Neutral Citation Number: [2013] EWCA Crim 98
No: 201202813/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 22 January 2013
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE FIELD 
 
THE RECORDER OF CARLISLE
(His Honour Judge Batty QC)
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

K.L. 
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Miss A Summers appeared on behalf of the Appellant/Applicant
 
Mr C Howell appeared on behalf of the Crown 
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J U D G M E N T 

LORD JUSTICE ELIAS:
1.	On 16 April 2012, following a trial lasting five days before His Honour Judge Mayo, the appellant was convicted by unanimous verdicts of offences of rape (count 1), burglary (count 2) and battery (count 3).  He was sentenced to a total of six and a half years which was made up of five and a half years on count 1, 12 months consecutive on the burglary (count 2) and one month concurrent on the battery.  He was made also the subject of a restraining order under section 5 of the Protection from Harassment Act.
2.	He now appeals against conviction by leave of the single judge.  He also applies for leave to appeal against sentence, the matter having been referred from the single judge to the Full Court.
3.	The circumstances were these.  The complainant, SR, and the appellant had been in a relationship from about 1995.  They had lived together at a house in [a location] for 14 years.  They both ran successful businesses and had financial independence.
4.	There were problems in the relationship which began to appear at the end of 2010.  In 2008 SR had taken on a business coach to help her with her business.  This was an issue for the appellant.  Although SR initially denied having a sexual relationship with the coach, during the course of the criminal proceedings she in fact admitted that she had had an affair with him for some six months or so until April 2011.
5.	On 4 December 2010 the appellant asked the complainant to move out.  She agreed that she would but did not go immediately.  It was accepted that they continued to have a sexual relationship; on SR's evidence it was until the end of January.
6.	On or about 15 or 16 March 2011 SR and the appellant returned home after an evening out at the local pub.  There was an argument which culminated in the appellant pushing SR against the handle of a wardrobe door.  That gave rise to count 3.  The appellant denied that any such incident had occurred.
7.	The prosecution case was that this incident was the catalyst for SR moving out. Indeed, the next day she did that and effectively ended the relationship with the appellant.  After she had moved out there were a number of text messages, some of them aggressive, sent to SR by the appellant.  
8.	They continued on occasions to see each other.  She suggested that the contact was more at the appellant's instigation than hers but there had been occasions when she had arranged to meet the appellant.  She told the jury that she still loved him and still wanted to be friends with him.
9.	It was accepted that even after SR had left the appellant's home many of her belongings remained there and she retained a key to the house.  She still had mail delivered there.  They entertained friends there as a couple.
10.	On the morning of Saturday 30 April SR visited a friend at a house which was close to the appellant's.  An arrangement was made whereby she would return to see the appellant at his home later that day.  They spent the day in the garden sunbathing.
11.	There was an incident; however, during that day when SR took the appellant's phone and read some text messages between the appellant and the wife of her business coach with whom she had been having the affair.  SR was distressed by this.  
12.	She stayed at his house that night.  She was settled on the kitchen floor but was later persuaded to go up to the bedroom by the appellant who promised to tell her more about what he knew of the coach's wife.  The appellant denied this.  He said they had both gone up to bed shortly after midnight.  
13.	In the event, it was agreed that SR had undressed down to her underwear and had got into the bed with the appellant at some point that evening or in the early hours of the morning.  He contended that there had been some cuddling in bed, which she denied, but she did accept that she and the appellant had slept in close proximity that night.  
14.	The following morning SR said that the appellant had started to touch her arm, very quickly climbed on top of her, held her down, forced her legs open and raped her.  She said she had confronted him about what he had done.  She said, "You raped me," but there was no reaction from him other than, she said, his claim that it was his right to do what he did.
15.	The appellant's case was that the sex had been consensual.  He denied that SR had said "no" or that she was crying at the time as she had alleged in her evidence.  He accepted there had been mention by SR of the word "rape" shortly afterwards but he had not taken much notice of this.
16.	SR then made a complaint that morning that she had been raped.  She told her sister and a little later she told some friends.  She did not report the matter to the police.  She said she felt she had put herself in the situation by agreeing to sleep in the same bed as the appellant.
17.	Following that incident, perhaps somewhat surprisingly, SR continued to have contact with the appellant.  They met at a pub, had dinner together and went to a concert together.  He went to her house on one occasion and assisted clearing out various items which had belonged to her recently deceased mother.
18.	The prosecution say that while they were planning to go out to dinner that night the appellant had taken a set of SR's house keys and he used that later to facilitate the burglary to her home.
19.	On Sunday 29 May the appellant met SR in a pub.  He discovered that she was going to a concert with someone else.  He was obviously very upset and made jealous by this.  She described his behaviour towards her as erratic.  She said he was "full in her face" and badgering her about who she was taking to the concert.  He followed her out of the pub and she went and hid in her car and switched her phone off.  He did in fact agree that he was put out and frustrated when she left and that he had gone into the car park to try and find her.  
20.	Between 11 o'clock that evening and 4 o'clock on the Monday morning he sent a number of texts to SR's mobile phone some of which were of a threatening nature.  For example, one of the messages was "[SR], I find it disappointing after 13 years you don't have a fucking clue what I'm capable of. ... Well I fear there is a lesson coming soon."  Then there was a rather poorly mis-spelt text message which suggested that he was at Broughton, which was the place where SR lived.
21.	The appellant did not dispute that he had left these messages.  He could not recall where he went that evening but denied that he had gone to SR's house.
22.	When SR returned to her house it was plain that items had been moved around.  In fact subsequently the appellant's fingerprints were found on a Champagne bottle and a loaf of bread.  It transpired later that certain items of clothes and a Blackberry and its charger had been stolen.
23.	SR reported the matter to the police.  It was when she reported the burglary that she disclosed to the police about the rape.
24.	The appellant was arrested.  Some of SR's underwear was found under his pillows but none of the items which had been stolen from SR's house.  He denied that he had taken keys from SR's house.  His case essentially was that these allegations had been manufactured by the appellant partly because he had disclosed the fact of her affair to the coach's wife.
25.	The indictment contained the counts of rape and burglary together.  Counsel for the appellant, Miss Summers, contended before the judge that it was inappropriate for these counts to be joined.  She referred to rule 14.2(3) of the Criminal Procedure Rules 2011.  This provides: 

"(3) An indictment may contain more than one count if all the offences charged ‑‑ 

(a) are founded on the same facts; or 

(b) form or are a part of a series of offences of the same or a similar character."
 
26.	She contended that neither condition was met here.  The burglary and rape were plainly not founded on the same facts, nor could it be said that they were part of a series of offences of the same or similar character: one was a sexual attack and the other was essentially an offence of dishonesty.
27.	The judge considered this matter.  He recognised that it was an unusual indictment on its face but he considered that the behaviour of the appellant and the way that he had burgled the house were relevant to the question of how he had acted towards the complainant earlier on that month.  In addition, it was the burglary that had triggered the complaint.  He was satisfied that evidence of what had happened with regard to the burglary was relevant and admissible in relation to the rape count and that it would be curious if evidence about the burglary could be led before the jury without them being able to be sure that a burglary had taken place.  The judge went on to add that he was going to dismiss the application for severance.  That was, of course, a mistake.  He was dismissing the application that there should not be a joinder.  But he did, in any event, make it plain that he would have rejected an application for severance even if one had been made.
28.	Miss Summers submits before us that the judge was wrong.  He should have separated the counts.  She submits that it is not accurate to describe them as forming a part of a series of offences of the same or similar character.  She conceded, however, that it was inevitable that the jury had to be told about the burglary in order to deal properly with the rape case.  
29.	It seems to us that concession is rightly and inevitably made.  Not only did it explain why the complainant had made the complaint when she did, but it also was relevant to her contention that here was a domineering and emotionally charged man who was harassing her and had made her life difficult.  The rape was the first significant incident demonstrating that nature (although the assault had also done so) but the burglary did likewise.  In addition, the appellant himself was saying that all this was manufactured and there was nothing wrong with the relationship.  Plainly the jury would need to know about this incident.
30.	It is firmly established that where evidence in relation to one count would be admissible with relation to another, that is a classic case where it can be said that the two counts form part of a series of offences of a similar character.  In the case of Kray [1970] 1 QB 125 Lord Widgery giving judgment in this court, said this:

"... offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them.  Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases." 
 
He added later in his judgment:

"It is not desirable, in the view of this court, that rule 3 should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge's discretion to sever the indictment.  All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a _prima facie_ case that they can properly and conveniently be tried together."

31.	Those _dicta_ were approved by the House of Lords in the case of Ludlow v Metropolitan Police Commissioner [1971] AC 29, the judgment of the Judicial Committee being given by Lord Pearson.
32.	Counsel for the appellant submits that although it was plainly necessary for the jury to know something about the burglary, it was not necessary for them to know all the details and in the circumstances it was unfair and wrong for joinder to take place here.
33.	We reject that submission.  It seems to us almost impossible to know exactly where one would draw the line as to what would be admissible and what would not, and it would be an extremely difficult task for the judge and counsel to tread wherever that line was supposed to be drawn.  In any event, it seems to us quite fanciful to think that one can leave before the jury an allegation in the air that there has been a burglary which has taken place, and which, if it has taken place, is potentially prejudicial to the defendant, without the jury being able to satisfy themselves, so that they are sure, that the burglary has in fact occurred. Indeed, it would be wrong for the jury to treat the burglary as evidence supporting the rape count unless they were sure of it.
34.	We think that this was a plain case where it was obviously right for the two counts to be put in the same indictment and it would have been impossible for the jury to deal satisfactorily with the matter if they had not been.  Accordingly the appeal against conviction fails.
35.	We turn to the appeal against sentence.  In passing sentence the judge was told that this appellant is a man of good character.  He formed the view that the appellant was a very arrogant man and that he had acted in accordance with that personality trait when committing these offences, but there was no justification for his violating the victim's property nor her body.  He passed a consecutive sentence of 12 months for the burglary.  
36.	It was an unusual case to the extent that the victim herself would not have pursued the rape charge and would not have told the police about it but for the burglary.  Indeed, even then she did not want the rape charge to be pursued.  As we have noted, she also voluntarily on a number of occasions after the rape had occurred chose to meet the appellant and to socialise with him.  From her point of view matters came to a head when he committed this burglary, which obviously in the context must have been distressing. It was the final straw in what appeared to be harassment from somebody who could not accept that the relationship had come to an end.
37.	We see, with respect, why the judge chose to make the burglary consecutive, but as we have said, it was a highly unusual burglary, more in the nature of an act of harassment from a distressed ex-partner.  We bear in mind that the appellant was aged 53 and of good character and whilst this rape certainly involved a breach of trust, it was not as traumatic to the victim as would usually be the case, as demonstrated by the fact that she voluntarily allowed the relationship thereafter to continue. We think that justice is done by making the sentence for the burglary concurrent with that for the rape.  
38.	To that extent we will reduce the sentence of six and a half years and substitute a sentence of five and a half years.  To that extent this appeal succeeds in relation to sentence.