have received a specific direction concerning the relevance of the bad character evidence to their consideration of counts 1 and 2.
18.	At page 33 the judge directed the jury that before they could rely upon a previous incident described by XT all twelve of them should be sure that she had told the truth. If they were sure they were “entitled to look at those in the manner in which I have described already”. The judge did not define whether he was speaking of multiple incidents of harassment or was including in his direction a reference to sexual assault.
19.	The only direction given to the jury specifically upon evidence relevant to Counts 1 and 2 is at pages 36 and 37 of the transcript:
“But this also relates to looking at CS’s complaints of Counts 1 and 2 … when you are considering whether the defendant has committed an attempted rape or a sexual assault, because he maintains in his interview, “I didn’t do such a thing. I wouldn’t do such a thing to a woman”. And you have now heard from Tina … that he has and that she was on the receiving end of his treatment in connection with sexual matters before. That is the reason why we have heard that evidence.”
Mr Doman submits that while the prosecution might properly have been permitted to adduce the evidence of XT’s complaint in order to correct a false impression, the learned judge should have placed before the jury the appellant’s argument that he would hardly have made such a claim if he knew that if the enquiry was made he would be shown to have lied. This went to the reliability of Ms XT’s evidence. This passage in the judge’s summing up appears to be the only point at which an analysis of the relevance of the evidence of Ms XT going specifically counts 1 and 2 was attempted. It is a passage in which there is no analysis of the capacity of the evidence  to establish a relevant propensity. On the contrary, it appears to invite the conclusion that Ms XT’s contradiction of the claim made in interview was conclusive.
20.	We are concerned that the jury’s consideration of Ms XT’s evidence about the alleged sexual assault upon her became subsumed in their consideration of the welter of evidence as to harassment. We note that approximately half of the judge’s summing up related to the evidence of XT. In our judgment, the jury should have received a specific and separate direction relating to the allegation of sexual misconduct. If similarities between the two sexual complaints were relied upon they should have been identified. The relevance of the evidence to counts 1 and 2 should have been separately explained. The issue of delay required separate consideration in the context of the allegation of sexual assault. A careful direction was required as to whether the evidence of XT as to the incident in 2005 was sufficient to constitute proof of a propensity to commit further sexual offences in 2010. In our judgement the judge’s suggestion to the jury that they should not sell the witness short was inappropriate, as was the failure of the judge to place before the jury the defence response to the claim that he had sought to create a false impression of himself. The passages to which we have referred at paragraphs 13 and 19 above had the (unintended) appearance of partiality and tended to reverse the burden of proof. 
21.	We consider there is force in Mr Doman’s submissions. Ms Whitby has rightly observed that the jury returned different verdicts in respect of counts 1 and 2 which does not indicate that they adopted a “blanket” approach to XT’s evidence. However, we are not satisfied that the jury received enough assistance as to their approach to this aspect of the prosecution case. It is quite possible that the jury returned a verdict of not guilty upon count 1 simply because they could not be sure even upon the evidence of CS that the defendant had attempted to rape her. We cannot be sure of the use to which the jury put XT’s evidence in respect of counts 1 and 2. There is a danger that the jury may have invested her evidence of a sexual assault in 2005 with an importance it did not deserve. In those circumstances we cannot be satisfied that the verdict upon Count 2 is safe. For these reasons we allowed the appeal.