Neutral Citation Number: [2013] EWCA Crim 137
Case No: 201201111 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 25 January 2013
 
B e f o r e:

LORD JUSTICE ELIAS

MR JUSTICE FIELD 

RECORDER OF CARLISLE ‑ HIS HONOUR JUDGE BATTY QC
(Sitting as a Judge of the CACD)
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R E G I N A 

v 
 
KIRIT RABHERU
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Mr L Orrett (Solicitor Advocate) appeared on behalf of the Applicant

Mrs M Prior appeared on behalf of the Crown  
 
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J U D G M E N T 

1.	LORD JUSTICE ELIAS:  The appellant appeals against conviction by leave of the single judge against his conviction on a single count of controlling prostitution for gain, contrary to section 52(1) of the Sexual Offences Act 2003.  He was convicted following a 13‑day trial on 20 January 2012 before HHJ Pert QC in the Crown Court at Leicester.  It was a unanimous verdict.  He was sentenced to 4 years' imprisonment.
2.	The trial started against four defendants, Georghe Avram, Georgiana Toma, Claudia Ghenciu and the appellant.  Georghe Avram, Georgiana Toma and the applicant faced counts of trafficking into the UK for sexual exploitation (count 1), trafficking within the UK for sexual exploitation (count 2), controlling prostitution for gain (count 3), false imprisonment (count 4) and kidnapping (count 5).  Claudia Ghenciu faced counts 3 and 4 only.  Georghe Avram and Georgiana Toma faced an additional count 6 of conspiracy to do an act tending and intending to pervert the course of justice.  
3.	Part way through the trial (in fact after the claimant had been cross‑examined by all the defendants), Georghe Avram was re‑arraigned and pleaded guilty to counts 3 and 6.  Georgiana Toma was re‑arraigned on the same day and pleaded guilty to count 3.  Those pleas were acceptable to the Crown, but the trial continued against the applicant and against Ms Ghenciu, although only on count 3.  The remaining counts against those two defendants were withdrawn from the jury.  
4.	The conviction of Georghe Avram and Georgiana Toma on count 3 of course established that there was, as the Crown were contending, a plan to control the complainant for the purposes of prostitution.
5.	The facts are these.  On 24 November 2010, Georghe Avram and Georgiana Toma, along with David Avram (Georghe's brother), travelled to Luton Airport from Romania.  They travelled with the complainant, who was a fellow Romanian citizen.  The complainant had understood that she was going to work in a restaurant which the Avram family were connected with, that she would earn enough money to fund her travel and accommodation and pay them back, and thereafter would be able to save up money.
6.	The Crown's case was that they travelled from Luton by coach to the appellant's home address at Shirley Street in Leicester.  Thereafter the complainant remained at the appellant's home.  After a week or so, she was taken in a car to a brothel by David Avram, Georghe Avram, Georgiana Toma and the appellant.  The appellant was driving the vehicle.  She had been blindfolded by Georgiana Toma and Georghe Avram.  When she arrived, they told her that she would be working there.  She was obliged to work in two clubs, performing sex acts for money.  She said that she was threatened that if she did not work, her daughter would be harmed.  The appellant and David Avram would take her to the clubs and collect her.  
7.	Claudia Ghenciu, the co‑defendant, was a prostitute who worked at one of the clubs.  She kept an eye on the complainant for Ms Toma, and it was the prosecution case that she took money from the complainant after she had performed sexual acts for men.  She was in effect, it was alleged, the eyes and ears of Ms Toma and was there to ensure that the money earned by the complainant from her sexual activities was recovered and given to the defendants.
8.	The complainant also alleged that she was obliged to have sexual intercourse with the appellant as payment for rent.  She said she was not allowed to leave 31 Shirley Street and she was never left alone.  However, in the early hours of 11 December 2010 she escaped from the Venus club, one of the clubs where she was required to work.  She was assisted by another prostitute, Raluca Dragoi, in whom she had confided, and she hid in Raluca's flat.  Within a short time of her disappearance, three males including the appellant arrived at the club looking for her.  Raluca gave evidence to the effect that it was the appellant and she identified him in an identification parade.
9.	The appellant waited outside whilst two Romanian males tried to find her unsuccessfully.  Later that day, Raluca took the complainant to Leicester train station and put her on a train to Luton so she could get a flight to Romania.  She bought a ticket to Romania, but in fact it was for the following day.  She went to the Romanian Embassy and asked for assistance, and went back to the airport the next day but missed the flight.  At that point she rang Ms Ghenciu to ask for her assistance.  Ms Ghenciu arrived at the airport with the appellant.  They tried to get her to return, but she refused.  She then again asked for help at the Embassy, who proved to be of little assistance to her.  She met a young man in London and stayed at his flat for a few days.  When she came out of the flat, indeed on the first occasion she did so, she said that a vehicle pulled up and the appellant, the Avram brothers and Ms Toma were in it.  They effectively kidnapped her and took her to a railway station in London.  Her hands were tied together.  Subsequently she got on a train to Leicester with Ms Toma.  The train was just about to leave when the complainant ran out through the doors and escaped.  In due course she contacted the police and subsequently these charges were brought.
10.	The case for the appellant, in brief, was that this was all fabrication.  He said that he had never held her against her will.  He had been asked by the Avrams' uncle, Aurel Avram, if he could help his nephews Georghe and David and their girlfriends find a property to rent.  So he let them stay with him for a few nights.  He had no idea that there was anything untoward going on.  The complainant was free to move about as she chose.  He never slept with her.  He never had sex with her.  The Avrams and the girls always came to and from the houses as a foursome.  He did not give her a lift by herself.  On occasions he did drop the four off.  As far as he was aware, she was working at a shop.  He was unaware that she was working in a club.  He said the last he had seen of her was on 8 December at Primark.  She had wanted a leather coat and it had been too expensive and she had run off.  He denied that he had gone to the club on the 11th, as Raluca had claimed.  He agreed that he had gone to Luton Airport with Claudia Ghenciu.  She had rung him and asked him for help and he had sought to assist her.  He denied having been in London or being part of any act of kidnap of the kind described by the complainant.
11.	There was certain bad character evidence which was adduced following an application by the Crown.  This related to an alleged attempt by the appellant to introduce a different Romanian girl into prostitution at another unconnected massage parlour.  Evidence was given by a Ms Larvin.  She said that a man had come in, paid a £10 entrance fee and gone off with one of the girls.  Later he spoke to her about accountancy services.  He gave his name as Tariq.  He apparently indicated that he would be interested in being her accountant.  She said she did not need an accountant.  He gave her a business card, which he produced to the court.  She said he asked what other girls she had.  She explained she had different girls on different days.  He said friends of his were trying to get work and he mentioned girls from Romania.  She mentioned Romania and Lithuania.  He corrected her, saying only Romanian girls.  She asked in a jokey way whether he was an accountant pimping Romania and Lithuanian girls on the side.  His reply was to say it was just Romanian girls, rather than Romanian and Lithuanian.  She did not accept his offer, although he came back the following day, she said, with a girl in her 20s whom she believed to be Romanian.  The appellant denied that account.  He accepted that he had gone to this massage parlour, that he had asked whether he could be the accountant, that he had had a proper massage, but the rest of her account was untrue.
12.	We turn to the circumstances giving rise to the grounds of appeal in this case.  It arose when the co‑defendant was being asked questions in cross‑examination on behalf of the appellant.  In respect of one of these questions, she did not, it seems, answer the question directly, but she did volunteer to the court that the defendant "used to be her pimp".  The appellant's counsel says that there was, in addition, a rather sinister sounding gloss which suggested that she could give more information.  Nothing more was said about that until an application was made - it is not entirely clear whether it was later that day or the following day but it does not matter that much - for the jury to be discharged in view of this evidence having been given.
13.	The case for the appellant before the judge was that here was a man of good character who was alleged by the co-defendant to have done very much the same thing as the Crown said he had done in relation to the complainant.  It was potentially highly prejudicial evidence, and in the circumstances the judge should discharge the jury.
14.	The judge rejected that application.  His reason for doing so was that he concluded that, in substance, this was bad character evidence.  It ought ideally to have been the subject of a formal application, but nonetheless he was satisfied that it was properly admissible as bad character evidence, presumably under section 101(1)(c) of the Criminal Justice Act 2003 as explanatory evidence, although the judge did not specifically refer to the section.  
15.	The judge said this:  

i.	"It seems to me that the second defendant's case [that is Ms Ghenciu] and in particular her fear of the first defendant and other named persons referred to by both her and by him could not properly and fairly have been put before the jury without her being free to relate the circumstances in which she came to England, met the first defendant and came to know these people."  

16.	Accordingly, he concluded that if the application had been made, the evidence would have been admitted and in those circumstances there could not possibly be any basis for discharging the jury.
17.	The judge in his summing up did recount this evidence briefly to the jury.  By then, there had been some cross‑examination Ms Ghenciu by the Crown, and a fuller explanation had been given by her as to precisely what had occurred when she had first come to the UK.  The judge described it in the following way (the reference to Karim is to the appellant): 

i.	"She had talked about him on her first date of work and Claudia Ghenciu said, 'I know Karim.  He used to be my pimp'.  Cross‑examined by Mrs Prior on behalf of the Crown she said that she knew Georgiana Toma from two or three years ago at the Bunnies club.  She was a friend of hers.  She did not really know Georghe Avram but knew him better than David Avram.  She knew Karim very well.  When she first came to England Karim used to drive her around.  She had travelled to England with a friend who said she was going to get work in a restaurant.  Instead they locked her up for two weeks.  They were Mariana, Arwal Avram, his wife, Laura, Roxana and Karim.  After two weeks she said she was strong enough to do a man's job and ended up working in Karim's garden.  When she started working in massage parlours she still did not speak English and she used to sign for the various services.  It is a matter for you whether that sounds familiar." 

18.	We have heard submissions as to the meaning of the last sentence.  When the judged referred to "that sounds rather familiar", was he just referring to the fact that she had to use signs because she could not speak English, which was of course the evidence of the complainant, or was he referring to the other evidence in addition, in particular that she was falsely led to believe that she would work in a restaurant?  
19.	We were in fact told by Mrs Prior, counsel for the Crown who appeared for the Crown below, that the witness went on to say that she had voluntarily become involved in prostitution; it was not as a result of pressure from the appellant.  Mrs Prior says that the effect of the evidence was essentially if not to negate, then certainly to dilute the force of, the observation that the appellant had been her pimp.  When the jury considered the whole of this evidence, it left a far less unfavourable impression of the appellant than might have been understood from use of the word “pimp” alone.  It is right to say, however, that the judge did not refer to that particular part of the witness's evidence in the summing‑up.  
20.	The two grounds of appeal are these.  First, it is said that the judge ought to have discharged the jury and was wrong to say that the evidence was in principle admissible as bad character evidence; and second, even if the evidence had been properly admitted, nonetheless the judge's direction in relation to it was wholly inadequate.  It is submitted that the judge ought to have dealt with this evidence by giving the direction which judges will typically give in these circumstances, that is to tell the jury they should be careful only to give weight to the evidence if they are satisfied that it is true, that they should not infer guilt from that evidence alone, and that it is only part of the evidence as a whole.  It is common ground that the judge did not do that at the point in the summing‑up when he dealt with this evidence.  
21.	It is pertinent to note that when he was dealing with the bad character evidence to which we have made reference, concerning the allegation that the appellant had sought to introduce Romanian girls to another brothel, the judge had given the appropriate bad character direction which the appellant says he should have given in this context too.
22.	As to the first ground ‑ whether the judge should have discharged the jury ‑ in our judgment he was perfectly entitled not to do so.  Counsel for the appellant submits that the judge was seeking to adduce this evidence under section 101(1)(e) of the Criminal Justice Act 2003 and that was not applicable.  With respect, although as we have indicated the judge did not state under what sub‑section he was acting, it seems to us plain that it was section 101(1)(c).  We think the judge was right to say that this was potentially important explanatory evidence in relation to Ms Ghenciu.  Her case was that although she knew there was the complainant was being controlled by the co‑defendants, nonetheless she was not participating in that plan. She accepted that on occasions she had co‑operated with other co‑defendants in various ways, but that was essentially because she was in fear of them; it was not because she was in any way part of the operation which was seeking to control the complainant's activities.  So this evidence potentially assisted the jury properly to assess the nature and purpose of her acts.  
23.	If, as we think, the judge would have been entitled, had an application been made, to allow this evidence to be introduced as bad character evidence, then there can be no basis for saying that he should have taken the drastic step of discharging the jury.  We would add that even if we are wrong about that, there are many cases which establish that where a witness refers to bad character in circumstances where it ought not to have been adduced, nonetheless it is a matter for the judge in his or her discretion to decide whether in all the circumstances fairness to the defendant requires that the jury should be discharged.  The leading case is still Weaver [1968] 1 QB 353, where Sachs LJ, giving the judgment of this court, emphasised that not only is it a matter for the discretion of the trial judge having regard to all the circumstances of the case and the nature of the evidence, but this court will not lightly interfere with a judge's exercise of discretion.  
24.	We are satisfied, particularly given that this evidence was given by a co‑accused rather than by an independent witness, that the judge was right not to have discharged the jury in this case.
25.	We go on to consider the second ground, namely that the summing‑up was in all the circumstances inadequate. In this context we should point out that although the judge did not give a clear direction to the jury as to precisely how they should deal with this evidence, he had, as we have indicated, given a proper bad character direction earlier in his summing‑up when dealing with the evidence of Ms Larvin.  Perhaps more to the point, he had also told the jury that Claudia Ghenciu "obviously in some respects may have her own interests to serve", and the jury would have been conscious of that fact.  Indeed, they did not accept her evidence, at least not in totality, as is demonstrated by the fact that they convicted her of this offence.  
26.	In addition, when dealing with the bad character evidence relating to that given by Ms Larvin, the judge emphasised that undue importance should not be attached to it and he added this: 

i.	"Evidence of bad character is background evidence and is no substitute for the evidence you have to decide this case on, namely the evidence about what was happening in Shirley Street and at the Venus club.  The primary evidence is the evidence that comes from and about Ms Aniti and it is on that rather than on bad conduct on another occasion, even if you find it to have been proved, that you must decide the case.  So the bad conduct cannot possibly make him guilty of this charge." 

27.	Accordingly, the situation seems to be this: firstly, the judge did refer to the evidence of Ms Ghenciu that the appellant had been her pimp, but to some extent the force of that was ameliorated by the further explanation as to precisely the way in which she alleged she had been treated by him.  We accept, nonetheless, that it would have been desirable for the judge to have told the jury that either they might think that the description of the appellant being her pimp was not fair or accurate, or alternatively that the jury should be very careful about that evidence and its relevance to the case, in very much the same way as he had done in relation to the earlier bad character evidence to which we have referred.
28.	Having said that, it is relevant to note that no counsel after the summing‑up asked the judge specifically to give the jury further assistance as to precisely how they should deal with that evidence.  So whilst we accept that the summing‑up on this point was not entirely satisfactory, it was not in our view as gravely defective as counsel for the appellant suggests.  He said that the jury would effectively go into the jury room with the very clear message in their head that on an earlier occasion this appellant had been a pimp, and that fact would have greatly influenced their thinking.  We do not accept for the reasons we have given that it would have played that significant role in the jury's analysis of the facts of this case. 
29.	We consider whether in all the circumstances the verdict was safe, notwithstanding that the summing up was to the extent we have identified, unsatisfactory.  We have no doubt that it was.  
30.	The first and very powerful point is this: the case against all these defendants depended very heavily upon the credibility of the complainant.  The core of her account was plainly true, as is demonstrated by the fact that two of the defendants pleaded during the course of the trial.  She had been controlled as a prostitute precisely in the way that she indicated.  Of course, that does not of itself establish a case against the appellant, but it does go a long way to establishing her credibility.  
31.	Furthermore, it does seem something of an extraordinary coincidence that the very same co‑defendants who had agreed that they were part of the plan would have been living in the same house as this appellant at the time when the complainant first came to the country, that he provided them with accommodation out of the goodness of his heart, and that he had no idea that they were involved in these illegal activities or that they were controlling her activities in this way.  It beggars belief to think that he could have been as innocent of everything going on as he now claims.  But the evidence goes further than that.  There were a number of other features which strongly point to his guilt.  First, there was the evidence of Raluca to which we have already referred.  She said that the appellant had visited the club on the night that the complainant had disappeared.  He would have had no interest at all in doing that if he did not even know that she was involved in prostitution or anything of that kind.  Second, there was the bad character evidence of Ms Larvin.  Third, there was the fact that, when interviewed, the appellant was selective about various questions that he answered.  He said that he had not answered questions on counsel's advice, although he did answer some of them.  Furthermore, he provided a number of statements.  These were prepared statements.  The judge refers to them in his summing‑up.  It is plain that these statements were inconsistent and that he resiled from some of them in particular ways.  We do not have the statements before us, but the judge in his summing‑up observes that he was blaming his solicitors for putting things in the prepared statement that simply were not true, notwithstanding that they were signed by him.  There was also the failure to refer to facts upon which he subsequently relied at trial, for example he alleged that the complainant had stolen goods from him, but that was never disclosed before the trial itself.  
32.	In these circumstances, although we accept with hindsight that the summing‑up did not deal with that aspect of the evidence as satisfactorily as it ought to have done – in every other respect it was impeccable -nevertheless, it was not in all the circumstances a particularly serious blemish. We are fully satisfied that applying the test referred to by Lord Bingham in Pendleton [2001] UKHL 66, the verdict is safe.  Accordingly, the appeal is dismissed.