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No: 201705225/C3/201705227/C3 

Neutral Citation Number: [2018] EWCA Crim 2073
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 26 June 2018
 
B e f o r e:

LORD JUSTICE DAVIS 

MR JUSTICE NICOL 
 
MRS JUSTICE CARR DBE 

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R E G I N A 
v 
FESAL AIDARUS 

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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Mr S Ward appeared on behalf of the Applicant
Ms E Smith appeared on behalf of the Crown

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J U D G M E N T
1.	LORD JUSTICE DAVIS:  The applicant was born on 8 August 1998 and is now aged 19.
2.	His applications are for leave to appeal with regard both to conviction and sentence have been referred to this court by the Registrar.  So far as the application for leave to appeal against conviction is concerned, essentially the grounds of challenge are by reference to the judge's declining to allow the question of evidence concerning sexual behaviour of the complainant.
3.	The position is this.  On 9 November 2017, after trial in the Crown Court at Birmingham before His Honour Judge Drew QC and a jury, the applicant was convicted of a count of rape and was thereafter sentenced to a term of 6 years' detention in a young offender institution.
4.	The background facts leading up to this conviction are these.  On the evening of Friday 30 October 2015 the complainant, who may be called "J" and then aged 14, was on her way to visit a friend.  She was to say in her Achieving Best Evidence interview (ABE) she had that evening argued with her mother about going out and eventually her mother had relented and permitted her to go out.  According to her evidence, on her way to meet her friend, she saw a man whom she knew as "Al" and joined him in his car with the applicant who was unknown to her.  The car then drove away.  She was seated in the back seat and was smoking a cigarette.  It seems that the car visited various destinations but Al eventually stopped the car in an alleyway and then got out of the car, as he said, to take a telephone call.  That left her in the car with the applicant.
5.	On her evidence, the applicant then asked her to get out of the car and join him for a chat.  She followed him to the front of the car when, according to her, he asked her to perform oral sex on him and she refused.  He asked her to have sex with him and, again, she refused.  Then, on her evidence, the applicant took hold of her arm and bent her over the bonnet of the car and took down her trousers and knickers, put on a condom and had vaginal sex with her, all without her consent.  She was to say that she was crying when intercourse occurred.  She said that when the applicant withdrew he asked her if she liked it. She told him that he was "sick". He then took off the condom and threw it on the ground and she noticed that he had ejaculated.
6.	On her evidence, the applicant then walked over to speak to Al and when they returned Al asked her if she was still a virgin.  She asked to be taken home but Al told her "no" and that he had things to do first.  At all events after that they went on to some kind of firework party in a park where she spoke to some of Al's friends.  Eventually she was dropped off home, she saying that the applicant said to her "Aren't you going to say thank you?".
7.	When she got to home she went straight to bed.  She washed her clothes and did not tell anyone of what had happened until she spoke to her sister the following day.
8.	The sister's statement was read to the jury and stated that the complainant, J, had told her that she had been with Al and the applicant, that the applicant had asked her to perform oral sex and she had refused and then the applicant had bent her over the car bonnet and had sex with her against her wishes.  The sister was to state that J had been very emotional when giving her account and the sister had urged J to tell their mother which eventually she did.
9.	There was some CCTV material available, although to a great extent that was inconclusive and did not capture all that may or may not have occurred.  At all events, although there was some material derived from the CCTV footage, the recording seemed to indicate that at one stage the applicant said to Al: "Al, stay there a sec", and perhaps indicating also that the complainant was saying "no", although that was obscure.  At all events, the complainant accepted in cross‑examination that she could not be heard on the CCTV footage crying or telling the applicant that he was "sick".  She also accepted that she had gone to the park and spoken to some boys after the incident in question.
10.	When spoken to by the police before being formally arrested the applicant gave the police a false name and address.  When being taken to custody he was recorded as saying "my word against hers".  When interviewed the applicant provided a prepared statement in which he stated that he had consensual vaginal sex with J, a girl who he understood to be 16 years old.  He thereafter made no comment to questions asked.  His case at trial, he giving evidence, was to the same effect as set out in his prepared statement.
11.	In his evidence the applicant described how it was that the complainant had got into the car and how she had told him that she was 16.  According to him, he asked her to sit beside him in the front of the car, after Al had got out, as it was easier to talk, then jokingly asked her if she would give him a "blow job" to which she responded: "I don't mind" and she then started to perform oral sex on him.  He then asked her if she wanted to have sex but she told him the car was too small.  They both got of the car.  Again she performed oral sex on him and she then agreed to have sex.  He then put on a condom and there was then vaginal sex, she not resisting or saying "no".  After that he called over to Al.  Al was still on the phone.  They then walked back to the car together and the three drove away.  When they met up with the other boys in the park he said that he stayed in the park while Al dropped the complainant home.  It may be added that neither prosecution nor defence called Al as a witness.
12.	No complaint whatsoever is made about the fairness or balance of the summing‑up.  Nor is any complaint made about the accuracy of the written route to verdict document provided to the jury and the judge's legal instructions to the jury.
13.	The grounds of appeal are based entirely on rulings given by the judge, both before the trial and at the trial, with regard to applications made by the defence, for admission pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999 of sexual behaviour on the part of the complainant.
14.	Section 41 in the relevant respects provides as follows:  
"Restriction on evidence or questions about complainant’s sexual history. 
 (1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court— 
 (a) no evidence may be adduced, and 
 (b) no question may be asked in cross‑examination 
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. 
 (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
 (a) that subsection (3) or (5) applies, and 
 (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. 
 (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either— 
 (a) that issue is not an issue of consent; or 
 (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or 
 (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
 (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or 
 (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event 
that the similarity cannot reasonably be explained as a coincidence. 
 (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
 (5) This subsection 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.
 (6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."
We also note the definitions set out in section 42 of the 1999 Act.
15.	The sexual behaviour sought to be relied upon by the defence related to two different situations.  The first related to an admission by the complainant, J, to police officers on 20 July 2015 that she had performed oral sex on a boy whom she knew when she was aged 13 and when the boy also was 13.  This was a few months before the present alleged offence.
16.	The police record of that in the relevant respects reads as follows:  
"I had visited [J].  Also present was her mother.  [J] stated that she was sending [X], 13 years, on her phone.  He sent an explicit picture which she deleted, she then sent a picture of her face and cleavage.  She denied she sent any further text of naked photos.  She then states she would give [X] a blow job as he said he would show people the photo.  Mum was very vocal speaking over [J] and explaining how she was not allowed out of the house and the fact that she would not be returning to the centre...  I asked mum if I could speak to [J] alone and she was happy for this.  We spoke about what had happened.  She again stated that she never sent a naked photo.  She stated that the blow job was not a big thing and wished the whole thing was dropped.   She states in relation to the messaging this was all bravado and she did not plan to give him a blow job."
17.	The second situation sought to be relied upon occurred some 2 years after the present alleged offence when the complainant was 16 or 17.  By this time she was living at a children's home.  In August 2017 she told staff that she had, over a 3‑week period, meeting men and getting into their cars.  They had been providing her with drugs and drink and she owed them money. One of the men, that could be called "M", she had known for some years and she said that she had sex with him at a house party.  She was to say that there were five men in all and on various occasions she had, separately, given them oral sex whilst in their cars, there only being one man in the car on each such occasion.  All the men were older than her; one of them indeed was very significantly older, being aged about 40.
18.	It is not entirely clear just how specific J had been as to these matters or precisely what she had actually accepted.  But it is said that there was an amount of supporting evidence for this, both from phone numbers found and from observations of staff at the children's home.
19.	What was submitted to the judge, and is submitted to us now, was that in each instance the described sexual behaviour being oral sex was "so similar" to that immediately preceding the alleged vaginal penetration on the bonnet of the car on 30 October 2015 that it should be admitted and that a refusal of leave to admit might have the result of rendering any conviction unsafe.  It appears to have been common ground that the proposed evidence related to an issue of consent and reliance was placed principally on section 41(3)(c)(ii).
20.	We consider that the judge was fully entitled to reject these two applications as he did.  Mr Ward, appearing on behalf of the applicant, focused in particular on the words "in any respect" as contained in section 41(3)(c) and said that applied in particular to the incidence of oral sex.  He drew attention to the remarks of Lord Clyde in the case of R v A (No 2) [2002] 1 AC 45, at page 96.
21.	We think however that, having regard to the circumstances of the present case, Mr Ward's approach, with respect, involves a wrong application of the provision of the section to the circumstances of this particular case.  Here, the first previous incident, which had involved a 13‑year‑old boy whom she knew, occurred in circumstances where she had said that she felt pressured, indeed coerced, to submit to his demands given his threat to publicize the photo.  The fact that oral sex was involved at a time when J was 13 cannot of itself, contrary to Mr Ward's submissions, provide in this case the necessary degree of similarity.  Indeed, as the judge pointed out, there were very many dissimilarities.  What the judge in fact said was this: 
"What I need to in particular to focus on is the degree of similarity.  In my judgment the similarity is not so great that it could not reasonably be explained as a coincidence. The relationships between them and the complainant, the incidents took place in different as the incidents go. There is not alleged to be, for example, a car on the second occasion or another boy present, nor a drive around before the incident took place, or afterwards, or defendant is alleged to have then committed rape. It seems to me, therefore, that so far as the application is concerned it falls at the first hurdle.
I do, however, of course, have to have in mind the provisions of subsection (2)(b) that a refusal with leave might have the result of rendering unsafe a conclusion of the jury on that by refusing leave it will not render unsafe any conclusion of the jury in relation to the issue in the case; namely, the one of consent."
That was a conclusion, in our judgment, which the judge was entitled to reach.  It cannot be said that such proposed evidence was so relevant that its exclusion would engender unfairness.
22.	As to the second ground, Mr Ward has wisely not sought to place much emphasis on it. Not only did the second situation postdate the present alleged offence by a period of some 2 years, but the circumstances of that alleged sexual behaviour was in a wholly different context; that is J being under a degree of compulsion owing drug debts as she did, involving planned meetings and where the men were much older.  There were a number of other differences as well.  In our view, the judge was unquestionably entitled to reject this particular application as he did.  Indeed, this particular application seems to have tested to the very limit the very rationale for enacting section 41 in the first place.  Indeed that might also be said of the first application.
23.	The third ground relied on is put on a somewhat different basis, albeit it too related to the first incident involving the 13‑year‑old boy.
24.	In her Achieving Best Evidence interview the complainant, J, had at one stage said, towards the outset of the interview, that when the applicant was asking her for oral sex he had also said: "Have you gave head before and that?".  She is recorded in the transcript of the ABE interview as saying "And I was like 'no I haven't'..."
25.	What was and is submitted is that that answer was untrue and the defence should have been permitted to rebut it pursuant to section 41(5) of the 1999 Act.  Otherwise the jury would, in a case where credibility was key, have been left with the false impression that the complainant had had no previous experience of oral sex.
26.	Here too we think the judge was entitled to reject this application for the reasons that he gave.  It may be noted that at no stage had the prosecution sought to advance a case that the complainant, J, had indeed had no previous experience of oral sex.  Neither the questioning of prosecution counsel nor the closing speech of prosecution counsel even suggested as such.  Nor had the judge sought to give any such suggestion or impression in his summing‑up.
27.	In truth, as the judge pointed out, the observation made briefly in Achieving Best Evidence interview went to what the complainant said as to what she had had said at the time not as to the truth of what she had said.  Indeed, it was not the defence case to accept that she had indeed said as much.  That indeed was not accepted at all.  Rather the defence case was that she never said anything like that at all because everything was consensual.
28.	What the judge said in essence was this in his ruling:   
"In my judgment this prosecution evidence that is to be adduced of her ABE interview is going before the jury because it is evidence that the victim said of what took place.  In other words, she says, 'This is the exchange between the two of us in the car'.  It is not being adduced in order to establish that what was said was in fact true.  The defence case, so far as that conversation is concerned, is that the victim [J], is lying when she says it took place at all.  
In my judgment it is therefore not necessary to adduce this further evidence; that is of the fact that [J] performed oral sex on another boy.  It neither rebuts nor explains whether or not [J] said these things.  The truth of those assertions is an entirely separate matter and not being an issue in the case should not be admitted ..."
29.	That, in our judgment, is entirely justifiable reasoning.  To that it may perhaps be added that had the defence sought to make such a case, it could have been very two edged so far as the defence were concerned: because it may well be that then might have resulted in answers saying that she had told an untruth about a previous sexual experience in order to get him to desist from his sexual demands; a position not dissimilar from that which arose in the case of R v Soroya [2006] EWCA Crim 1884.  But we need say nothing further about that.
30.	Accordingly, given the circumstances of this particular case, we think the judge's rulings were justified.  The contrary is not realistically arguable and we refuse these applications with regard to conviction.
31.	We turn then to the application with regard to sentence.  In the light of the conviction by the jury, they having heard both the complainant and the applicant, this was a squalid and unpleasant case.  Moreover, the judge made clear in his sentencing remarks, and he of course had the benefit of having conducted the trial, that he concluded that there was a degree of planning and of targeting J. Moreover, the judge was sure that Al was at the end of the alley keeping a lookout, giving the applicant the opportunity to see how far he could get with the complainant.
32.	The judge categorised this, for purposes of the sentencing guideline relating to rape, as category 3A and that is not challenged.  That connotes for an adult a starting point of 7 years, with a range of 6 to 9 years.  Here, as the judge identified, there were a number of aggravating factors:  there was ejaculation, albeit that there was a condom used; this was a dark alleyway and the offending occurred late at night; and there was an element of planning and targeting and Al was present to assist.  Furthermore, of course, there was the fact that J was just 14 at the time.
33.	As to mitigating features, leaving aside the age of the applicant, there was precious little in the way of mitigation.  The applicant has a number of previous convictions, mainly for violence, although it is right to say none for sexual offending.  It is also right to say that he had not been in immediate custody before.  But there was no remorse and, in truth, no real mitigation apart from his age.
34.	As to that, whilst he was 19 at the time of sentence, he had only just reached the age of 17 at the time of the offending.  It is to be noted that he was in fact aged 18 at the time of conviction, so the relevant sentencing guideline and contained Overarching Principles do not directly apply to him.  Nevertheless, clearly his age was a powerful factor in this context.
35.	The submission of Mr Ward is that the judge failed sufficiently to factor in the point that the applicant was only just 17 at the time.  He suggested that by reference to the Overarching Principles one would expect a discount of something like in between half and a third as compared to a sentence appropriate for an adult.  He further submits that after balancing the aggravating and mitigating factors apart from age, the figure to be taken should have been that of 7 years, being the starting point contained in the guideline.  On that footing he says a discount of 1 year for sentence simply insufficiently failed to reflect the fact that the applicant was only just 17 at the time.
36.	Although the judge did not spell out at what figure he ended up after balancing aggravating and mitigating factors, it seems to us plain that he necessarily would have ended up at a figure somewhat above the starting point of 7 years taken in the guideline.  This is because there were a significant number of aggravating features, as we have said, and hardly anything in the way of mitigation apart from age.  Consequently, we think a figure, before making a reduction for age, of in the region of 8 years would have been entirely appropriate.  In the result, the judge imposed a sentence of 6 years' detention in a young offender institution, connoting a discount of 25% from the notional ending point he had otherwise reached.  Given that on any view this applicant had a degree of criminal maturity and given that the judge made no finding of there being any degree of immaturity, we think that was an entirely sufficient discount appropriate to the circumstances of this case.
37.	It may be that, given the age of the applicant a sentence of 6 years' detention was a severe one; but we are not able to say that it was manifestly excessive and consequently we refuse this application also.   
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