Neutral Citation Number: [2012] EWCA Crim 1845
Case No. 2012/01714/D5
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  27  March  2012

B e f o r e:

LORD  JUSTICE  MOSES

MR  JUSTICE  CALVERT-SMITH

and

MRS  JUSTICE  SHARP  DBE
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R E G I N A

- v -

DZ & JZ
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Miss Darlow appeared on behalf of the Applicant

Miss J Flanagan appeared on behalf of the First Respondent
Miss K Charles appeared on behalf of the Second Respondent
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Judgment

LORD JUSTICE MOSES:  
1.  This is an appeal pursuant to section 58 of the Criminal Justice Act 2003 against a terminatory ruling made by His Honour Judge Murphy at Woolwich Crown Court on 20 March 2012.  The judge decided that two of four defendants, DZ and JZ, should on his direction be acquitted of offences respectively of rape contrary to section 1(1) of the Sexual Offences Act 2003 ("the 2003 Act"), and of engaging in sexual activity in the presence of a child contrary to section 11(1) of the 2003 Act.  

2.  The Crown contend that there was evidence against both on which a reasonable jury properly directed could convict and that in those circumstances pursuant to section 59 the appeal should be expedited, and that the case should not have been stopped against the two respondents.

3.  The case concerned an allegation of joint sexual abuse by four defendants against a 13 year old girl, CB, in a basement of an underground car park in the flats at Southampton Way, Peckham.  The offence was alleged to have occurred on 14 June 2010.  It is of significance for the purposes of this appeal that two of those involved, DS and JM, had gone to the basement.  DS has admitted, by way of a plea of guilty, the oral rape of CB.  Although JM says that he wished to indulge in sexual activity with CB, she says that she refused and he persisted; whereas he says that once she had declined the offer he did not go ahead.

4.  The prosecution evidence from CB and her friend SS, who was also 13, is that they came across a group of males in the car park area and that CB was dragged into the basement room and there subjected to sexual assault.  CB says that amongst those who sexually assaulted her was DZ (noticeable for the spots on his face), who orally raped her, and JZ (noticeable for his ginger hair and pale complexion), who sat on a mattress alongside her and masturbated.  

5.  There is no dispute that the respondents DZ and JZ were on the scene.  That is of significance in this appeal.  But both deny any sexual activity, either consensual or against her will, against any girl that afternoon.  Neither accept that they were in the basement other than, in the case of DZ for a very short time, and in the case of JZ, on the periphery outside looking in.

6.  The basis upon which His Honour Judge Murphy, in a ruling that set out with care his reasons, stopped the case as against the two respondents was, in essence, that this was a case where the identification by CB of those two assailants was such that no jury properly directed could convict.

7.  We remind ourselves that the test derived from R v Galbraith (1981) 73 Cr App R 124 has recently been looked at again in R v F(S) [2011] 2 Cr App R 28 (page 393), where the court emphasised that the question is whether there was evidence on the basis of which the jury could convict and the question was not whether the judge thought it was likely that the jury would convict or whether he himself would convict.

8.  The judge was concerned as to the quality of the identification evidence.  The difficulty with that approach stems from his view that this was an identification case.  In our view it was not.  It is plain from the evidence that both the Z brothers (for they were brothers) accepted presence at the scene, although JZ did not accept being inside the room, and DZ accepted being there for only a short moment.  The issue for the jury, therefore, was whether CB was reliable and truthful in identifying them as sexual assailants.  

9.  In those circumstances it is important to bear in mind what, at the stage that this case has reached, the two respondents said about it when interviewed on 16 and 17 June.  From the point of view of the prosecution, both showed an accurate and detailed knowledge of what was going on within the room.  Neither had a very happy explanation for being there.  DZ said he went there because he was waiting to make a phone call (or some such explanation), and JZ sought to explain it because of the inclement weather and the fact that he was feeling cold.  DZ said that he went there on his own.  JZ said that he was with his brother and one other young man.  However, both saw sufficiently inside accurately to be able to describe both CB and her friend SS and what they were wearing.  Neither knew the name of the girls, although they may have seen them around before.  The evidence of what they said to the police was, in our view, powerful evidence, that they were not merely on the periphery but in the room.

10.  In the course of DZ's interview it is apparent that, without any suggestion or prompting from the police, he was able to describe moments when mobile phones were flashed in order to light the dark basement space, although there was conflicting evidence about it.  In our judgment there was, therefore, powerful evidence of the presence of the two respondents within the basement.  

11.  Thus the question for the jury was whether CB was telling the truth in describing their participation in the sexual attack upon her, as she described it to be.  Viewed in that way, many of the features on which the judge relied in withdrawing the case from the jury merely go either to the accuracy or the truthfulness of what CB was saying.  For example, it is apparent that both she and her friend SS had put their heads together to conceal from the police the fact that they had both been to the basement before, probably to engage in consensual sexual activity with friends of theirs.  That casts doubt upon their reliability and truthfulness.  Moreover, the judge was concerned that they had put their heads together in order to identify the perpetrators.  There was conflicting evidence about the extent to which that had happened at the time of a video identification procedure which took place much later on 26 August.  It was suggested that CB had told SS that JZ appeared, as selected by the computer, as number 5.  But that does not seem to us to be the main point.  

12.  The main point is that there was evidence that the two girls had put their heads together to identify the perpetrators well before then.  There was evidence that, in seeking to identify DS (who had subsequently pleaded guilty), they had searched for and found his photograph and had shown it to a lady who rescued them immediately after the incident and took them away by car.  There was further evidence that through JM, whom CB knew, they had traced Facebook photographs and identified through Facebook the respondent DZ, who apparently CB knew as "D", and also JZ (although he was identified only as the one with the ginger hair).  There was certainly evidence that they had discussed who the perpetrators were.  It is significant that their discussion led in part to the correct identification of two out of the four involved, namely the defendant DS (who has pleaded guilty, although he does not admit the full offence of oral rape) and JM (who accepts that he made sexual approaches but declined to do anything unlawful when they were rebuffed).  

13.  The judge was clearly concerned at what he describes as "collusion", and clearly concerned that the extent of that collusion may never be known.  He commented that in the result of that state of the evidence he was unsure how to direct the jury.  He added to that the real possibly (as he foresaw it, although it had not been canvassed in evidence) that the two girls had deliberately identified older boys so as to conceal the part of younger boys, just as they had chosen to conceal from the police their earlier visits to the basement.

14.  In our view none of those reasons on which the judge relied formed a basis for stopping the jury from their task which is to sort out this conflicting evidence in the light of warnings as to the danger which it presented.  Of course it would be important for the jury to take into account the discussion that the two girls had had as to who was responsible for what had gone on in the basement that late afternoon.  Further, they would have to take into account the extent to which, as SS appears to have volunteered in cross-examination, she was merely saying to the jury what she had been told to say by CB.  In short, nothing that they said may be uninfluenced by what the other had said; and nothing that they had said to the police as a result of the identification procedure may have been of value in the light of their earlier discussions.  The danger is that the identification procedure was merely a process by which they sought to recollect the appearance of those they had earlier picked out through Facebook.  However, we reject any notion that the mere fact of that evidence, which may be powerful evidence of discussion and collusion, forms a basis upon which the case should be stopped.

15.  There will be many cases where witnesses, particularly young witnesses in cases such as the present, will either have heard "from the street" who was in the frame for a particular offence and will have discussed it long before they ever come forward and speak to the police.  It is, in our view, an uncomfortable notion that where that common occurrence takes place the judge is under an obligation to stop the case.  This is all powerful grist to the mill of the skilful defence counsel who appear in this case, which will no doubt be deployed before the jury.  

16.  For those reasons we reject the notion that the jury should be deprived of considering these issues.  They will have to sort out questions of reliability and truthfulness in the light of what went on before the identification procedure.  In our judgment the judge was wrong to exceed to the submissions that had been made.  In those circumstances we shall allow the appeal.

17.  We order that the proceedings be resumed pursuant to section 61(4)(a) of the Criminal Justice Act 2003.

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