Neutral Citation Number: [2007] EWCA Crim 942
Case No: 2005/06283 C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT 
HIS HONOUR JUDGE RENNIE

Royal Courts of Justice
Strand, London, WC2A 2LL

26th April 2007
Before :

LORD JUSTICE HOOPER
MR JUSTICE GIBBS 
and
MR JUSTICE RODERICK EVANS
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Between :

	Malcolm Boulton 	Appellant	
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	The Crown 	Respondent	
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(Transcript of the Handed Down Judgment of
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Miss J Greenberg (instructed by Swain & Co) for the Appellant 
Mr J Price  for the Respondent 

Hearing date : 23 April 2007
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Judgment

LORD JUSTICE HOOPER: 
1.	On the 30 September 2005 in the Crown Court at Lewes before His Honour Judge Rennie and a jury the appellant was convicted of rape (counts 1-3); false imprisonment (count 4); putting people in fear of violence contrary to Section 4 of the Protection from Harassment Act 1997 (count 5) and conspiracy to intimidate witnesses (count 6).  There were two co-defendants on count 6 only. Both were convicted. The appellant appeals his conviction on counts 1-5 by leave of the full court, presided over by Rose LJ (VP).  
2.	There are two grounds of appeal. The first relates to the trial judge’s ruling that the evidence of the complainant could be read to the jury. The judge found, in accordance with section 116 of the Criminal Justice Act 2003 that she was not giving oral evidence through fear.
3.	The second ground relates to the judge’s decision to permit two witnesses to give oral evidence about the defendant’s bad character. We shall call the two witnesses D and S. 
4.	Shortly before the start of the appeal the respondent served on the appellant a transcript of a further video recording of the complaint’s interview with the police at the time that the complaints were made. Miss Greenberg, Queen’s Counsel who appeared for the appellant but had not done so at the trial said that the failure to disclose did not give rise to a fresh ground of appeal.
5.	We turn to ground 1. The challenged ruling was given by the judge on 9 September 2005. To assist the judge in reaching his decision the respondent called an officer, DS Horner, who gave a detailed oral and written account of his dealings with the complainant in the period leading up to the ruling. We were also provided with material from DS Horner relating to his dealings with her after the conviction of the appellant. There is nothing that happened post-conviction which could undermine the correctness of the ruling reached by HHJ Rennie or provide fresh relevant evidence to be taken into account on the appeal. HHJ Rennie also had a transcript of a hearing before HHJ Kemp on the 29 July 2005. The appellant called a witness on the voir-dire but her evidence is not relied upon by the appellant as a ground for attacking the ruling. 
6.	It is necessary to say something briefly about the chronology of the events. Count 1, rape, was alleged to have occurred on 30 June 2004 and counts 2 and 3 (both rape) were alleged to have taken place on 3 July 2004. The offence of false imprisonment was alleged to have taken place on 5 July 2004 and it was on that date that the appellant was arrested. He has been in custody ever since. He was interviewed and denied the offences. The event alleged to constitute count 6 of the indictment, conspiracy to intimidate witnesses took place on 8 July 2004 and thereafter there were further telephone calls to the complainant from the appellant in custody. The trial was due to start in February 2005 but, most unfortunately, was taken out with the consent of all parties. Subsequently the trial was fixed for 5 September 2005 and adjourned for two days because of the non-attendance of the complainant. 
7.	In his challenged conclusion HHJ Rennie said:
“I am completely satisfied, having considered all of counsels’ submissions and bearing in mind the relevant law, section 116(2)(d) has been satisfied and that [the complainant] is absent from court through fear. I am further satisfied that she is frightened of Mr Boulton and what might happen to her, her family or friends if she were to testify, and this is the very mischief which this piece of legislation is designed to protect against.”
Having reached that conclusion the judge went on to consider whether, taking into account, amongst other things, the appellant’s rights under Article 6 to a fair trial, he should give leave to the prosecution to read the statements. He gave that leave. The statements in an edited form were read to the jury who were also shown passages from the video recordings, being passages chosen by both counsel. 
8.	It is unfortunate that the judge did not set out the reasons for reaching his conclusion other than by what appears to be an acceptance of (or at least some of) the submissions made by the respondent. This kind of decision is a particularly difficult one and may well lead to an appeal. The fuller the reasons which a trial judge can give for reaching the conclusions, the easier it is for this court to re-examine the issue both at the leave stage and at any full hearing.  
9.	There is no dispute that this court must now examine the conclusion of the trial judge and decide whether that conclusion is one which he could properly have reached. 
10.	Miss Greenberg accepted that in the passage which we have read out, the judge was finding not only that the complainant was absent from court through fear but also that that fear had been caused by the appellant either directly or indirectly. Miss Greenberg submitted that both conclusions were conclusions which the trial judge could not properly reach. She accepted that if the trial judge was entitled to reach those two conclusions then the appeal was not likely to succeed. She did list for us a number of matters about which the appellant might have wished to cross-examine the complainant if she had given evidence. The judge took the view that the appellant had denied the allegations in interview, that he could give evidence if he chose to do so and challenge the various allegations made against him by her. In fact he did give evidence at the trial and did deny all her allegations. 
11.	At the conclusion of the appeal hearing we announced our decision that the appeal would be dismissed. In our judgment the judge was quite entitled to reach both of the challenged conclusions; on the basis of those conclusions it follows, as Miss Greenberg effectively conceded, that the judge was right to permit the complainant’s evidence to be read to the jury. 
12.	We turn therefore to the first conclusion that the complainant was absent from the court through fear. There was no doubt before the trial judge and it was not disputed before us that the complainant had deliberately put herself in a position whereby DS Horner was unable to find her and bring her to court to give evidence in September 2005. The evidence showed that she had taken elaborate steps to conceal her whereabouts from him. 
13.	Miss Greenberg submitted that the complainant had done this not because of fear but because of an unwillingness on her part to submit to the trauma of giving evidence against the appellant.  Mr Price upon whom we did not call in relation to this ground, submitted both to the judge and to us that the judge was entitled to reach the conclusion which he did. In his helpful skeleton argument he took us through the history of the proceedings. It may well be that the complainant had the additional reason for not giving evidence to which Miss Greenberg refers. That, however, does not in our view resolve the issue, namely whether the judge was right to find that the complainant was absent from the court through fear. 
14.	Miss Greenberg rightly conceded that if the question was one that had to be answered by reference to the period ending in about September 2004 then the judge’s conclusion that she was absent through fear and that the fear had been induced directly or indirectly by the appellant, could not properly be challenged. 
15.	That is an important concession and we summarise briefly why Miss Greenberg was right to make that concession. We first give a brief account of the facts as alleged by the complainant herself. 
16.	According to the complainant she had first met the appellant in April 2004 and having entered into a relationship fell pregnant by him. Although he had previously been kind to her, his behaviour towards her changed and he frequently became violent. Her account, assuming it to be true as the jury found it was, gave what can be described as a typical account of domestic abuse at the hands of the male partner coupled with three rapes.
17.	On 5 July police officers responded to a call from the complainant. They found her in a distressed state within a caravan that was being towed by the appellant driving a van. On later medical examination she was found to have bruising and cuts to her face and shins but no physical injuries to her genitalia save for some tenderness. It was the prosecution’s case, based upon the evidence of the complainant, that the appellant had kidnapped her from a travellers’ site two days earlier. She had been raped within the previous forty eight hours and on her account subjected to multiple assaults in the previous four weeks. 
18.	On 30 June 2004 the complainant was due to attend a clinic to have an abortion but, as she was leaving the travellers’ site, the appellant threatened that if she did so, he would stab her. She cancelled her appointment. Later that night, according to her, he became violent and punched her repeatedly until she blacked out. Whilst she was on the ground he raped her (count 1), she tried to escape but failed and he took her back to his caravan where she passed out. On 3 July having moved to a different travellers’ site with the appellant he was again violent towards her and dragged her to an overgrown area by some railings where he subjected her to verbal abuse and then raped her (count 2).  He then dragged her to his van, drove her to a wooded area where he again raped her (count 3). 
19.	The following day the appellant used an axe to smash the windows of her caravan whilst she was inside. She armed herself with a bread knife to prevent him from raping her. On 8 July 2004 according to her the appellant removed the knife from her, hitched her caravan to his caravan and drove away with her inside. In the journey she made calls to the police for help. The defendant claimed an alibi in respect of what had happened on the 30 June. S was called to disprove that alibi and she also gave evidence, to which we return later, that the appellant had sent her threatening text messages. 
20.	Miss Greenberg rightly submits that the facts as alleged by the complainant were by themselves insufficient to permit the judge to make the ruling he did. Otherwise, as she submits, in any case of domestic abuse of this kind, the prosecution would be entitled to read the complainant’s statements. On the other hand when coming to examine the issue of fear, the facts as recounted by the complainant of the various offences with which the defendant is charged are a relevant backdrop. These, on the jury’s verdict, were terrible offences demonstrating the worst kind of abuse by a male towards his partner. In addition to the evidence of the rapes and kidnapping the complainant gave evidence of a number of incidents which formed the subject matter of count 5. In early June of 2004 on two occasions the appellant, according to the complainant, slapped her with force. The complainant attended a doctor’s surgery. According to his note she told him on that day that her boyfriend had hit her on the face. He noticed that she was tender to the left side of the face. On Tuesday 8 June she was seen at an ENT clinic and she complained of having been assaulted on 7 June. She said that both ears were painful and her hearing had deteriorated. Dry blood was observed close to the right eardrum the left eardrum had suffered a “dry perforation”. That assault had occurred the day before. The complainant had walked from the site to a public call box and rung for an ambulance. A police officer had attended. The complainant had refused to tell the officer who had assaulted her and gave an inaccurate account of what had happened. She told the police that she did not want the appellant to be arrested. 
21.	The third incident upon which the prosecution relied had taken place in mid June of 2004. Apparently angered at the complainant being out with another man the appellant had threatened the other man with a baseball bat. He told her not to call the police, not to associate with other men. He said: “it is the way of the gypsy”. 
22.	The fourth incident related to the threat to stab her when she told him she was going for an abortion. 
23.	A fifth incident occurred, so she said, when they were travelling in his van. They argued and he punched her to the side of her head with a clenched fist. She ran out from the van into the road and flagged down a car. He caught her. Calling her a slag and a whore, he kicked her hard in the backside and again punched her to the head. She was not rendered unconscious but she did feel dizzy. There was independent evidence supporting the fact that she had tried to flag down a car.  The driver of that car described her as “distressed, panicky and in a confused state and crying.” Thereafter, as is not unknown in cases of domestic violence, the complainant refused to name her assailant and declined properly to be examined by the paramedic. The witness described driving the complainant back to the site and the complainant’s reaction when she saw the appellant and his reaction to her. According to the witness the appellant said to the complainant “get out of the car, get the fuck out of the car”.  To the witness the appellant said: “if you come back here again I’ll break your fucking legs”. We should add that the appellant denied any of this. 
24.	The sixth incident took place in the early hours of Saturday 26 June 2004. Police attended the site and spoke to the complainant. She said that the appellant had become angry when she refused to let him in the caravan and that he had threatened to set it on fire. The police apparently searched for him without success. On the 30 June there were two 999 calls from the complainant telling the police that the appellant was threatening to kill her. She was asking for police to come to the site. In addition to the evidence from her there was evidence of her confiding in other residents on the site. In particular she told a witness U that the appellant had hit her and that she was too scared to get away from him. 
25.	In the words of the prosecution opening, the appellant, having been remanded in custody, thereafter did his best from within the prison to scupper the prosecution including recruiting his co-defendants to intimidate witnesses (count 6).  U described one of the co-defendants coming to his caravan and saying “Malcolm knows that you have made a statement to the police you should do him a favour and tell the police he is an all-right guy and that she is a stupid cow and you should reverse your statement. You can’t rape your wife anyway. He is a good man, if he gets sent down for this then there will be trouble. He would do anything for anyone and if he does get sent down he will be out in a few years and he will come looking for you and burn your caravan down. We look after each other.” U’s partner heard words to a similar effect. One of the co-defendants in interview admitted threats to burn the caravan. Within less than 24 hours of this visit U, his partner and their children had left the site. 
26.	In early July the complainant received a message on her mobile phone made by the co-defendant telling her to drop the charges. On 19 July U paid a return visit to the site and was shown a letter from the appellant in which the appellant had written “I have now read the statements and I know that [you] has grassed on me”. The appellant was telling the reader that he was offering £5,000 to anyone who could tell him of the whereabouts of the complainant. He also wrote to the complainant from prison on about 12 July 2004 saying that he had “been a cunt” to her and that he was sorry about it. He referred to having £7,000 in the bank. Police officers found a letter from the appellant to the two co-defendants expressing his frustration and saying that he hoped that both of them could sort things out. Another letter made reference to her dropping her statement and stated that U was lying.
27.	The police obtained recordings of seven calls made by the appellant. On 7 July he telephoned the complainant saying “talk to me please”. There is reference to him wanting her to withdraw the charges, reference to the statement made by U and discussion of the fact that the complainant could not be located. 
28.	Such were the nature of the threats being made against the complainant, either directly or indirectly by the appellant that on 22 July it was arranged that she should have full witness protection. In October the complainant left witness protection. She was to give a full explanation as to why she left witness protection when she appeared before His Honour Judge Kemp in July 2005. 
29.	It is quite clear that during this period the appellant was taking steps to find out where she was. He was using threats and his financial resources to try to stop her giving evidence. He tried to stop U from giving evidence.  Much of this evidence was supported by independent testimony. We should add that as the judge knew the appellant had a number of previous convictions. In particular for threats to kill, he had been sentenced to imprisonment for 30 months. That related, as the judge said, to making threats to kill the mother of a woman with whom he was having a relationship. 
30.	The judge referred to Mr Price’s argument that it is a logical possibility that something did happen between November 2004 and July 2005 to make her move from not wanting to give evidence to an absolute refusal to give evidence. Miss Greenberg attacked that part of the judge’s ruling, arguing that a logical possibility was insufficient. But in context we are satisfied that the judge was merely repeating what Mr Price was saying without actually reaching a conclusion about it. 
31.	On 12 November she made a statement expressing an unwillingness to attend court. At no time has she said that her allegations were untrue. 
32.	In the statement on 12 November she said that she had been told that the trial was due to start at the end of February 2005, that she was experiencing a lot of emotional stress and pressure by having to recover from the offences, change her whole life. She faced the prospect of having to relive it all at court. She said this was the main reason why she did not want to give evidence. The complainant said that she had not been put under any outside pressure to come to this decision which she had made of her own free will. She accepted that she might be called to give evidence. If that were to happen she said that she would like to have a screen “because I do not want to be visually intimidated by him while I give my evidence”. She said that the appellant “is a large man who has beaten me in the past and he would try to intimidate me.” She also referred to wanting a live link. Miss Greenberg placed much reliance on the statement. 
33.	Thereafter, in early 2005 the complainant took steps to conceal her whereabouts from DS Horner. It appears that she may well have gone to India at some point. In June 2005 however, she returned to this country and signed on with the Department of Social Security. DS Horner was able to track her down and she was issued with a summons to attend before His Honour Judge Kemp on 29 July. She attended. That was the last direct contact of any type between her and Detective Sergeant Horner until after the trial. Miss Greenberg points out that the complainant appears to have thought that she was attending to give evidence at that time although the complainant must have realised when she did attend that that was not the purpose. Miss Greenberg submits that the fact of her attendance shows that, at this time, her reluctance to give evidence was not because of fear. As Miss Greenberg points out, the purpose of that hearing was to seek to persuade the complainant to give evidence and there was no significant examination of the veracity of the fears which she was expressing. 
34.	During the hearing of 29 July she was asked by the judge whether she would attend the trial due to start on 5 September. To this she replied “that is what she was here to discuss”. The judge asked for her current feeling. The complainant said “I’m under threat if I testify”.  When asked from whom, she said: “from the people that I will be testifying against, I’ve been told through various sources that if I testify, friends of mine will be… I suppose killed you could say.  … Also these people know where my parents – where my mother lives, they have my dad’s telephone number, and I have been told that if I go ahead and testify then, um, the repercussions for me personally and for my family will be very serious.” Those threats, she said, did not come directly from any of the three defendants but indirectly. She said that she did not have sufficient faith in the police and she was very unhappy about the circumstances of the witness protection scheme. When the judge offered her protection she said that the judge was asking her to put her family and her friends and her own personal safety at very severe risk. She said that it was ridiculous to expect that her whole life should be destroyed. She understood that the alternative was that the defendants might get away with it. The judge pointed out to her that it was a very serious case and that the prosecution could only do it with her co-operation. To this she replied that she understood that “I am not averse to duty, your Honour I am just averse to martyrdom.” She declined to say who it was that was making threats.
35.	Miss Greenberg relies heavily on her unwillingness to name the people who were threatening her, her unwillingness to co-operate with the police in making inquiries into those threats and critical also of the police decision not to investigate the matter independently. She said that they could have made inquiries of her family to find out what threats if any had been made. In our view, contrary to the submissions of Miss Greenberg, there was ample evidence of her continuing fear of what might well happen to her if she gave evidence either orally in court, behind a screen or through a video link. We do not accept the argument that her failure to give further details or the failure of the police to investigate the matter should have led the judge to reach the conclusion that she was not in fear. We accept that her unwillingness too give details is a factor to be taken into account, but her reference to “martyrdom” shows clearly her state of mind as at July.
36.	Thereafter she made herself scarce and, notwithstanding the best efforts of D S Horner, she could not be traced in time for the start of the trial. 
37.	In our judgment the judge given the matters to which we have referred, was entitled to come to the conclusion which he did, indeed we doubt whether any other conclusion was possible. We also take the view that he was right to conclude that the threats of retaliation were coming directly or indirectly from the appellant himself. Although we accept that there is no evidence of any threats made by him after she left witness protection nonetheless her state of mind as at the time in July and September 2005 has to be assessed against the history which we have set out in some detail.
38.	In the light of these conclusions ground 1 must fail. We turn briefly to ground 2. Miss Greenberg particularly criticised the ruling of the trial judge that D should be allowed to give evidence of the appellant raping her. The judge gave his ruling on 12 September 2005. He said that D’s evidence was that she and the appellant were in a sexual relationship in December 2003 only six months before the present allegations were made and she was pregnant with his child. Having told him of her decision to end the relationship,  he kidnapped and falsely imprisoned her and also raped her. Miss Greenberg accepted that under section 101 of the Criminal Justice Act 2003 that evidence was clearly admissible. In fact the appellant had been acquitted of all charges arising out of D’s allegations. Miss Greenberg accepted that in the light of Z  [2000] 2 AC 483 that did not prevent the evidence from being admissible. In our view there were sufficiently similar features between the allegations made by D and the allegations made by the complainant that the acquittal did not prevent D’s allegations from being admissible on the trial of the appellant. 
39.	The judge rightly, in our view, accepted the submission that there was no evidence of collusion. Miss Greenberg submitted that had the complainant given evidence then she could have been questioned about whether she knew about the D incident. Even if she had known, that would have been a long way from collusion on the facts of this case.
40.	The central thrust of Miss Greenberg’s argument is that it was the cumulative effect of allowing the complainant’s evidence to be read and allowing the prosecution to call the evidence of D was such that a fair trial was not possible. We do not accept this argument. Given the judge’s findings in regard to the reading of the complainant’s evidence, we see no reason why the prosecution’s hands should somehow be tied when it came to the evidence of D. D gave evidence, she was cross-examined and the defendant gave evidence denying her allegations.  
41.	Miss Greenberg also complains that the judge did not make it clear to the jury that the bad character evidence given by S relating to text messages could not be used by the jury when considering counts one through to four. We have looked at the summing up and in our view the judge made this clear to the jury.   
42.	Finally we turn to a point made by Miss Greenberg which we find does have some merit. The jury were told that the appellant had been acquitted of the allegations made by D. The judge properly explained why a jury might acquit and then told the jury that the fact that the appellant had been acquitted by another jury could not assist them in resolving the issues raised by D’s evidence. Mr Price has accepted that the judge went too far in saying that the acquittal was completely irrelevant. He submits, and we agree, that the better course would have been to have told the jury that the acquittal meant no more than that the jury were unsure of the evidence given by D. That said, if there was an error, it could not possibly affect the safety of the conviction. 
43.	For these reasons ground 2 also fails and we dismiss the appeal against conviction.