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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Crossland, R v [2013] EWCA Crim 2313 (22 November 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2313.html Cite as: [2013] EWCA Crim 2313

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 22 November 2013

1. LADY JUSTICE SHARP: The provisions of the Sexual Offences (Amendment) Act 1992 apply, as do the provisions of section 39 Children and Young Persons Act 1933. This judgment will be anonymised accordingly.
2. This is an appeal against conviction with the leave of the single judge. The appellant Jacob Crossland is now 21 years old. On 9th October 2012 he was convicted after a trial of two rapes, contrary to section 1(1) Sexual Offences Act 2003 ("the Act"), counts 3 and 6, and four counts of sexual activity with a child contrary to section 13(1) of the Act, counts 1 to 4. No verdicts were taken on two further counts of sexual activity with a child which were alternative counts to the rape charges.
3. He was sentenced to a total of eight years' detention in a young offenders' institution: three years on count 3 and five years consecutive on count 6, to which sentences of two years' detention on each of the remaining counts were concurrent. He was made the subject of a Sexual Offences Prevention Order, required to comply with provisions as to notification and included on a list of relevant persons by the Independent Safeguarding Authority.
4. The first rape was alleged to have been committed against C, who was born on 18th June 1996, and the second rape was alleged to have been committed against K, who was born on 4th July 1996. C was the complainant in relation to the remaining counts on which the appellant was convicted. It was common ground that the appellant knew both K and C with whom he was friends on Facebook. K also had a connection with the appellant's mother. She and the appellant lived within close proximity to each other.
5. C and K were at the same school in the same year group and had been friends when they were about 13, but by the time of the alleged incident involving K they were acquaintances rather than friends.
6. K was allegedly raped on 7th January 2011 when she was 14 and the appellant was 18. She was seen by the police shortly afterwards and told them amongst other things that C used to go out with the appellant. C was then interviewed. One of the things she told the police was that the appellant had injured his penis when he had raped her.
7. The appellant was arrested and interviewed and denied all the allegations as fabrications. He said he had an alibi in respect of the allegation made by K as he was in Leeds that day having some tattoos done to his arm. He was asked whether he had ever injured his penis when having sex with a partner and he said "no". He made no comment at a second interview apart from confirming the summary given to him of the account he had given in the first.
8. The appellant's defence case statement served shortly before the trial was consistent with the account given by the appellant in interview, but now said that the appellant's penis had been injured later, during a relationship with a different girl, ST. It went on: "The defence suspect that C might be aware of that type of injury as she had a physical relationship with a lad called [AH] to whom a similar injury occurred. [AH] also knew that the defendant had suffered the same injury and may have discussed it with (C)".
9. Following service of the defence case statement, the prosecution served further evidence (from a tattoo artist and a mobile phone expert) which undermined the appellant's alibi and showed the appellant's phone in use in the area in which both he and K lived all day on 7th January 2011. A statement from AH was also served in which he said in categorical terms that he had never been in a relationship with C, sexual or otherwise, nor had he ever sustained any sort of injury to his penis.
10. K gave evidence that on 7th January 2011 (she thought it was that day because she had been at home unwell from school all that week) the appellant popped up on Facebook and said he had something to bring round for her mother. He came round by taxi to her home. When he arrived he started pleading for a kiss. She refused and he went up to her bedroom. She followed him to see what he was doing and found him on her bed. He dragged her into the bedroom, pushed her against the wall and tried to kiss and cuddle her. He pushed her onto the bed and despite her protests pulled her trousers down and forced himself upon her, penetrating her with his penis. The appellant left shortly afterwards in a taxi. She told her boyfriend about a week later, then her mother, and the police were then contacted.
11. A taxi driver, R, was called. He knew both the appellant's family and K's family. He was not able to pin down a particular date but at about the time of the alleged offence against K, he said he had driven the appellant in his taxi from the appellant's house to K's house.
12. K's mother said K had been away from school for the whole of the week ending on Friday 7th January. About a week later, K told her that she had been raped.
13. C said she had a short relationship of about two weeks with the appellant in the summer of 2009 when she was 13 years old and he was 17. She felt bad about the fact that they had split up and in about October 2009 they went for a walk together in the woods. Whilst they were there the appellant pushed her against a tree and penetrated her with his penis, even though she told him to stop. He did stop but only because he had damaged his penis. She said he snapped his foreskin. She said there was blood everywhere and he said he was going to the local A&E department. They stopped seeing each other for a while, but later on, there were four further incidents of consensual sexual activity between March 2010 and March 2011 when she 13 or 14, which occurred because she was "a gullible girl". Two were of oral sex (these formed the basis of counts 1 and 2) and two were sexual intercourse (these formed the basis of counts 4 and 5). Three of the incidents had taken place at the appellant's house and one at his grandmother's house of which C gave descriptions.
14. At the close of C's evidence in chief (which had been given by showing the jury her ABE interview) the defence asked to cross-examine C pursuant to the provisions of sections 41 and 42 the Youth Justice and Criminal Evidence Act 1999.
15. Sections 41 and 42 provide so far as relevant:

"41 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

...

(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).

...

(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.

42 Interpretation and application of section 41.

(1) In section 41—

(a)'relevant issue in the case' means any issue falling to be proved by the prosecution or defence in the trial of the accused;

...

(c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused... "

16. In accordance with those provisions, the court may not give leave in relation to any evidence or question of the nature which potentially falls under section 41 unless it is satisfied that section 41(3) or section 41(5) applies and that the refusal might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case falling to be proved by the prosecution or the defence at the trial.
17. The defence said it wanted to ask C about her sexual relationship with AH having regard to the matters raised in the defence case statement to which we have referred. It was submitted that the defence was not simply trying to impugn C's credibility, but wanted to ask these questions as they were relevant to how she could have come to know about the appellant's condition and injury. The prosecution submitted these matters could be dealt with without going into C's sexual history.
18. The Recorder rejected the application. In his view there was arguably a relevant issue within section 41(3). However it was a reasonable assumption that the purpose or main purpose for which the evidence would be adduced or questions asked was to establish or elicit material to impugn the credibility of the complainant as a witness, and refusal of leave would not lead to an unsafe conviction. In view of his ruling he said the appellant should not be cross-examined as to how C came to know of the injury, and he left open the possibility that the issue could be raised again.
19. By agreement between the prosecution and the defence, AH was not then called to give evidence.
20. The jury heard from a further witness JW with whom C had been in an on/off relationship for about two years. He said in about April or May 2010 C told him that the appellant had bent her over a tree, tried to have sex with her, but then his "banjo snapped" which meant his penis was bleeding. He said she was upset and had not told anyone about this before. He suggested she tell her family but she never raised it again.
21. Records from the local hospital showed the appellant had gone to hospital on 2nd December 2009 and complained he was having sex with his partner when he found a wound to his penis. The notes recorded the appellant saying a similar thing had happened to him before: two weeks and also two months earlier.
22. The appellant, who was of previous good character, acknowledged he knew both the complainants but in his evidence maintained his account that both girls were making the allegations up. He now accepted he was in the vicinity of his home and that of K, on 7th January 2011 and said he had got his dates mixed up. As for the injury to his penis, he said this had resulted from sexual activity with a different girl, ST; and he had denied having such an injury in interview because he had misunderstood the question. He also said that C's descriptions of his grandmother's house and his own could have been gleaned from Facebook.
23. A statement from ST was read. It confirmed she had a brief relationship with the appellant from about 31st October 2009 which lasted about three weeks and during which the appellant's penis started bleeding whilst they were having sex and she and the appellant then went to the local A&E department.
24. Mr Smith, who appears on behalf of the appellant today and appeared for him at the trial, submits the judge was wrong to refuse the section 41 application as the line of questioning he wished to pursue with C related to an important issue in the case, how she could have come to know of the appellant's injury, and it did not relate to credit. He submits it was evidently unfair to prevent the appellant from exploring this issue, not least because the Recorder when summing the case up to the jury identified it as one matter they might wish to consider.
25. We do not accept that submission. In our view this was not a matter for an application under section 41 at all. The appellant had an unusual problem affecting his penis. The obvious question for the jury was how C would have known about it unless she had had intercourse with him at some point, as she said she had and the appellant denied. That was the issue. The appellant's somewhat tentative suggestion in the defence case statement was that she may have known about it because AH told her. However there was no basis to cross-examine C about what AH may or may not have told her, except speculatively having regard to the content of AH's statement in which he said very clearly not only that he had no such injury but that he had never had any conversation with C of the nature described in the defence case statement. To this the appellant's instructions on the matter, to which Mr Smith referred us, could add nothing.
26. The Recorder at one point during the course of his exchanges with Mr Smith said he might be willing to permit the issue – that is whether AH had ever spoken to C about the appellant's condition/injury – to be explored with both C and AH but without going into whether C and AH did or did not have a sexual relationship. As it was, the fact that the defence did not then require AH to be called after the Recorder made his ruling does not surprise us. First of all, as we have already said, there was no basis apart from a speculative one upon which to cross-examine either C or AH. Further, if AH had been called and asked whether the appellant had told him of his unusual condition and whether he had then spoken of it to C, there was every risk that AH would have said, as his statement did, that no such conversation with either the appellant or C had ever taken place, which would have put the appellant in an even more difficult position than he was already in.
27. Whether C and AH had had a sexual relationship, which was what Mr Smith said he wanted to ask C about, was simply irrelevant to any issue the jury had to consider, even if it was the case that curiously AH and the appellant suffered from the same unfortunate condition. In our judgment the Recorder was thus right to refuse the application in respect of evidence which could only, and impermissibly, go to credit.
28. We add this. We note that no notice was given of the section 41 application by the defence. It was not made in writing and the questions which the defence wished to ask were not particularised. This was a serious and inexcusable breach of Part 6 of the Criminal Procedure Rules. The rules are there for a reason. The failure to comply with them makes it more likely that things will go wrong at the trial, either because the statutory protection given to the complainants in sexual offence proceedings will be undermined or because the defence will be prohibited from pursuing a legitimate line of questioning. In this case, the Recorder had to deal at short notice with the application when neither the basis for it nor the questions the defence wanted to ask were clearly articulated to him even orally. Fortunately, notwithstanding those difficulties, in our judgment for the reasons we have given we consider he came to the right conclusion.
29. Two further grounds of appeal were advanced in the written grounds of appeal, but in the event Mr Smith pursues only one of them before us today. He submits that the Recorder was wrong to tell the jury that the date of the alleged offence against K (7th January 2011) was not a material averment.
30. In his summing-up the Recorder said this:

"I have no more to say about the indictment except that the first five counts, all concerning C, deal with a range of times, whereas count 6 deals with a specific date, 7th January 2011. Now, that specific date obviously is important as a matter of evidence, but as a matter of law the date alleged is not crucial to a finding of guilt, because, if you think about it, if you were satisfied on the evidence that K had been raped but that it had taken pleas on the Thursday before or the Saturday after, then the defendant would still be guilty. The prosecution do not have to satisfy you so that you feel sure that this was not only rape but rape on 7th January of 2011, but of course because a specific date is alleged then this brings into play the issue of what the defendant was in fact doing on that day, and more of that later."

In our view no criticism can be made of that direction. As the Recorder went on to remind the jury, the point as to date was a matter of evidential significance given the way the case on this count was advanced by the prosecution and having regard to the evidence they had heard which bore on this issue during the trial; and he then gave them full and careful directions on the material evidence, including what the appellant had said about the matter.

32. We are not therefore persuaded by either ground of appeal advanced but are satisfied the appellant's conviction on all counts is safe. The appeal against conviction is therefore dismissed.