Neutral Citation Number: [2017] EWCA Crim 285
Case No: 201603363/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 3 February 2017
 
B e f o r e: 
LORD JUSTICE McCOMBE 
MR JUSTICE WILLIAM DAVIS
 
SIR DAVID MADDISON
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R E G I N A 
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"ML"
 
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Mr A Greenwood appeared on behalf of the Appellant 
Mr S Heptonstall appeared on behalf of the Crown
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J U D G M E N T (As Approved by the Court) 
1.	LORD JUSTICE McCOMBE:  On 1st July 2016 in the Crown Court at Cardiff, after a trial before His Honour Judge Gaskell and a jury, this appellant was convicted of eight offences which were charged on a 15 count indictment.  The offences of which he was convicted were the following.  Three offences of rape, contrary to section 1 of the Sexual Offences Act 2003 (counts 6, 7 and 15), two offences of causing a person to engage in sexual activity without consent, contrary to section 4 of the same Act (counts 3 and 4) and three offences of sexual assault, contrary to section 3 of the Act (counts 2, 5 and 13).  He was acquitted on five further counts of rape (counts 8 to 12) and on one count of indecent assault (count 1) to which count 2, on which he was convicted, was charged as an alternative.
2.	The appellant was sentenced in due course by the learned judge to a total term of imprisonment of 12 years.  It is not necessary to dwell further upon the make up of that sentence as we are concerned today with an appeal against conviction on a single ground, for which the single judge has given leave, and with a renewed application for leave to appeal on other grounds upon which the single judge refused leave.
3.	The underlying facts of the case and the respective cases of the Crown and defence were as follows.  The complainant on all the counts on the indictment was a young woman whom we will call "C", born on 4th May 1987.  The appellant is her uncle.  His brother, G, is her biological father and his sister, S, his adoptive mother.
4.	In the period between 2003 and 2004 C was living with her mother and grandmother at a property in a street in Treforest in Wales. The appellant lived with his wife at a separate property in the same street, No 16 in that street.  No 4 in the same street was the home the grandparents of C, before the grandfather died in 2003.
5.	After his death it was decided by the family that the property at No 4, which had become unoccupied, should be renovated.  This work was undertaken substantially by the appellant assisted by C.  This was the first time that they had regularly been in each other's company as he had only recently moved to the area from a distant part of the country.
6.	It was the Crown case that he used that situation to take advantage of C and to embark on a course of conduct of sexual abuse of her, beginning initially with sexual touching and progressing ultimately to rape, which then continued for a number of years.  It was said he did this knowing she was a vulnerable girl who was unlikely to tell anyone.
7.	The counts on the indictment spanned the period from November 2003 to May 2013.  The offences underlying the convictions which we have summarised were alleged to have occurred between May 2004 and December 2011, ie in the period when C was between the ages of 16 and 24.
8.	After the renovations of No 4 were completed C, her mother and grandmother moved into No 4.  
9.	The short details of the counts upon which this appellant was convicted were these.  Count 2 was a specific allegation that he sexually assaulted C for the first time at a date after May 2004 while they were renovating No 4.  (There had been the alternative charge in count 1, dependent upon dates, arising because of the implementation of the Sexual Offences Act 2003 as compared to the old Act of 1956.)
10.	Count 3 was a specimen of allegations that the appellant would make C masturbate him; count 4, was a specimen count that he would impel C to touch herself sexually.  Count 5 was a specimen count representing touching on the breasts and vagina. Count 6 was the first allegation, of a specific nature, of rape said to have occurred in the bedroom at No 16 when C was at the age of 17.
11.	Count 13 was in relation to a specific and unusual incident in 2011, when C was alleging she was being abused by the appellant in his car, parked in an area that was called "the mountain", and she had summoned a friend to the scene by a text message.  The specific offence was said to have arisen after C had told a friend (whom we will call "A" who also gave evidence at the trial) that she was being abused by the appellant and she, C, had agreed with that friend that she would call for her assistance if things started to go "the wrong way" again.  In interview with the police the appellant gave a very different version of this incident, to which we will come shortly.  
12.	The witness, A, told the court that she was a friend and neighbour of C and her evidence was that the complainant disclosed to her, in about 2011 or 2012, that she was being abused by the appellant.  A, she said, urged C to go to the police but she would not.  It was agreed between them, at that stage, that if C was in the appellant's car on another occasion and she thought something unpleasant was to happen, she would text A.   This, said A, C did.  A went to the scene in her car with another witness, B (to whom we will also come in a moment) and found C in a state of undress in the appellant's car and saw him with one hand on her naked breast and the other on his own penis.
13.	C's mother gave evidence that she had found a letter written by C to the witness, A, which had never been sent.  The letter said that she had been sexually abused.  The mother spoke to the appellant about this and he told her to destroy the letter, which she said she did.  
14.	It was a result of a subsequent conversation between the mother and another brother, who happened in fact to be in prison, that she told that brother about C's allegations of abuse.   
15.	The final witness of importance was B, who told the court that she was in the same sex relationship with A during the relevant period and gave evidence about what she knew of C and the allegations that had been made, in particular about the incident on the mountain side to which she had driven with A. On her evidence, she had remained in A's car as A had approached the vehicle and seen what had been going on.
16.	As far as the defence case was concerned, the appellant himself did not give evidence but relied on the answers given in his police interview.  He told the police that he had not touched C at all in a sexual fashion and said that, in his view, she was a liar and a fantasist.  He said that the letter that the mother had found was an example of that.  His case was that C, the complainant, was having an affair with A and was afraid to tell her mother about it.   
17.	The incident, on what was called "the mountain" arose because C said she wanted ‑ this is what the appellant told the police ‑ to show him some love bites that A had given to her.  A had then arrived on the scene and threatened that, if the appellant told C's mother about the relationship between her and C, they would then falsely claim that he was abusing C, the complainant.
18.	The essence of the case on these issues was put to the complainant, C, in cross‑examination.  That she was lying and that none of the alleged sexual activity had taken place.  She was asked why she went on seeing the appellant in the light of the serious allegations she was making.
19.	It was suggested to her that she told A lies in order to get A's sympathy and to get closer to her.  It was put to her that she had wanted a relationship of a sexual nature with A.
20.	In relation to the specific incident on the mountain, it was put that she had told the appellant, as we just summarised, that she, C, had love bites on the top part of her body and he had driven at the quiet spot in order for him to be shown them.  
21.	Her agreed medical records were put to the complainant and it was suggested that those records undermined her credibility as to the evidence that she was "not the type of girl to sleep around". The medical records refer to the use of condoms and a regular partner in the period around 2007.  There are other references to contraception in 2010, 2011 and 2012.  C had said in cross‑examination about this that she had been concerned as to possible pregnancy by the appellant through his unwanted conduct.
22.	As we have said, the appellant did not give evidence.  His case rested upon his answers in interview and counsel's submissions to the jury.  His primary case, as we have outlined, was that he denied any form of sexual activity with C.  As we have said, his case was that C had invented the allegations, first on the basis she was a liar and fantasist and then it was argued the allegations had been advanced to prevent revelation by the appellant of an existing or desired homosexual relationship between C and A.   
23.	In his perfected advice on appeal Mr Greenwood, in a very thorough task on behalf of his client, makes this short point and we quote for convenience paragraphs 26‑29 of his advice on appeal where he says this: 
"26. The defence submitted that consent should be left to the jury as an issue in the case.  
27. Such an approach was also urged by... counsel for the prosecution. 
28. The learned Judge acceded to the defence request not to leave the matter to the jury on the basis of an either/or scenario. 
29. That is if sexual relations occurred they must have been non‑consensual.  
30. It was understood that he would give adequate directions on the issue of consent."
That is the point upon which Mr Greenwood has addressed helpful argument to us this morning and he submits that the learned judge did not go far enough in his directions to the jury on that issue of consent.
24.	Looking at the summing‑up, we see at the outset the judge quite correctly directed the jury that the essential issue of fact for them was whether they accepted the evidence of C.  He cautioned them to disregard any view of the facts that he might have expressed, if they disagreed with that view. There were clear and correct directions upon the burden and standard of proof and again, at pages 3D, the learned judge said this:  
"You may think the essential issue for you to decide is whether or not [C] [who he names] has told you the truth, and if you found that she has then of course you will want to consider each count to consider the extent to which her evidence proves that count."
25.	The judge then proceeded to give directions on the alternative counts 1 and 2, which turned upon the dates which we have mentioned on which the alleged offence was said to have occurred, either before or after the operative date of the 2003 Act.  He dealt with the distinction between specific counts and specimen counts and he proceeded to deal with the ingredients of the types of offence alleged, beginning with indecent assault under the 1956 Act.  We propose to look at in each case at the direction that he gave on the consent issues.  First, page 5E‑G of the transcript, the judge is recorded as saying this:  
"Fourthly you have to be satisfied that [C] did not consent to the indecent touching.  Now, on the facts of this case it is alleged that the defendant touched [C's] breasts over her clothing.  Again, it is a matter for you, but you may think that, if he did that, that was clearly indecent.  It is not submitted that such an act would not have been indecent.  Now, if you look at how the defence have put their case in the course of this trial, both in questions to [C] and in the defendant's replies in interview, the effect of the way they have put their case is that what is alleged simply did not happen.  So, although you must be satisfied so that you are sure that he did intentionally assault her, that is to touch her, that it was indecent, that he intended to do it, and that she did not consent to it, you may think that the issue for you to consider as the issue to be decided is, did he touch her breasts over her clothing?"
26.	He turned to sexual assault under the 2003 Act and he said this about consent at page 6C‑D: 
"Well, the prosecution have to prove...  that the person touched did not consent it to; and fourthly that the defendant did not reasonably believe that the person touched consented. All those matters have to be proved." 
Then he proceeded between 6E and 7A:  
"So in respect of each of those allegations, I will just go through it again, the prosecution have to prove that there was a touching, that the touching was sexual, that the person touched did not consent to it, and that the defendant did not reasonably believe the person touched consented.  Now, on the issue of consent, a person consents if she agrees by choice and has the freedom to make that choice.  Now, in each of the allegations of sexual assault, the case as put in cross‑examination to [C] and as addressed by the defendant in his police interview was the behaviour simply did not happen, and that [C] has made up the allegation.  It was not asserted that it did not amount sexual assault; it was not positively asserted that she consented or that he believed that she consented. In those circumstances you may think that the issue is in dispute is whether or not he behaved in the way that she described.  But then, bear in mind the prosecution have to prove each of the elements that I have set out and if you are satisfied that he touched her, that the touching was sexual, that she did not consent to it and he did not reasonably believe that she consented, then your verdict should be guilty.  If you are not satisfied as those matters then your verdict should be not guilty."
27.	The judge then next dealt with sexual activity without consent and on this issue of the denial of any incident and alternatively consent the judge said this at letter 7D and E‑H of transcript: 
"The prosecution must prove...  thirdly that she did not consent to engaging in the activity; and fourthly that he did not reasonably believe that she did consent ... In respect of each of these the manner in which the case is put to her, and when he has the opportunity of dealing with these matters in his interview, the defendant's response is that they simply did not happen.  You have to be satisfied as to the elements that I have described to you; that is that he caused her to engage in the activity, that the activity was sexual, that she did not consent, and that he did not honestly believe she did consent.  But you may think that the issue for you to decide, which has been raised in the case, is whether or not in respect of Count 3 he did cause her to masturbate him, and in respect of Count 4 whether he did cause her touch herself on her vagina while he was watching her, and indeed touching herself.  So, if you are satisfied that he did those things and you are satisfied as to the elements of the offence, then your verdict should be guilty; if not, not guilty."
28.	Finally the judge turned to the offence of rape and he is recorded as saying this between letters 8C and 9C of the transcript: 
"The prosecution must prove that the defendant intentionally penetrated the vagina of [C] with his penis.  The prosecution have to prove that [C] did not consent to the penetration.  I repeat, a person consents if she agrees by choice and has the freedom to make that choice.  Thirdly, the prosecution have to prove that the defendant did not believe that she consented, or that any belief on his part was unreasonable.  Now, whether belief is reasonable is to be determined by having regard to all the circumstances including any steps taken by the defendant to ascertain to whether or not [C] did in fact consent. Now, on the facts of this case, if what [C] has told you is the truth then the defendant is guilty of rape.  The defendant penetrated her vagina with his penis, she did not consent, and he could not reasonably believe that she did.  The defence case as put to [C] and as addressed by him in the course of his police interview, is that there was no vaginal intercourse; that he did not penetrate her with his penis.  When he is first arrested, he makes the comment that it was not rape.  When he says 'not rape' that suggests that it is something other than rape.  But he clarifies that in the course of his interview, because then he denies that he touched her in the course of his interview he does not assert that there was consensual sex;  he does not assert he believed she consented.  So, on the basis of how the defence has put its case, you may think that the issue in each case is, did it happen?  So, when you are considering each of the allegations of rape, you have to ask yourself: 'Did he penetrate her vagina with his penis?  Did she not consent to that penetration?  And did he not believe that she consented?  Did he not have a reasonable belief that she consented?  As I have said, the issue that is put forward before by the defence as part of their case is, did it happen?  Well, if you are satisfied it did happen, that she did not consent and that he did not reasonably believe she did consent, then the elements of rape are made out and your verdict should be guilty.  As I have said, members of the jury, consider each of the allegations of rape separately.  Look at the evidence in respect of each of them and decide whether the case is proved in respect of each of those allegations." 
29.	The argument for the appellant is that the learned judge in dealing with the component part of the offences directed that the requirement was that the act must be non‑consensual but he repeatedly emphasised that they might think the main issue for them was whether sexual relations had taken place and, if contrary to the defence case it did, then conviction must follow. The submission is that this underplayed the issue of consent.  Mr Greenwood, in his oral submissions this morning, has emphasised to us that the passages that we have read pulled the jury back from the consent issue, being the subsidiary issue in the case that the jury had to consider.
30.	We have read in full into this judgment those passages in which the judge dealt with the issue peripheral to the principal issue of the case, as raised by the defence in interview, namely that no sexual acts occurred at all. The appellant had made no case of sexual conduct with C's consent; indeed in his interview he expressly denied it as recorded pages 52B‑C of the summing‑up transcript.
31.	In each case however, as we have sought to illustrate, the judge charged the jury they had to be satisfied nonetheless that the Crown had proved lack of consent or lack of reasonable belief in consent as appropriate.  We are told that he had agreed with counsel that he would not leave the case on the basis if sexual relations occurred they must have been non consensual.
32.	In our judgment, in the end, the learned judge complied precisely with that undertaking in the passages that we have quoted.  It was a difficult tight rope for the judge to walk to achieve this in the light of a number of factors ‑ the blanket denial by the appellant of any sexual relations between him and C, the absence of any positive evidence of consensual behaviour and the failure of the appellant to give evidence at all.  The "tight rope", in our judgment, is illustrated by Mr Greenwood's helpful contribution to the argument this morning that when we asked him how he addressed the jury, and it is quite clear that he must too have tried to walk the tight rope that the learned judge had to try to walk, on the one hand concentrating on the main issue (that the appellant was saying it did not happen at all) but leaving the possibility of an alternative conclusion if the jury decided that second acts did occur. 
33.	For our part, we cannot see what more the judge could have done to meet the point. He was entitled, and in the light of defence case bound, to give primacy to the contention for the defence there were no acts of a sexual nature, consensual or otherwise.  He correctly told the jury that lack of consent had to be proved in the case of each type of offence that was alleged on the indictment.
34.	In our experience, with respect, some judges might have been inclined to say the issue of consent did not arise at all and leave this matter as it was.  It is obvious that the main question for the jury was whether C was a truthful and reliable witness and on that point he directed them quite correctly (twice) at the start of his summing‑up.  He did not however remove the question of consent from the jury's consideration, on the contrary, he expressly told them several times that the Crown had to satisfy them of the absence of consent.  For those reasons, we have no hesitation in rejecting this ground of appeal.  
35.	We turn shortly to the additional grounds of appeal for which the single judge did not give leave but which had been renewed before us.  First, we deal briefly with the submission that the judge gave too much emphasis to the Crown case and too little to the defence case.  In our judgment however, cogently Mr Greenwood advanced it, it is an impossible submission. What the judge clearly did was summarise comprehensively the evidence in chief and the cross‑examination of all the witnesses.  In dealing with the latter he obviously also stated what answers and explanations were given by the witnesses to the suggestions put to them by Mr Greenwood in performing his duty in putting his client's case to each witness.  The judge also summarised fully the answers given by the appellant in his police interview.
36.	If there was an imbalance in the number of transcript pages taken up by the summary of Crown and defence cases that seems to us to be merely a reflection of the fact that the Crown called three principal witnesses of fact and the defence called none.  That is not an imbalance in any relevant sense. The judge summed up all the evidence that was given.
37.	The next complaint is dealt with extensively in Mr Greenwood's advice and grounds of appeal at paragraph 36.  He quotes in that paragraph a number of aspects of the case which, it is argued, were important for the defence and where the jury were reminded of the Crown case but not of the submissions of the defence.  Principally they are three: 
(1) C's continued placing of herself in the appellant's company in the face of the allegedly continuing abuse; 
(2) Late disclosure of the allegations by C;
(3) The destruction by the mother of C's draft letter to A; (4)  C's evidence that she made complaint of abuse to her doctor without the matter appearing in the records; 
(5) C's comment she would probably not have reported the matters to the police if it had not otherwise come to light; 
(6)  C deciding to text A about the incident in count 13, on the mountain side rather than calling the police;
(7) The treatment of the defence suggestion that the incident in count 13 was a set up and 
(8) The judge's reminder about the Crown's case about a comment made by the appellant on arrest which we have brought into our quotation in one of the judge's directions already.
38.	It seems to us that in these cases what the judge actually did for the most part was to summarise the relevant evidence about these facts and to remind the jury about the points put to the witnesses in cross‑examination and the answers that the witnesses gave to the suggestions made on the part of the defence.  In some cases he put in in terms that the Crown's case was such and such by reference to the answer that had been given to the questions put.  There was no rival evidence from the appellant to counter it.
39.	On reviewing these matters it seems to us that the judge was going no further by way of such comment that he made than a judge is entitled to do.  He made entirely clear to the jury that matters of fact were for them and he was equally entitled to summarise the explanation for these matters given by Crown witnesses which were for the jury to assess. 
40.	Mr Greenwood finally draws our attention to the passage at the conclusion of the summing‑up at page 52E‑F which was in these terms:  
"So, as I said, essentially it is a matter for you to consider whether you are satisfied so that you are sure that [C] has told you the truth about it. There are some inconsistencies in what she says and [I] hope I have pointed them out to you, but perhaps ‑ it is a matter entirely for you ‑ that is not surprising over the period of time that we are dealing with.  It is for you to consider whether or not any inconsistency undermines the essential elements of her account."
41.	It is argued that while the judge did highlight some of the inconsistencies in C's evidence he advocated explanations and justifications for them, but failed to provide equivalent explanation of the defence case.  However, immediately after the passage to which we have referred and which Mr Greenwood drew our attention in the advice and grounds the judge continued at page 52F:  
"The defendant in his interview with the police alleges that she is lying, that she has got together with [A] to set him up in respect of making a false allegation about him when he was simply looking at love bites, and that for reasons of her own [C] has chosen to make up these allegations. The prosecution case is that she has told you the truth and that what the defendant has said in his interview is false.  It is for you to decide whether you believe her evidence.  The prosecution say you should: the defence say you should not."
42.	Taken as a whole that is an entirely balanced summary, at the end of the summing‑up, of the competing cases.  In the end, in our view, this was a careful and well‑constructed summing‑up dealing with all the issues of law and summarising the evidence given.  In delivering it the judge sufficiently reminded the jury of the salient features of the defence case, a case to which the appellant did not contribute by any evidence of his own.  In some cases judges provide a résumé of salient defence points at the end of the summing‑up but they are not obliged to do so provided the summing‑up is adequately balanced, as we find this one to be.  We do not consider the additional grounds raised by the appellant afford any arguable basis for showing that these convictions were unsafe. For these reasons, we dismiss the appeal and we refuse the renewed application for leave to appeal on additional grounds.