Neutral Citation Number: [2004] EWCA Crim 3206
Case No: 2002/5529/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 December 2004

Before :

LORD JUSTICE MAURICE KAY
 MR JUSTICE DAVIS
and
THE RECORDER OF CARDIFF
(Sitting as a Judge in the Court of Appeal
Criminal Division)
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Between :

	REGINA		
	-v.		
	RAYMOND MITCHELL		

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Robert Newcombe appeared on behalf of the Appellant
David A.F. Jones appeared on behalf of the Crown

Hearing dates : 2 December 2004
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Judgment
Lord Justice Maurice Kay : 
1.	On 25th March 2002 in the Crown Court at Birmingham Raymond Mitchell was convicted (by a majority of 10-2) of rape.  The same jury had already convicted him unanimously of an offence of possession of an article with a blade – a kitchen knife with a seven inch blade.  By reason of a previous conviction under section 18 of the Offences Against The Person Act 1861, and there being no exceptional circumstances, he was sentenced to life imprisonment for the rape with a recommendation that he serve at least four years.  The concurrent sentence of 12 months imprisonment was imposed for possession of the knife.  He now appeals against the conviction for rape by leave of the full court.  At the conclusion of the hearing before us, we announced that the appeal was dismissed for reasons to be given later.  This judgment contains those reasons.
2.	The events giving rise to the allegation of rape arose on the evening of 23 June 2001.  They took place in the vicinity of the Hagley Road in Birmingham.  The case for the prosecution was that the complainant was approached by the appellant in the street, whereupon he asked her for a light.  He then produced a knife, which she said had a curved black handle, and forced her to go the grounds of some nearby flats where he raped her.  The case for the appellant was that the complainant was at the time working as a prostitute.  He had consensual sexual intercourse with her for which he paid.  There was then an argument following an act of oral sex for which she demanded an additional payment.  The appellant denied that he had a knife in his possession that night.  Thus, the issue for the jury was one of consent.  The events had occurred at about 10.p.m.  Soon after 11.p.m. the complainant attended a police station.  She was medically examined in the early hours of the morning.  
3.	The appellant was not arrested until 26 August 2001.  On that occasion, the complainant saw him again in the vicinity of the Hagley Road, she alerted the police and a short time later the appellant was arrested.  He had in his possession a kitchen knife with a curved black handle.  The charge in relation to that particularised the date of arrest.  
4.	On behalf of the appellant, Mr Newcombe (who was not trial counsel) seeks to advance two grounds of appeal.  First, he submits that the trial judge ought to have permitted more cross-examination and evidence than he did in relation to the activities of the complainant as a prostitute.  Secondly, he complains that the trial ought not to have proceeded in the absence of a prosecution witness who was not in attendance and whose absence prejudiced the appellant.
GROUND 1: CROSS EXAMINATION AND EVIDENCE CONCERNING THE COMPLAINANTS SEXUAL EXPERIENCE
5.	The relevant statutory provision is now section 41 of the Youth Justice and Criminal Evidence Act 1999.  For present purposes, the material provisions are as follows
“(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 sub-section (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 –
………
(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.
(4) For the purposes of sub section (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 sub 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.
(6) For the purposes of sub sections (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).”
“Sexual behaviour” is defined by section 42(1) as
“any sexual behaviour or other sexual experience, whether or not involving any accused or other person…...”
6.	The prosecution adduced evidence from the complainant that she had been active as a prostitute prior to and subsequent to 23 June 2001.  It was that she had ceased to work as a prostitute three weeks previously and had remained inactive until sometime after 23 June when she resumed her occupation.  Defence counsel made an application pursuant to section 41 (3) and (5).  He wished to establish that the complainant had in fact been active as a prostitute only minutes before her encounter with the appellant on 23 June 2001 and had also been similarly active (and in the Hagley Road area) two days earlier on 21 June.  The evidential basis for all this was to be found in the statements of two prosecution witnesses, Kerry Lillis and Denise Ward.  Their witness statements were to the effect that they had seen the complainant with the appellant at about 10.00.p.m. on 23 June.  They described him with an arm round her as they walked together towards the place where sexual intercourse was soon to take place.  The witness statement of Mrs Lillis then stated that about twenty minutes earlier she had seen the complainant in a blue Renault car with a driver who “may have been Asian”.  It also stated that she had seen the complainant in the same area in a Range Rover on the evening of 21 June.  She described the complainant on that occasion as having been “partially undressed” in the vehicle and the description as a whole was clearly one of active prostitution.  That witness statement was made on 23 June 2001.  Mrs. Lillis made a more detailed statement on 19 February 2002, just before the trial commenced.
7.	Miss Ward had been with Mrs Lillis on 23 June but not 21 June.  Her witness statement also described a sighting of the complainant and the appellant as they walked to their destination.  In addition, it referred to seeing a female in a different car with a different man two hours earlier.  Miss Ward added:
“I talked to Kerry about this as I know there is a prostitute problem in the area and I thought the driver might have just picked up this girl.  Kerry then said she thought it was the same girl who she had seen earlier in the week hanging around the area.”
When dealing with the sighting of the complainant and the appellant, Miss Ward’s statement said:
“I believe I saw the same girl as I had seen earlier.”
That was clearly a reference to the events which had occurred some two hours earlier.  
8.	In the event there was no issue about the admission of the  evidence of Mrs Lillis and Miss Ward relating to 23 June.  The prosecution conceded that defence counsel should be permitted to cross examine the complainant about that.  The judge expressed the view that the concession by the prosecution had been appropriate and that defence counsel should be permitted to cross examine the complainant about those events pursuant to section 41(3) (c).  He said:
“It was behaviour which took place at or about the same time as the events with which we are concerned, namely the activity with the defendant. To deprive Mr. Mitchell of cross examination …on that topic would be to deprive him of a fair trial.”
Plainly the judge had in mind that the case for the defence was that the whole encounter took place within the context of prostitution and the denial of the complainant that she was active in such an occupation at or about the relevant time (and in the relevant locality) should be permitted to be challenged by reference to independent evidence to contradict her.  
9.	The controversial issue was as to the position on 21 June.  So far as section 41 (3) (c) is concerned, Mr. Newcombe concedes that the requirement that the sexual behaviour of the complainant is alleged to have taken place “at or about the same time” as the subject matter of the charge creates a difficulty, even when one approaches it in the broad manner required by the decision of the House of Lords in R v. A (No 2) [2002] 2 Crim App R 351.  He therefore focuses on sub-section (5) which does not contain the same temporal restriction.  
10.	It is clear from the transcript that defence counsel at trial was also relying upon sub section (5) in relation to the events of 21 June.  The judge referred to the two witness statements of Mrs Lillis and stated:
“It would appear that she is describing [the complainant] as having worked actively as a prostitute on 21 June.  Let us suppose that is so.  Why does it matter?  It seems to me that it does not….As matters stand at the moment, in my judgment, he is not entitled to cross-examine her about the events on 21 June.  It does not seem to me that it is necessary in order to achieve a fair trial for Mr Mitchell to be allowed through counsel to cross-examine her about that.  It is what was happening on 23 June that is important and, of course, if a jury were to come to the conclusion that she was actively working as a prostitute that particular evening, immediately before she encountered the defendant, it may have a fundamental impact upon their judgment of her as a witness, not only with regard to her credibility but with regard to the evidence as to consent.”
We infer from the use of the word “necessary” that the learned judge had the provisions of sub-section (5) well in mind.  To apply it by reference to the requirement of a fair trial is entirely appropriate in the light of R v A (No2), above, and as a matter of common sense.  However, we consider that there is force in Mr. Newcombe’s submission that, in the circumstances of the case, evidence that the complainant was working as a prostitute on 21 June might be potentially important.  Let us assume that there was no evidence about the earlier incident on 23 June and that the only evidence with which the defence could contradict the assertion of the complainant about her sabbatical from prostitution was the alleged siting on 21 June.  As it was an important aspect of the case for the defence that the complainant was working as a prostitute at the time of the alleged offence, we do not think that it could be said that evidence about 21 June “does not matter” or would be unimportant.  It would relate to evidence adduced by the prosecution about the sexual behaviour of the complainant in that the prosecution had adduced evidence about her activities as a prostitute before and after the sabbatical.  Moreover, it would enable that evidence to be rebutted on behalf of the accused.  For these reasons, we take the view that section 41(5) was in play.
11.	On behalf of the prosecution, Mr Jones submits that the proposed cross examination only went to the credit of the complainant.  However, even if that were so, it is not a complete answer because the restriction on questions which go only or mainly to credit as set out in sub-section (4) applies only “for the purposes of sub-section (3)” and not for the purposes of sub-section (5).
12.	To the extent that the trial judge appears to have found no potential materiality in the events of 21 June, we consider that he took too restrictive a view.  However, the matter does not end there.
13.	The evidential material about 21 June came only from Mrs Lillis.  What Miss Ward said about it in her witness statement was inadmissible as hearsay.  Mrs Lillis (and, for that matter, Miss Ward) had given evidence about the events of 23 June.  It included seeing the complainant with the appellant and the sighting of the complainant actively engaged in prostitution some twenty minutes earlier.  Of course, we do not know whether the jury accepted the evidence of the sighting twenty minutes earlier.  If they did, then the defence had successfully rebutted the prosecution evidence that the complainant was not an active prostitute at the time.  On the other hand, if they did not accept it, it is wholly improbable that they would have accepted the unsupported (and, it has to be said, rather vague)  evidence of Mrs Lillis about 21 June. 
14.	We have well in mind the fact that we are concerned with identifications sought to be relied upon by the defence rather than by the prosecution and that, accordingly, the same problems of quality of proof do not apply.  Nevertheless, we cannot escape the conclusion that either the defence gained some benefit from the evidence of Mrs Lillis about the earlier incident on 23 June or they did not.  Either way, we do not consider that any evidence which she may have given about 21 June would have significantly added to their evaluation to the case for the prosecution and for the defence about the events of 23 June.
15.	For these reasons, even though the judge took an unduly restrictive approach to sub-section (5), we are satisfied the safety of the conviction is not undermined by his having done so.  We also take the view that the judge could have reached the same conclusion about 21 June if he had approached the matter more broadly.  He could have concluded that, although sub-section (5) was in play, to extend the ambit of the cross-examination to 21 June would go further than was necessary to ensure the fairness of the trial.  Again, the fact that the evidence came from the same witness could have supported such a conclusion.  Quite apart from our own assessment that any error on the part of the judge does not undermine the safety of the conviction, we tend to the view that if he had approached sub-section (5) in an unimpeachable way he could properly have made the same ruling. 
16.	We should add that, although the evidence of the complainant was that she was not in engaged in prostitution on the night in question and the evidence of the appellant was to the contrary, the case was properly left to the jury on the basis that, even if she had not told the truth about  prostitution on the night, it was still possible to convict the appellant provided that the jury was sure about the knife and the threats.  In his summing up, the judge placed the knife at the centre of the issues in the case.  In her evidence, the complainant gave a description of the knife.  She proceeded to state that the knife produced by her assailant on 23 June was substantially similar to the knife which was found in the possession of the appellant on his arrest two months later.  Further, the appellant, when arrested, gave a no comment interview and only advanced a defence of consensual intercourse after production of the DNA evidence showing him to be a party to such intercourse.  He also sought to change his appearance, by shaving his head (he claimed for medical reasons, although producing no medical evidence) shortly before the identification parade.  For these and other reasons which we do not need to specify there was a formidable case against the appellant.  
GROUND 2: THE ABSENT WITNESS
17.	It had been expected that one of the witnesses to be called by the prosecution was Andrew Steer, the boyfriend of the complainant.  The prosecution’s  principal interest in him was that he was expected to give evidence of recent complaint. His witness statements were to the effect that the complainant had telephoned him complaining about rape within minutes of her separation from the appellant and that Mr. Steer had then gone to the area and received from the complainant an account substantially the same as that which the complainant was to give to the jury.  Mr Steer was then instrumental in involving the police.  On the day of the trial, Mr Steer did not attend court.  Mr Jones told defence counsel of the difficulty.  Having considered the matter, both sides were content for the trial to proceed in his absence.  Now, Mr Newcombe submits that it was such a grave error on the part of defence counsel to agree to proceed in the absence of Mr. Steer that the safety of the conviction is put in issue.  He seeks to rely on Clinton (1993) 97 Cr App R 320 in which Rougier J, giving the judgment of the Court, said (at page 326):
“…..exceptionally, where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense point the other way, it may be open to an appellate court to set aside the verdict….”
18.	Mr Newcombe says that his judgment would have been to apply for an adjournment so as to procure the attendance of Mr Steer.  We are wholly unimpressed with this ground of appeal.  We take the view that the judgment of trial counsel was not only tenable; it was the judgment which would have been made by most conscientious and experienced counsel in the same circumstances.  We are fortified in that conclusion by the fact that a third member of the Bar (who advised the appellant between trial counsel and Mr Newcombe) wrote a lengthy advice which included this paragraph:
“I have no hesitation in stating that faced with the same situation I would have advised Mr Mitchell not to have Steer present at court – it is extremely difficult to see how the defence could have obtained any advantage in insisting on his attendance.”
19.	It is true that the witness statements of Mr Steer (the first of which was given in a false name) contained material which may have enabled defence counsel at least to cast doubt on the circumstances in which the complainant came to be in the Hagley Road on the night in question.  On the other hand, the witness statements contained a graphic account of recent complaint, the absence of which before the jury can only have benefited the defence.  Mr Newcombe says that if he had been trial counsel he would have wished to cross-examine Mr Steer about the sabbatical from prostitution.  Maybe he would, but that is not a subject covered in Mr Steer’s witness statements and any answers he may have given (assuming that the questions had been allowed under section 41) can only be a matter of speculation at this stage.
20.	The appellant having waived privilege, we have the benefit of the comments of defence counsel at trial. He stands by his judgment and refers to another passage in the advice of his immediate successor describing that judgment as “overwhelmingly the correct decision”.  It is true that he does not refer in terms to the instructions of the appellant.  However, we do not feel able to conclude that counsel’s judgment resulted in a decision taken over the head of the appellant.  In any event, and in our judgment, this little side show has no bearing whatsoever on the safety of the conviction.
CONCLUSION
21.	It follows from what we have said that we are satisfied as to the safety of the conviction.