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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 >> Conn, R v [2018] EWCA Crim 1752 (27 April 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1752.html Cite as: [2018] EWCA Crim 1752

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 27 April 2018

LORD JUSTICE SIMON:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Those provisions provide that where a sexual offence has been committed against a person no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2. On 18 October 2016, at Kingston upon Thames Crown Court, the applicant was convicted before Her Honour Judge Coello and a jury of a single offence of indecent assault of AW, count 3; a single offence of rape of AW, count 5; and a single offence of rape of LS, count 6.
3. On 21 October, he was sentenced to terms of imprisonment: on count 3, a term of 12 months; on count 5, seven and a half years consecutive; and on count 6, six and a half years consecutive; a total of 15 years.
4. The applicant renews his application for leave to appeal against conviction and sentence, and for an extension of time in relation to the appeal against sentence of approximately 1 year following refusal by the single judge.
5. Mr Waterman QC, who was not trial counsel, appears on these applications.
6. The facts are well known to the applicant and his legal representatives and can therefore be summarised. The case concerned events that occurred in 1976 (count 3 and 5) and the complainant identified as AW; and 1985 (count 6) and the complainant identified as LS. The applicant was a well-known music promoter in the 1960s and 1970s. In the 1970s he promoted a Country and Western music event at Wembley arena.
7. The prosecution case in relation to count 3, indecent assault, was that in 1976 AW, then aged 15, had worked at the event promoted by the applicant. Some weeks later she received a telegram asking her to go to his office to return the uniform she wore to the event and so that she could be paid. She duly did so and nothing of note occurred.
8. A short while later she received a second telegram asking her to go back to the applicant's offices and indicating the possibility of more work. She went to his offices at about 5.00 pm. She recalled the applicant dismissing his secretary for the day and she heard people in the building leaving. He told her of the various musicians he had promoted and asked her if she wanted to sit in the leather chair behind his desk. She did so but felt uncomfortable and tried to get back to her original seat. As she began to do so the applicant sat in the leather seat behind the desk and pulled her onto his lap. He then touched her leg and tried to kiss her. She got up and tried to move away but he pulled her back again. He undid her school uniform blouse and kissed her. He sat her on the desk and touched her breast inside her bra. She tried to pull away but he pulled her towards him with his hand behind her head. He took his penis from his trousers and rubbed it on her thigh and ejaculated onto her stomach. He opened his office door and told her to go to the toilet and clear up. Those were the events that gave rise to the charge under count 3.
9. The prosecution case in relation to count 5, rape, was that this occurred on another occasion when AW had been to the applicant's office. He offered to give her a lift home. He drove his car, a Rolls Royce, and she sat in the back. As they were driving he said that he wanted to stop at his house to collect something and change his clothes. Once inside the house AW found herself in a bedroom. She told the applicant that she wanted to go home but he did not respond. He told her to sit on the bed and lie down on her back in a star shape. He removed her knickers and got onto the bed. He pushed her legs apart and penetrated her vagina with his penis. He turned her over so that she was on all fours and continued to penetrate her vagina with his penis. He ejaculated.
10. Count 6 was the charge of rape of LS in 1985. LS was then aged 16 and worked part time at a greengrocer part time near the applicant's home. She served him on a number of occasions and he mentioned the nature of his work. On one occasion he followed her into the private staff area of the shop and put a piece of paper with his telephone number on it into her jeans pocket. He told her to call him if she wanted tickets for concerts. She subsequently telephoned him as she and a friend wanted tickets to a musical. He told her he would be able to get the tickets and that she should come to his office. She went there and they sat at opposite ends of the sofa. He poured wine for them and LS spilt some on her skirt. He attempted to wipe the stain off but in doing so he put his hand up her skirt, touching her vagina over her knickers. He told her to lie on the floor. She said, "No, please don't" or words to that effect. As she lay on her back he removed her knickers. He then took off his trousers. He pushed her skirt up and her legs apart. He penetrated her vagina with his penis. She again said, or possibly whispered, "No" but he continued to penetrate her until he ejaculated.
11. In relation to the offences against AW, the prosecution case was supported by the evidence of three of her previous partners. Each gave evidence that during their relationship with AW she had told them that she had been sexually abused and raped by the applicant. In respect of the offence against LS evidence from two of her previous partners was adduced. Each stated that she had told him that she had been raped.
12. The prosecution pointed to similarities in the offending. Two of the three offences took place in the applicant's office, where each had been summonsed under the guise of work or collecting tickets. They were both deliberately isolated at a time when there were not many people, if any, in the building. There was no danger of collusion because the girls were unknown to each other. The prosecution also adduced evidence of the applicant's previous conviction in 1989 for indecent assault. He had pleaded guilty to kissing a newly employed receptionist and putting his hand up her skirt. This, the prosecution said, demonstrated a propensity to sexually assault girls, and to lie about and minimise his actions.
13. The defence case was that the allegations were all fabricated. It was also pointed out that there had been lengthy delays in the complaints being made. The applicant recalled knowing AW but denied that she had ever been in his car or taken to his house. He had never sent her telegrams and did not recall her attending his office in her school uniform.
14. So far as LS was concerned, he told the jury that they had had a consensual sexual relationship. He agreed that he had met her when she was working at the greengrocers and had given her his number. They met and later had sex in a disused building in Wimbledon Park. He did not know her age. She telephoned him about tickets to a musical and he had obtained two tickets for her. She went to his office to collect them but there was no sexual contact. He had never had sex with her in his office.
15. We should note that during the trial LS accepted for the first time that she had had sex with the applicant in a building in a park near her work.
16. The issue for the jury in relation to count 3 was whether the applicant deliberately touched AW and whether such touching was indecent. In relation to counts 5 and 6, the issue was whether the applicant penetrated AW and LS's vagina with his penis without their consent and knowing that they did not consent or being reckless as to whether or not they were consenting.
17. An issue arose during the course of the trial on the defence application for leave to cross-examine AW about previous allegations of sexual assault that she had made against other men at around the same time as her allegation against the applicant, on the basis that there was material relating to those allegations from which it might be inferred that they were untrue. The defence submitted that the allegations were not "about any sexual behaviour of the complainant" within the meaning of section 42(1)(c) of the Youth Justice and Criminal Evidence Act 1999 ("the YJCEA").
18. The first ground of appeal is that the judge wrongly refused the application to cross-examine AW about these other previous allegations of sexual assault. The matter is put in two ways. First, the judge applied the wrong test in concluding that there was insufficient evidence of falsity to allow cross-examination on the previous allegation. Second, even if the judge applied the right test, her approach and her conclusion was wrong.
19. The applicant also seeks leave to introduce a new argument, a refinement. Argument 3 is, whether true or false and whether relating to sexual behaviour or not, the evidence was relevant to an issue in the case other than consent and was not adduced to impugn the general credibility of AW, but rather to impugn the credibility of her complaint against the applicant.
20. Section 41 of the YJCEA provides:

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 ...

21. Section 42, which deals with the interpretation and application of section 41, provides by section 42(1)(c) that:

sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person ...

22. The judge was referred, among other cases, to R v RD [2009] EWCA Crim 2137. In paragraph 16 of that case, the court drew attention to the distinction between cross-examination "about any sexual behaviour" of a complainant - the phrase used in section 41(1) - and cross-examination as to previous false complaints. In relation to the latter, the court said:

... there has to be a 'proper evidential basis' for asserting that the previous complaint had been made and had been false. In the absence of such a basis the questions would become ones about previous sexual behaviour ...

23. At paragraph 17 of RD, the court referred to a schedule of alleged inconsistencies in the complainant's account of a previous incident prepared by RD's counsel, and continued:

It is contended that the judge should have allowed [counsel] to explore these apparent inconsistencies by way of cross-examination at trial so as to persuade this jury that the complainant's earlier complaint had been false. [Counsel] says that a defendant can only say that he asserts that the earlier allegation was false and then put it to the jury. He is not in a position normally to prove it, nor should he have to. But one may reach, it is said, an inevitable conclusion that the earlier allegation was false.

24. The Court of Appeal rejected that argument and then referred to a number of authorities, before continuing at paragraph 18:

This line of cases is not to be regarded as authorising the use of a trial as a vehicle for investigating the truth or falsity of an earlier allegation merely because there is some material which could be used to try and persuade a jury that it was in fact false. As was pointed out in the case of E, if the cross-examination elicited assertions that the allegation had been true, the trial court would have been faced with the dilemma of either letting those assertions of criminal conduct on the part of a named third party stand unanswered, or 'descending into factual enquiries with no obvious limit and wholly collateral to the issue in the case.' We agree with those comments. Nor does the mere fact that the police decided that there was insufficient evidence to prosecute on the past complaint amount to evidence that that complaint was false.

25. Judge Coello accurately paraphrased that paragraph in her ruling at page 20F. Her approach, set out in the ruling at page 20C to D was that there must be a sound basis for asserting that a complainant's previous statement of sexual misconduct was untrue; the most obvious basis being that a complainant had admitted that they were untrue or where falsity was a reasonable inference to draw in the circumstances.
26. At page 21, the judge recorded the fact that AW had given detailed information to the police about assaults which she said were carried out 40 years before, and had the character "of someone who was doing her best to remember", and this supported a conclusion set out at page 21C to D of the ruling:

... that she wanted the police to investigate these matters. Certainly she has never said anything herself or given any other indication by her behaviour or otherwise that these complaints were not true and the fact that the police reached a dead end with their investigations is ... or could be as much down to the passage of time and her memory playing her tricks as to anything else.

27. The judge then went on to deal with three specific complaints relied on and concluded that there was not enough information for the police to proceed:

It did not lead to ... a proper inference that these allegations may well be false." (Page 22A).

28. The phrase "may well be false" is the focus of argument 1 on the first ground of appeal, that the judge applied the wrong test.
29. The judge went on to deal with a further point relied on by the defence, that AW's reiterated observations in the ABE interview that she did not understand what was happening to her or why she was with the applicant necessarily led to a conclusion that she was suggesting that she did not understand because of a lack of prior sexual experience and thus in turn lent weight to the defence contention that she was either making it up or it was a flight of fantasy. The judge concluded that it was at least consistent with her bewilderment as to what was going on.
30. Argument 1. For the evidence of AW's false allegations, if such they were, to be admitted they would have to satisfy the test of bad character in section 100(1) of the Criminal Justice Act 2003. Such evidence was potentially of substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole - see section 100(1)(b). However, to avoid the restrictions in section 41 of the YJCEA it is clear that there must be a proper basis for asserting that the previous allegations were made and that they were untrue. There is thus no bar to the introduction of evidence of previous "false allegations" if the aim is to impugn the credibility of a complainant with a view to demonstrating that he or she tells lies, but before that can be done the defence must show "a proper evidential basis" for asserting that the previous compliant had been made and was false - see R v T; R v H [2002] 1 WLR 632 referred to in the R v RD at paragraph 16.
31. What amounts to a "proper evidential basis" has been described in various decisions of this court, but for present purposes it can be characterised as less than a strong factual foundation for concluding that the previous complaint was false, and that there must be some material from which it could properly be concluded that it was false.
32. The applicant submits by Mr Waterman that the way the judge expressed herself in the phrase "a proper inference that the allegation may well be false" applied a too restrictive test. He relied on the statement of the test in R v AM [2009] EWCA Crim 618 that the test is whether "there was material that was capable of founding an inference that the complaint was untrue".
33. We do not accept that submission. The judge adopted the approach that there must be a sound basis for asserting that a complainant's previous statement of sexual misconduct was untrue. We do not consider that she misdirected herself.
34. Argument 2. The applicant submits that even if the judge applied the right test, her approach to the allegations made by AW was insufficiently rigorous. In oral argument Mr Waterman reminded the court that there was late disclosure of the interviews of AB about others and there were no transcripts. He has put before the court a schedule of the various material that was relevant to the decision in relation to a man in a Capri car, a window cleaner called Graham and a man called David Gordon.
35. We note that there was substantial argument on the material that was available before the court by both leading and junior counsel for the applicant. It is said that the judge failed properly to consider "the strikingly vague and wholly unparticularised and unsubstantial nature of some of the allegations and the implausible circumstances of others".
36. In R v All-Hilly [2014] 2 Cr App R 530 at paragraph 14, this court made clear that the relevant exercise for a judge is fact sensitive and is an exercise of judgment "so that it is for the judge to evaluate the matters on the basis of all the relevant material". As in all such matters of evaluation, considerable deference will be given to the trial judge's view.
37. In our view, argument 2 amounts to an expression of disagreement with the judge's conclusion and an attempt to reargue points which the judge considered and rejected. She bore in mind that the events AW described occurred 40 years before and, on the basis of the material that she had before her, the judge concluded that AW was doing the best she could. The judge dealt with each of the three incidents that the defence argued satisfied the test of a false accusation: the man she was unable to identify in the Capri, the window cleaner called Graham, and the man identified as David Gordon and the incident in Brighton.
38. Mr Waterman reminds the court that the matter went rather further in relation to Gordon since AW said he had taken her to two premises in London. He submits that there were features of this particular allegation that were so outlandish that it entirely called into question her accuracy.
39. The judge specifically addressed the points made by the defence, particularly in relation to David Gordon and acknowledged the view of the police that is was surprising that they had not been able to trace him.
40. Whether another judge might have been persuaded to form a different view of the matter is immaterial. In our view, this ground is not properly arguable.
41. We then come to a further argument, argument 3, that Mr Waterman seeks to argue: "Whether true or false, whether or not it related to sexual behaviour, the evidence of previous complaints was relevant to an issue in the case that was not consent and was not adduced to impugn the general credibility of AW". In essence, Mr Waterman wishes to argue that it was unfair that the jury should hear evidence of accounts given by AW to other witnesses about what the applicant had done, and that the jury should hear from a witness, KS, that AW's manner had changed when she was 15, without hearing evidence that she said she had also been sexually assaulted by other men at the time.
42. It seems to us that there are problems with this intended argument. It is totally at odds with the way in which the case was run at trial. The application to introduce the evidence of AW's allegations was on the basis that they were false allegations and that she was a liar and a fantasist. The intended ground proceeds on that basis that she was telling the truth about the allegations and that this explained why she became withdrawn when she was 15, according to the evidence of one of the witnesses.
43. We have seen the response of trial counsel and it is clear that they took the view that AW should be treated as a fantasist and not as someone who was telling the truth. No application was made to exclude the evidence of the witnesses, CH and DL, who spoke of her distance and lack of interest in sex; nor of the other witness, KS, about the change in AW's behaviour at about the time she came into contact with the applicant. The defence wanted the jury to know that the impression AW gave at the time to these witnesses might not have been attributable to any crime committed by the applicant. That was dealt with following discussions in the absence of the jury. The prosecution suggested leading this material and the defence agreed to this course.
44. It may be that the case might have been run in a different way at trial by different counsel but as has been said in this court before, the trial is not a dress rehearsal for a hearing in the Court of Appeal, it is the occasion when all points in favour of the defence must be taken, and unless this court can see that something has gone seriously wrong in the conduct of the defence and that the conviction is accordingly unsafe it will not countenance arguments which might have been raised or challenges to the decision that were made at the time.
45. We would note that there would have been considerable danger as to treating AW as a witness of truth for the purposes of her other complaints but not in relation to what she said about the defendant.
46. In our view, there is nothing in ground 1 which justifies further hearing of the argument.
47. We turn then to grounds 5 and 6. Both relate to the summing-up.
48. Ground 5 is a complaint that the judge failed properly to direct the jury in relation to consent on the charge of rape against LS. There was a stark conflict of evidence. LS said that there had been an occasion when sexual intercourse had occurred in the applicant's office in August 1985 and that she had not consented, saying, "No" and "Please don't". The applicant's case was that there had been no occasion of sexual intercourse in his office.
49. In relation to count 6, the jury were directed that in order to find the defendant guilty of rape they had be sure that the sexual intercourse took place, that LS did not consent and that the defendant knew that she did not consent or was reckless in the sense of not caring whether she consented or not and carried on regardless - see summing-up A-B page 360.
50. Shortly after, the judge reminded the jury that they had to be sure that the incident of sexual intercourse took place in the office and that LS did not consent - see page 362A.
51. The point raised in ground 5 is that the judge did not sufficiently draw a distinction between submission to sexual intercourse and lack of consent. Mr Waterman submits that the judge's summing-up on consent was based on the decision of this court in R v Ali [2015] 2 Cr App R 33 and that the decision in Ali was wrong in this respect. It is argued that the judge misdirected the jury when saying that submission of free choice is not the same thing as consent.
52. In his oral development of ground 5, Mr Waterman took the court to the subsequent history of the relationship between LS and the applicant, which included consensual sex between the two. He submits that it was that history of the subsequent relationship which made the direction in this case confusing.
53. It seems to us that the summing-up on consent was more detailed than was necessary in this case because LS's evidence was quite clear: she did not consent on this first occasion of sexual intercourse and made it clear. Whether or not the observations of Fulford LJ in Ali were wrong, we are clear that this argument does not give rise to arguable grounds of appeal.
54. Ground 6 is founded on the judge's failure to direct the jury on the applicant's belief in LS's consent. It is said that the jury should have been directed that they had to be sure in addition to the other matters on which they were directed that the defendant did not have an honest belief in LS's consent.
55. This was not a matter raised by defence counsel, who settled original grounds of appeal and who we assume saw the written directions which the judge gave the jury. We can understand why the defence case was that this incident of sexual intercourse never took place and not that the applicant believed that the complainant was consenting. If her evidence was believed in relation to how and where the sexual incident took place, there could be no real issue as to whether he may have thought that she was consenting.
56. In their response to the grounds of appeal, trial counsel say at paragraph 75.1:

On one view of the case therefore the direction was not necessary.

57. We agree. We would simply add: on any view of the case.
58. In our view, this ground is not properly arguable.
59. For these reasons, the renewed application for leave to appeal against conviction is dismissed.
60. We turn then to the application for leave to appeal against sentence.
61. The applicant was aged 82 at the time of sentence. He had one previous conviction from 1989 that we have referred to already. He was sentenced to a term of 8 weeks' imprisonment suspended for 2 years on appeal against sentence.
62. There were victims statements from AW and LS, to which the judge referred in her sentencing remarks, but no pre-sentence report.
63. In passing sentence, the judge noted that the offending involved the applicant enticing each of his victims to his office or home, employing a ruse to get them to go there. His continuing contact after LS after the offence was an indication of his complete control over her. He had manipulated and abused her for a long time afterwards. Although the judge made clear that he was not being sentenced for that, it illustrated nevertheless the extent of his control.
64. At time of the offending the applicant was a powerful, well-known and influential man. Both victims were in awe of him. He treated them as objects for his own sexual gratification and never gave any thought to the detrimental impact his offending would have upon them. He was without doubt a sexual predator who had inflicted life-long damage to both victims.
65. AW had suffered deep psychological trauma as a result of his offending. She had been unable to sustain long-term relationships and was clearly still struggling to come to terms with what had happened. LS had sought solace in alcohol. She had suppressed her feeling over the years and had also had difficulty in forming long-term relationships. This had stemmed from the traumatic experience of being raped and controlled by the applicant. He had shown no remorse whatsoever.
66. In the judge's view, the crimes were aggravated by a number of features. First, the disparity in age. Second, the deliberate isolation of the victims in order to carry out of offences. Third, the serious psychological harm both complainants had suffered over the years. Fourth, the applicant's previous conviction for sexual assault.
67. The judge placed all the offending in category 2A of the sentencing guidelines for rape. She made an allowance because of the applicant's age, 82 years, and bore in mind the principle of totality. These sentences would be consecutive to reflect the individual gravity of the offence. She then passed the sentences to which we have referred.
68. Mr Waterman seeks to argue that the sentences on counts 5 and 6 were manifestly excessive, based as they were on the categorisation of offending as category 2A in the Sentencing Council definitive guidelines for sexual offences in relation to rape.
69. So far as count 5 was concerned, it was submitted, first, that it was impossible and unfair to attribute AW's psychological and emotional problems in later life to the applicant. The judge did not mention her complaints of serious sexual abuse at the hands of others which predated the allegations against the applicant. Second, in the absence of any medical, psychological or psychiatrist evidence the judge should not have considered the psychological harm to be severe so as to place the offending in category 2; the offending was a category 3A offence.
70. So far as count 4 is concerned, it is said that LS's victim personal statement did not describe the requisite severe psychological harm. Secondly, so far as culpability was concerned, the judge did not identify which features placed the offending into category 2A. Alcohol was not used to facilitate the offence and there was no significant planning. The offence was, Mr Waterman submitted, category 3B.
71. We are not persuaded that the overall sentence of 15 years was manifestly excessive. On count 5, the issue was the degree of harm to AW. The culpability is accepted as falling within category A. We do not accept that a judge is unable to make a finding of severe psychological harm without a medical or psychological report. The judge had seen AW give evidence and well understood her background and the other incidents in her life that may have harmed her. She was 15 at the time of the offence and an employee, and she had been groomed by the applicant, a very much older man to whom she looked up. Similar considerations applied in relation to the sentence on count 6.
72. In the case of LS also there was psychological harm which the judge was entitled to characterise as severe. She too was young - 16 - compared to the applicant, who was over 50. She too was in awe of what the single judge described as the applicant's arrogant and dominating personality. The applicant took advantage of his power and LS's sense of awe to get her to his office and rape her.
73. In relation to both these victims there was grooming: there was the offer of tickets and in the case of AW a trip in the Rolls Royce. In our view, it is plain that he took every possible opportunity to take advantage of them, to get them alone and to rape them.
74. There was no mitigation apart from his age. He did not have the benefit of a plea and there was the aggravating circumstances of his previous conviction for a sexual offence. Both sentences were in fact within the category range for category 3A - 6 to 9 years - indicating that the judge had, as she said, taken into account the applicant's age and the principles of totality.
75. In our view, neither the individual sentences nor the overall sentence can be properly described at manifestly excessive.
76. Accordingly, the application for leave to appeal against sentence is also dismissed.