201703375 C1; 201703377 C1

Neutral Citation Number: [2018] EWCA Crim 1318
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  22nd  March  2018

B e f o r e:
LORD  JUSTICE  SIMON

MR  JUSTICE  GOOSE

and

HER  HONOUR  JUDGE  TAYTON  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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J  G

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Mr J Swain appeared on behalf of the Appellant

Miss R Shenton appeared on behalf of the Crown

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J U D G M E N T
Thursday  22nd  March  2018

LORD JUSTICE SIMON:  
1.  The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which this appeal is concerned.  Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of those offences.  This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

2.  On 7th July 2017, in the Crown Court at Manchester before His Honour Judge Rudland and a jury, the appellant was convicted of three counts of rape (counts 5, 8 and 11), five counts of indecent assault (counts1, 2, 4, 7 and 10), four counts of indecency with a child (counts 3, 6, 9 and 12), and two counts of cruelty to a person under 16 (counts 13 and 14).  On the same day he was sentenced to terms of imprisonment totalling 22 years.

3.  The appellant appeals against conviction (except in relation to counts 13 and 14) and against sentence, by leave of the single judge.

4.  The facts giving rise to the offences were as follows.  The appellant had met a woman, "S", in early 1999.  S was the mother of the first complainant "RE".  The appellant moved in with S and married her later in 1999.  By marrying her, he became the stepfather of S's two children by "CE": a girl, RE (the complainant in counts 1 to 12) and a son.  RE was born in March 1987 and so was 11 when the appellant and her mother began their relationship.

5.  The appellant and S subsequently had a child together: a daughter, "SG", born in November 1999.  She was the complainant in counts 13 and 14.  By early 2003, the marriage between the appellant and S had broken down.  He left the matrimonial home in Manchester to live in London with his brother.

6.  Approximately two weeks before RE's sixteenth birthday in March 2003, S contacted the appellant and asked him to have RE to stay for a couple of weeks because her behaviour had recently been difficult.  He agreed.  After three days, however, CE (her father) became concerned and RE was reported missing.

7.  The appellant and RE subsequently made contact with the police in London and then travelled back to Manchester, where RE told the police (in the appellant's absence) that he had not had any sexual contact with her.  She rejected the requests of her family (also made in his absence) to return home.  Instead, she returned to London with the appellant.

8.  It was common ground that the appellant and RE then had a relationship which lasted until 2014 and which brought them two daughters, born in 2007 and 2009 respectively.  There were no counts in relation to the relationship between the appellant and RE after she had turned 16.  

9.  In 2007 or 2008, SG (the appellant's daughter with S, and RE's half-sister) went to stay with them in London.  As a result of her allegation that she was being neglected by her mother (S), the appellant and RE applied for custody of her.  In due course, full custody was granted to them.

10.  In March 2013, there were issues which led to SG's arrest by the police in November 2013.  Following police enquiries, a decision was made not to prosecute her and she was offered counselling.  The prosecution case was that, during this counselling, concerns were raised with a clinical psychologist, Dr Louise Roberts.  

11.  On 9th April 2014, at a meeting with them, both RE and SG made allegations against the appellant which led to the police being involved.  RE alleged that her sexual relationship with the appellant began before she left Manchester and therefore before she was 16.  SG alleged that she had been physically assaulted by the appellant on a number of occasions.  These were allegations which founded the cruelty charges (counts 13 and 14).  Count 13 reflected an occasion when the appellant assaulted SG by banging her head against the wall; and count 14 reflected the many occasions when the appellant wilfully ill-treated her.

12. The appellant was arrested and interviewed.  He made no comment in interview but provided prepared statements in which he denied the allegations.  The defence case was denial: the allegations, it was said, were false and malicious.

13.  Since the defence case was that there had been no sexual contact between the appellant and RE before she was 16 (in March 2003), and that the prosecution case was that he had groomed her from early 1999, the parties agreed that it was irrelevant whether RE had had any previous sexual experience.  It was also agreed that there was no basis for applying to introduce her previous sexual history, and reference to it was edited out of the Achieving Best Evidence interview which RE had given to the police.

14.  The issue for the jury was whether they were sure that the incidents related by RE had taken place.

15.  At trial, the prosecution evidence relied primarily on the evidence of RE and her mother, S.

16.  RE told the jury that the appellant had not initially paid her much attention.  Her mother, S, had suggested that she go out with him in order to "bond".  He then began to buy her items, to tickle her and to act in a way that left her confused.  He progressed to tickling her bottom and breasts (indecent assault, counts 1, 2, 4, 7 and 10).  In July 2000, when she was 13, she said that the appellant took her hand and placed it under his shorts and on his genitals.  She pulled away, but he told her it was "okay".  That account was relied on in support of count 3 (indecency with a child).

17.  At some time afterwards (RE could not recall when), they had full sexual intercourse (count 5, rape).   He would penetrate her, but withdraw prior to ejaculation, and she would masturbate him.  She thought she loved him, and he made her feel special.  However, in 2001, after a car accident in which they were both injured, he began to be physically abusive to her.  He also became possessive and controlling, cutting her off from her extended family and friends.  This sexual relationship (reflected in the other counts of rape and indecency with a child) lasted until he left the matrimonial home in 2003.

18. RE's mother (S) gave an account of the history of her relationship with the appellant, including his controlling nature, her fear of him and the fact that she had not suspected at the time that there was any sexual relationship between him and RE.

19.  Significantly, in the context of the conviction appeal, S said in response to questions from the judge that, at the time of the alleged offences, RE was not very sexually mature or flirtatious.  We will return to this point later in the judgment.  

20.  The appellant gave evidence in his own defence.  He said that there had been no sexual contact between RE and him before RE's sixteenth birthday (in March 2003); and that the allegations were subsequently concocted by RE. Their sexual relationship began some weeks after her sixteenth birthday, and they subsequently lived together and had two children.  When they were born, his mother came to stay and this enabled RE to pursue her own interests.

21.  In 2013, the appellant said that he wanted to try to emigrate to Australia.  RE tried to qualify as a teaching assistant to help the emigration application.  In view of the prospect of the appellant having to go to Australia alone for a six-month period, and the discovery of the fact that he had Facebook contact with other women, the defence contended that RE's allegations were in response to her fear that their relationship was about to end and that the appellant would be able to gain custody of their two daughters as well as SG.

The Appeal against Conviction
22.  The Grounds of Appeal are that the verdicts were rendered unsafe as a result of a misleading impression conveyed as a result of the judge's questioning of RE's mother, S.  RE had told the police in her ABE interview that she had had sex with two other men when she was aged about 12 or 13.  This was edited out of the ABE interview presented to the jury, so as to ensure that section 41 of the Youth Justice and Criminal Evidence Act 1999 was not contravened.

23. Towards the end of her evidence, the judge asked questions relating to RE's physical development at the age of 12 and 13, about any expressed interest in boys, and whether she was "flirty".  The effect of S's evidence was that she was physically mature, did not express any interest in boys, and was not "flirty", but had mixed with local boys before the appellant prevented her from doing so.  The judge's questions concluded in this way:
Q.  Sometimes children are sexually forward at a young age, or sometimes sexually backward, or just sometimes in the middle, neither one way or the other.  How would you characterise [RE]?
A.  She was quiet.  She was quiet.  A quiet girl.

24.  The appellant's complaint is that this evidence created a false impression that RE had no previous sexual experience prior to the appellant having sexual intercourse with her.  We note, however, that no application in relation to this exchange was made at this stage.

25.  During the course of the summing-up, the judge returned very briefly to S's evidence about RE.  He said:
She was not very sexually mature or flirtations wasn't [RE].  Her breasts were starting and she said they spoke about menstruation and things of that sort.

26.  At the end of the summing-up, Mr Swain took issue with the judge over this aspect of the summing-up on the basis that it had potentially created a misleading impression in the mind of the jury that RE had hitherto been sexually inexperienced.  The judge rejected the complaint.  S had said that RE was not flirtatious and the fact that she was not flirtatious did not mean that she was not sexually experienced.  Mr Swain asked the judge to admit the contents of RE's unedited ABE interview.  The judge declined to do so.  There was a difference, in his view, from RE's manner and bearing, as it appeared to others, and whether she was sexually experienced.  The judge indicated that if Mr Swain did not like the ruling, he could take the point elsewhere.  He has.

27.  Mr Swain relies on section 41(2) of the Youth Justice and Criminal Evidence Act 1999 ("YJCEA"), which states that the court may give leave in relation to any evidence or question of previous sexual history if satisfied that section 41(5) applies and that a refusal of leave might have the result of rendering unsafe a conclusion of the jury.  Section 41(5) applies if the evidence or question: (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant, and (b) would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by the defence.  Here, it is said, the evidence was adduced during re-examination by the prosecution (albeit the evidence was given in answer to questions posed by the trial judge).  As Mr Swain expressed it during the course of argument, "the genie was let out of the bottle".

28.  Mr Swain contends that section 41(5) should have applied in this case and that the defence should have been allowed to correct the erroneous impression created by S as to RE's sexual past.  In particular, he argues that it would be wrong if a trial judge could ask such questions without the defence being able to rebut the answers; whereas, if the prosecution had asked exactly the same questions, it would have been able to do so.  He relies on the decision of this court in R v Hamadi [2007] EWCA Crim 3048 at [21], in which the court stated that section 41(5), like section 41(3)(c), needs to be interpreted more widely than its language might otherwise suggest so as to accommodate a situation where a prosecution witness has said something in cross-examination about the complainant's sexual behaviour which was not deliberately elicited by defence counsel and is potentially damaging to the accused's case.

29.  In her written Response Miss Shenton, who appears on behalf of the prosecution, submits that the complaint is based entirely on the questions asked of S by judge.  S was not a crucial witness for the prosecution and the questions asked by the judge and the answers to the questions were directed to RE's physical development, whether she was flirtatious, and whether she mixed with local boys before the appellant prevented that.  The jury were already aware that RE went to parties, consumed drugs and alcohol, and mixed with "the wrong crowd".  Furthermore, it was accepted on the part of the appellant that RE's previous sexual experience was irrelevant, bearing in mind the nature of the defence: that there was no prior sexual contact.  

30.  The prosecution also relies on the fact that the first time that an application was made to adduce the evidence of the ABE interview was part-way through the summing-up and that the application was based on the single section of the summing-up which dealt with S's evidence.  It is contended by Miss Shenton that the previous sexual experience of RE was and remained wholly irrelevant in the circumstances of the case; and that was the reason why no application was made at the time.  The judge's words in the summing-up did not change that position. 

31.  We have considered these submissions.  In the trial of a defendant charged with a sexual offence, the provisions of section 41 of the YJCEA are intended to confine the circumstances in which a complainant may be asked questions on behalf of an accused about any prior sexual behaviour: see section 41(1).  The circumstances in which the court may grant leave to ask such questions are where subsections (3) or (5) apply, and the court is also satisfied that refusing leave might render unsafe the conclusion of the jury "on any relevant issue in the case": see subsection (2).  Subsections (3) and (4) do not apply here because the issue of consent did not arise.  Subsection (5) provides:
(5)  This section applies if the evidence or question –

(a)	relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant …; and

(b)	in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

Subsection (6) further confines the evidence or question to a specific instance or instances of alleged sexual behaviour of the complainant.

32.  We turn to the case of Hamadi.  At [20] Moore-Bick LJ giving the judgment of the court said this:
The starting point for the discussion is the natural meaning of the words used in subsection (5).  In our view the expression 'evidence adduced by the prosecution' naturally refers in this context to evidence placed before the jury by prosecution witnesses in the course of their evidence in chief and by other witnesses in the course of cross-examination by prosecuting counsel.  It does not naturally extend to evidence obtained from prosecution witnesses by the defence in the course of cross-examination.  …  We are unable to accept the submission that it extends to all evidence given by the prosecution witnesses, however it comes to be given.  However, whether, as [counsel for the appellant] argued, it should be given a more liberal interpretation in this context is another matter.

33.  The court continued at [21], in a passage relied on by the appellant:
21.  …  we think that in order to ensure a fair trial there may be cases in which the accused ought to be allowed to call evidence to explain or rebut something said by a prosecution witness in cross-examination about the complainant's sexual behaviour which was not deliberately elicited by defence counsel and is potentially damaging to the accused's case.  For that reason we would accept that subsection (5) has to be read in the somewhat broader sense that its language might otherwise suggest in order to accommodate such cases.

34.  In Hamadi, the court concluded that the complainant's evidence which gave rise to the application to ask questions or adduce evidence about her sexual behaviour was not adduced by the prosecution, but by the defence: see [22].

35.  A number of points may be noted in relation to the present case:
(1)  The appellant's defence was not that RE consented to sexual relations.  His defence was that there had been no sexual contact whatsoever prior to RE's sixteenth birthday.  Her past sexual history had no bearing on this defence.

(2) The impression that was given from the exchange with the judge was generalised and related primarily to her physical development and personality, rather than her sexual behaviour.
(3) The evidence did not prejudice the appellant's case, let alone provide a legitimate basis for introducing details of RE's previous sexual history.  The jury was already aware that RE was someone who mixed with "the wrong crowd", attended parties, took drugs and consumed alcohol.  The edited version of RE's ABE interview was before the jury and contained the following:
RE:  …  At that time I was taking ecstasy tablets, I was on drugs and stuff like that, with, you know, with my friends and I was a bit …  Yeah, I was with the wrong people.

Q.  And when did you start taking the ecstasy?

RE:  It was about the same time, twelve years old.

Q.  Okay.  And how often would you take those?

RE:  Oh, I've only done it about three times.

Q.  Right, okay.  So it wasn't a lot?

RE:  No, but I was drinking a lot, I would drink nearly every weekend.

Q.  Mmmm.

RE:  Like, vodka and …  Erm, but like I said I was with the wrong group.

It follows that nothing of what had been said by S in answer to the judge materially altered the impression of RE in the minds of the jury.

(4) The answers were given not to questions from the prosecution, but to questions by the judge.   It is not entirely clear why he asked those questions.  However, importantly, they were not questions asked of the complainant, but of her mother.  We would accept that if such questioning and such evidence was seriously prejudicial to the defence, and such as to impact on the fairness of the trial, it might lead to the discharge of the jury.  However, we do not accept that it would lead to leave being given to question a complainant about previous sexual history or to adduce evidence of it.

36.  For all these reasons we do not accept that the present case falls within the category of cases envisaged by [21] of Hamadi; nor were the circumstances such as to affect the safety of the convictions.  Accordingly, the appeal against conviction must be dismissed.

The Appeal against Sentence
37.  The appellant was aged 43 at the date of sentence.  He had no material convictions.  The judge passed sentence without the assistance of a pre-sentence report.  We are satisfied that such a report was not, and is not, necessary.

38.  There was a Victim Personal Statement from RE.  We quote two passages from it:
Since relocating outside the London area for the first year I seriously thought of returning back to [the appellant] because I was so worried that my close family would not believe me because [the appellant] always used to tell me, when I was with him, that I would not be able to cope on my own and that my family would not want me.  [The appellant] would not allow me to have friends and I had no interaction with the outside world so when I had to fend for me and the kids I struggled.  For example, I remember when I had to open my own bank account, my dad had to come with me because I didn't know what to say to the bank or what to ask for.  I felt completely lacking in any self-confidence and worth.  I felt like I was an alien.  I felt completely different to anyone else.  I felt numb.

…

I would hope that the court can acknowledge the impact this abuse has had on me and my two children.  I have missed out on a normal teenage life because I wasn't allowed to attend school.  I have had to start from scratch with my education.  I missed out on my twenties because I wasn't allowed to have friends and I missed out on ten years of my family's life.  I will always carry this abuse with me but I refuse to let it hold me or my children back from having a positive normal family life.

39.  In passing sentence, the judge set out the facts as we have described them.  He noted that the appellant was an aggressive, controlling individual who caused fear to all those around him.  The grooming of RE started with tickling her bottom, but slowly and bit by bit his sexual attentions increased.  He convinced her, a young, impressionable girl who had few secure landmarks in her life, that he was the solution to all her ills.  Contrary to what she may have believed, it was not a relationship but a vehicle simply for his sexual gratification, which continued day in, day out, throughout her adolescent years.  He robbed her of that adolescence and stole her young adulthood, by removing from her all those choices she could legitimately and quite appropriately have expected to make in relation to people of her own age.  This was not only in the context of other relationships (her siblings and other relatives), but importantly in her ability to educate herself as she wished in accordance with her own legitimate desires.  All this was stolen from her by the appellant's incessant, relentless, sustained control of her life.

40.  Once he had left for London, he remained interested in what was happening to RE, not least because he was concerned that there should be no disclosures by her about his sexual abuse of her over the years of her sexual minority.  When she came to live with him in London and she had her two much loved daughters, they appeared on the surface to be a family unit existing in a sensible and normal way; but all the time there was the insidious undercurrent of the control exercised by the appellant, as disclosed by the evidence.

41.  When SG came to live with them, there was no evidence that the appellant was interested in her sexually; but her presence in the household began to annoy him.  The way he treated her was a disgrace.  She was someone of whom he should be proud.  She was an impressive young witness and an intelligent girl with a good future before her, now that she was free with RE and her family in Manchester.  But the way he treated her physically was quite appalling.  She was utterly undeserving of such treatment.

42.  So far as the offences of rape were concerned, the judge concluded that there were the following aggravating features: RE's age; the way in which she was groomed in her own home; the way in which the appellant "treated her like a doll" when it came to having sexual intercourse with her; and the secrecy he had urged upon her.  It was a massive abuse of trust.  It went beyond grooming; it was brainwashing; it was prolonged and it was sustained.  It occurred over a very long time on many occasions and this had to be reflected in the sentence.

43.  The judge decided that the offences of rape were category 2A (category A culpability and category 2 harm).  So far as the cruelty charges were concerned, the offending fell within the middle band of the Guidelines on Assaults on Children and Cruelty to Children.

44.  The judge then passed concurrent sentences of eighteen years' imprisonment on counts 5, 8 and 11 (rape); concurrent sentences of six years' imprisonment on counts 1-4, 6, 7, 9, 10 and 12 (where the victim was RE); and of four years' imprisonment on counts 13 and 14 (where the victim was SG).  The four year terms were ordered to be served concurrently with each other, but consecutively to the sentences on counts 1 to 12.

45.  In his submissions to this court, Mr Swain realistically accepted that these were extremely serious offences.  It was a prolonged series of offending over three years, with a catalogue of sexual offences.  However, he submitted that the sentence of eighteen years' imprisonment for the offences of rape was manifestly excessive.  Although the judge did not indicate his starting point for the sentences for rape, he said that they were category 2A offences under the guidelines.  This indicated a starting point of ten years' custody and a range of nine to thirteen years.  The judge stated that the offences were "at the upper end of the tariff", but in doing so fell into error since he used the factors that placed the offending within 2A to increase the sentence beyond the category range to eighteen years: namely, that the victim was particularly vulnerable due to personal circumstances (harm), together with significant planning and abuse of trust (culpability).  To this extent there was a degree of double counting.

46.  The appellant also appeals against the sentences in relation to the offences of child cruelty.  Mr Swain contended that these sentences were excessive in all the circumstances and that the seriousness of the appellant's conduct would have been properly reflected by sentences of two to three years' imprisonment.  The appellant accepts that the judge was right to order the sentences to run consecutively, but Mr Swain submitted that the term of four years was manifestly excessive.  He also argued that the overall sentence of 22 years' imprisonment passed on the appellant was too long as a matter of totality.

47.  So far as the sentences for the offences of rape were concerned, counts 5, 8 and 11 were specimen counts which reflected repeated rapes in the years when RE was aged 13, 14 and 15.  It follows that the indicated sentence under the guidelines had to be adjusted upwards to reflect not only those factors which took it into category 2A were engaged, but the time over which and the number of times the rapes were committed.

48.  So far as counts 13 and 14 (child cruelty) were concerned, there was agreement that these offences should be categorised as "mid-band" (more accurately the second of four bands), with a starting point of three years' custody and a range of two to five years.  However, count 14 reflected a course of deliberate ill-treatment over a period of more than five years.  There is no issue that the judge was entitled to pass consecutive sentences in relation to the various offences against the two victims of his crimes.

49.  In the light of these circumstances, we have reached the following conclusions.  In respect of the offences against RE, the sentence of eighteen years' imprisonment for the repeated rapes of a child over a period of years cannot properly be described as manifestly excessive.  The judge was entitled to take into account a number of aggravating factors: the young age of RE (only 13 at the time of the first serious offence); the way in which she was groomed in her own home; the fact that it was an abuse of trust; the sustained and relentless nature of the offending; and the appellant's "brainwashing" of her. 

50.  Counts 13 and 14 (committed against SG) were correctly placed at the higher end of the guidelines.  Count 14 was sadistic conduct carried out over a long period of time to the appellant's daughter, who had moved to live with him following neglect at the hands of her mother.  She was accordingly in a particularly vulnerable position, and this was exploited by the appellant.

51.  In our view, all the sentences were unobjectionable, viewed in isolation.  Nevertheless, viewed as a matter of totality, we are persuaded that the overall sentence of 22 years was too long by a factor that entitles this court to intervene.  

52.  Accordingly, we quash the sentences on counts 13 and 14 and substitute sentences of two years' imprisonment, to be served concurrently with each other, but consecutively to the sentences on counts 1 to 12.  The total sentence will, accordingly, be a term of 20 years' imprisonment.  To that extent only, the appeal against sentence is allowed.