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IN THE COURT OF APPEAL
CRIMINAL
DIVISION
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The Law Courts 50 West Bar Sheffield S3 8PH |
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18th November 2014 |
B e f o
r
e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
and
MR JUSTICE COULSON
and
MR JUSTICE GLOBE
____________________
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R E G I N A |
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- v - |
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STEVEN ALLAN PIPE |
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Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
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(Official Shorthand Writers to the Court)
____________________
Mr M Greenhalgh appeared on behalf of the Appellant
Mr
R
J Doswell appeared on behalf of the Crown
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HTML
VERSION
OF JUDGMENT
____________________
Crown Copyright ©
THE LORD CHIEF JUSTICE: I will ask Mr Justice Coulson to give the judgment of the court.
MR JUSTICE COULSON:
Introduction
- The appellant is now aged 31. On 23
rd
May
2014
in the Crown Court at Bradford before His Honour Judge Hatton QC and a jury, the appellant was convicted of three counts of sexual activity with the complainant, a 15 year old girl. They were all specimen counts. He was sentenced to a total of nine years' imprisonment. He appeals against both his conviction and his sentence with the leave of the single judge.
The point in issue on the conviction appeal
- The point in issue on the conviction appeal is simply stated. Although the appellant admitted a physical element in his
relationship
with the complainant, "LC", he denied the sexual offences with which he was charged and said that they were fabricated. Accordingly, the credibility of the complainant was in issue. She gave evidence in chief by way of her
video-recorded
interview. She was cross-examined over the live link, but plainly found the experience extremely distressing. There were a number of breaks. Eventually, so tangible was her distress that the judge concluded that the cross-examination should not continue. Having considered the matter further, he decided that the trial could continue. It is that decision which lies at the heart of the appeal against conviction. No criticism is made of any of the judge's subsequent directions to the jury by Mr Greenhalgh who appears for the appellant, and who made to us this morning clear, concise and
realistic
submissions.
The evidence in the case
- The appellant worked with a woman "Z". The complainant was Z's sister. She lived with her. For some months, between September and December 2009, the complainant moved in with the appellant and his wife. After she
returned
to live with Z, she continued to see the appellant up to and beyond her 16th birthday in March 2010. Later that year the complainant went on holiday with the appellant's family to Ibiza. It was the prosecution case that during this period there was a sexual
relationship
between the complainant and the appellant. When the complainant lived with the appellant there were said to be numerous instances of digital penetration (count 1) and sexual intercourse (count 2). Count 3 alleged further incidents of sexual intercourse after the complainant had gone back to live with her sister, but before her 16th birthday in March.
- The appellant said that the allegations had been fabricated, and it was said that the complainant had a history of mental illness and was therefore an unreliable witness.
- As we have said, the complainant's evidence in chief was by way of her
video
interview. She said that she lived with her sister Z who worked with and became close friends with the appellant and his wife Lucy. Even before she went to live with the appellant for those few months in 2009, he began to text her, sending her messages such as "I hope you haven't got a boyfriend". Once the appellant had moved into the appellant's home, he became increasingly tactile. He would touch her legs and hug her. She said that he would get her drunk and then started to take off her clothes. She had never had a sexual
relationship
before. He digitally penetrated her and then progressed to sexual intercourse. He told her that bad things would happen to her if she told anyone. He gave her money. He told her that sex would be "more exciting" before she was 16. She said that they began to have sexual intercourse every three or four days. He became increasingly controlling.
- After the complainant
returned
to live with Z, she said that the appellant would find out when Z was not there and was staying with her boyfriend. He would then arrive at Z's home to see the complainant and they would have sexual intercourse. She said at one point he had said that they would
run
away together.
- In her
video
interview she spoke about her bleeding and being in pain during sexual intercourse with the appellant. Sometimes he would stop and tell her that they would do it another day, but on other occasions he became angry.
- During her cross-examination it was put to her on a number of occasions that she was lying and had fabricated the allegations. She denied that. She was asked why she had not spoken to the appellant's wife Lucy about what had happened. It was also pointed out to her that there was no evidence of blood found on carpets or bedding. In addition, there was extensive cross-examination about her mental illness, during which she said she believed that somebody was going to kill her. She said that she had told doctors that she had been groomed by "a 30 year old man" and spoken about a man who gave her pills. At one point she had
referred
to a man with "a portfolio of pictures who disrupted [her] sleep". She said that that was the appellant.
- It was at this point in the cross-examination that the complainant's distress led the judge, with the agreement of all parties, to bring her evidence to an end. We will
return
to that feature of the trial a little later.
- Thereafter, her sister Z gave evidence. After the complainant had
returned
to live with Z, she said they all went on holiday to Ibiza. She noticed animosity between Lucy and the complainant, and also that the
relationship
between the appellant and Lucy was strained. It was Lucy who told Z that the appellant had been having a sexual
relationship
with the complainant. The complainant subsequently confirmed to Z that that was true. On one occasion Z had decided to
visit
Lucy, but
received
a text message warning her off, saying that the appellant "had just admitted it", and that she should not
visit.
Z subsequently
received
a text message from the appellant saying: "
Really
sorry. It just happened. Can we keep this and work separate?"
- Z agreed that the complainant had mental health difficulties and lacked confidence. She was
vulnerable
and easily upset.
- When she was cross-examined, Z agreed that she had previously said that the complainant often lied and cheated. She had been
very
angry to learn of the appellant's
relationship
with her sister. At work the appellant told their colleagues what had happened, but said that the complainant was lying.
- There was also evidence from Lucy, the appellant's former wife, confirming, amongst other things, that the holiday had been a disaster because the appellant had wanted to spend his time with the complainant and kept buying her drinks. The complainant had seemed angry all the time. Lucy said that in May 2011 the complainant texted her, saying that she had been sleeping with the appellant from when she had moved in with them in 2009 up until that holiday. The appellant denied that to Lucy when she first confronted him, but a few days later, when Lucy told him that she wanted to see him and the complainant together, the appellant admitted that he had slept with the complainant. He subsequently made further admissions to her. Lucy had sued for divorce on the grounds of the appellant having had an extramarital affair between October 2009 and June 2009, and the appellant signed and agreed the petition.
- There was also evidence from Louise Kershaw, a housing support worker, who said that the complainant was
vulnerable
and had low self-confidence. In July 2012 she told Louise Kershaw that she had been sexually exploited by a family friend when she had been about 14 and he had been about 30. She said that she felt the family friend had had power over her.
- In his interview, the appellant accepted kissing and cuddling the complainant, but denied a sexual
relationship.
He said that he thought that the kissing and cuddling amounted to an extra-marital affair.
- When he gave evidence, the appellant said that the complainant had come to live with them because Z had not been coping. He found the complainant quiet and moody. He spent little time alone with her. He said there had been no sexual contact of any sort, although he agreed that he sent "flirty" text messages to her after the holiday in Ibiza, and that on one occasion they had indeed kissed and cuddled. He said that she had wanted him to leave Lucy and move in with her, but he had
refused.
He agreed that when Lucy had challenged him as to their
relationship
he had said that he had had an affair, but that meant just kissing and cuddling. He said that he had not told anyone that he had slept with the complainant because he had not. He said that he thought the complainant was 15 or 16. He thought it was possible that the complainant had fabricated the allegations because she had felt guilty.
The position at the time that the complainant's cross-examination was stopped
- At the time that the complainant's cross-examination was stopped, the critical element of the appellant's defence had been put to her. It had been made plain to her on a number of occasions that the appellant said that was lying about what she said had happened. She
repeatedly
denied that. Furthermore, she had been asked a lot of questions about why she had not spoken to others at the time, and the absence of other evidence corroborating her account. In addition, she had been asked, and had answered, a number of questions concerned with the state of her mental health and the extent to which she was capable of making up allegations of this sort.
- Mr Greenhalgh said that at the time of the judge's
ruling
he had another fifteen or twenty minutes worth of cross-examination left. It is said that the
remaining
questions would have gone to the complainant's medical
records
and possible inconsistencies between them and what the complainant said in her evidence.
The Judge's
Ruling
- In his
ruling
the judge summarised in detail the course of the complainant's cross-examination on the afternoon of Tuesday 20th May and the morning of Wednesday 21st May. He described the breaks that had occurred on both the Tuesday and the Wednesday, and the difficulties that became insurmountable on the Wednesday morning when the complainant was begging to leave the building. Although the trial was adjourned until 2pm, and it seemed as if it might be possible to
resume
her evidence, the judge
received
information that the complainant was
vomiting.
He spoke to the complainant in open court through the live-link. His
ruling
went on:
"She was breathing heavily and appeared to be hyperventilating. Her distress was tangible. I spoke to the lady attending her, the psychiatric nurse – I should say I had given her leave to enter the
room
with her. Her belief was that given time it might be possible that [the complainant] would be in a fit state to continue her evidence. That did not appear to me from my observations to be
realistic
and I was fortified in that because both counsel agreed. Defence counsel, Mr Greenhalgh, … had considerable
reservations,
understandably, about the jury seeing her in that condition or of even taking the
risk
that she might
return
to that condition before he had finished cross-examining her."
In all those circumstances the judge
released
the complainant from giving any further evidence. In his
ruling
the judge went on to say that, notwithstanding that the cross-examination of the complainant was incomplete, the trial could and should continue. He said this:
"My primary consideration was of course whether the [appellant] could in those circumstances have a fair trial. I took the
view
that he could and take the
view
that he has. The cross-examination of [the complainant] was substantially complete. The [appellant's] case had been fully put to her and dealt with by her and more than once it had been suggested to her that her allegations were false and she had
responded
to that. The potential motives and
reasons
why her allegations might be false had been explored with her.
What
remained
was largely, if not entirely, medical
records
which might have
revealed,
depending on the jury's assessment, some inconsistencies in what she had said. Those
records
could, I believed, be
reduced
to agreed facts, and that is what has happened. What is missing and all that is significantly missing is her explanation of any of those
records.
The absence of her explanation, if any, does not in my judgment prejudice the [appellant], the jury having the
records
themselves. Furthermore, the evidence of the complainant was not and is not the sole evidence in this case; the [appellant] is said to have made an unambiguous admission of his offending to his former wife. I was therefore, and
remain,
satisfied that the trial could properly continue fairly and without prejudice to the [appellant]."
The Law
- The fact that a complainant is unable to complete his or her evidence is not necessarily a bar to the trial continuing. In
R
v
Stretton and McCallion (1988) 86 Cr App
R
7, the complainant was cross-examined for some time but became ill and was incapable of continuing to give evidence. The trial judge allowed the trial to continue, but gave the jury a clear warning as to how they should approach their task. Following conviction the defendant appealed. It was held that the trial judge had a discretion to allow the trial to continue in circumstances where the medical evidence showed that it would be undesirably, and forensically most unfair, to have the witness back in the witness box, or to be called in a new trial. It was held to have been a correct exercise of the judge's discretion to continue the trial. He had given the jury the clearest possible warning about the potential unfairness to the defendant.
- Similarly, in
R
v
PM [2008]
EWCA
Crim
2787, a
vulnerable
witness appeared to sustain a panic attack during cross-examination and could not continue. The judge gave proper warnings and directions (although he gave an erroneous direction about the
reading
of the statement). On appeal, despite the erroneous direction, this court said that the judge had been in the best position to determine whether a fair trial was possible. It was stressed that his judgment should not be interfered without unless it was outside the
range
of
reasonable
conclusions that could have been
reached
in the circumstances. It was for the jury to form a judgment on whether the factors from independent sources undermined the credibility of what the witness had said in evidence; and the truth of the allegations could be tested by means other than cross-examination and did not depend entirely on who was to be believed.
Analysis
- On our analysis of the circumstances that occurred in this case, no criticism can be made of the trial judge's
ruling.
There is no dispute that the complainant was not in a fit state to continue her cross-examination. Moreover, it was wholly unrealistic to conclude that there could be a fresh trial. Given the complainant's
reaction
at this trial, there was no
reason
to believe that her
reaction
would be any better at a later trial, and every
reason
to believe that it might have been worse. Indeed, the probability is that she would simply not have
returned
for a second trial.
- Accordingly, the critical
remaining
issue is the extent to which the appellant could have a fair trial if it continued with the complainant's evidence having been cut short in the way described. That was the issue identified by the trial judge in his
ruling.
It is that
ruling
that Mr Greenhalgh sets up as being the point of criticism in this appeal.
- His criticisms were, in our
view,
entirely measured and
realistic,
but we have no doubt that, for the
reasons
given by the judge, it was indeed perfectly possible for the appellant to have a fair trial, notwithstanding the circumstances that we have described. We articulate, briefly, the
reasons
for that.
- First, the appellant's principal defence, to the effect that the allegations against him were fabricated, was fully put to, and explored with, the complainant. Accordingly, there was more than enough material to assist the jury on the critical question as to whether or not they were sure that the complainant was telling them the truth about what she said the appellant had done.
- Secondly, the subsidiary issue (the alleged fragile state of the complainant's mental health) had also been explored with the complainant in her cross-examination. Aspects of her illness had been pursued with her, including the fact that she suffered from a psychotic illness in 2012, during which she believed that someone was going to kill her. Again, therefore, it could not be said that the premature cessation of her cross-examination prevented the jury from having a clear understanding of that issue.
- Thirdly, the only element of the cross-examination that was cut short was an examination with the complainant of her own medical
records.
This would have
related
to potential inconsistencies between what she said during her evidence and what she had said at the time of the medical appointment. The judge
ruled
that there was no prejudice to the appellant because the
records
(and thus the inconsistencies) could be
reduced
to agreed facts and placed before the jury in writing. That is what happened. In our
view,
the judge was
right
to
reach
that conclusion. In cases of this sort, it is often unnecessary and inappropriate for a complainant to be dragged through their own medical
records
in huge detail, particularly where any potential inconsistencies can be identified and be the subject of written admissions.
- In addition on this point, the judge noted that on analysis the cessation of cross-examination would not affect the appellant's ability to
rely
on the alleged inconsistencies, and would instead deprive the complainant of the opportunity of explaining any such inconsistencies. He
reached
the conclusion that that, therefore, could not possibly prejudice the appellant. Again, we agree with him.
- Finally, we note that, while the complainant's evidence was obviously
very
important in this case, it was far from being the only evidence against the appellant. We have already
referred
to the evidence from Z, the appellant's alleged admission to Lucy (his then wife), his own admission in evidence as to kissing and cuddling the complainant, and the text messages.
- For those
reasons
we consider that the judge properly exercised his discretion in continuing with the trial following the cessation of the complainant's cross-examination. We pay tribute to the clarity and economy of his stated
reasons
for so doing.
- In those circumstances the appeal against conviction is dismissed.
The appeal against sentence
- In his sentencing
remarks
the judge noted that, before the complainant moved in with him, the appellant began grooming her by text, eying her as a potential source of sexual gratification. The judge noted that she was a
vulnerable
young girl, unhappy, naïve, immature, quiet and lonely. He said that the appellant had taken advantage of her
vulnerability,
and, despite the fact that she was living at his house, where she should have been under his protection, he forced his attentions upon her. He plied her with alcohol and filled her head with "spiritual mumbo-jumbo". There were many offences of digital penetration and full sexual intercourse in which the complainant was not a truly willing participant. She was confused and did not know what to do, how to
react,
or how to extricate herself. The appellant knew that she was 15 and had told her that she should have sex before she was 16, because it was more exciting. Her distress when
re-living
those events, said the judge, had been tangible.
- The judge noted that it was agreed that this was a category 1A offence by
reference
to the Sentencing Council's new guideline on sexual offences. For a one-off offence it
recommends
a starting point of five years' custody, and a
range
of four to ten years. As we have said, the judge imposed for these three counts a total term of nine years' imprisonment.
- It is accepted on behalf of the appellant that this case fell into category 1A. It is also accepted that the appropriate sentence should have been higher than the
recommended
starting point because the aggravating factors outweighed the mitigating factors. However, Mr Greenhalgh submits that, particularly given the absence of any previous convictions on the part of the appellant, and the absence of any
violence,
the term of nine years was manifestly excessive.
- It is
right
that this offending falls within category 1A. The harm was in category 1 because it involved the penetration of the complainant's
vagina
by the appellant's fingers and subsequently his penis. Culpability was in category A because it involved planning, the use of alcohol, grooming behaviour, and a gross abuse of trust.
- In addition, there were additional aggravating factors which would then take the offending toward the top, if not to the
very
top, of category 1A, including: (1) the fact that the appellant ejaculated; (2) that the offending occurred in his own home; (3) the threats he made if the complainant told anyone about what they had done; and (4) the period of time over which the offending occurred.
- As to the mitigating factors identified in the guideline, the principal mitigating factor in play was the absence of previous convictions.
- In his written submissions Mr Greenhalgh argued that there can sometimes be a
risk
of double counting between those factors which put the offence into category 1A in the first place and those matters which might otherwise be
regarded
as aggravating features of the offending. Although that can, in theory, sometime occur, we are firmly of the
view
that there is nothing to indicate that it happened here.
- In addition, in this case we consider that the critical factor for sentencing purposes, once the category had been identified, was the fact that this was far from being a one-off offence. Here the appellant's offending
resulted
from an extensive campaign of sexual abuse against a
vulnerable
15 year old. The three counts on which he was convicted were all specimen charges. Both his digital penetration of the complainant, and the subsequent full sexual intercourse, occurred
repeatedly
throughout the months that she was living at the appellant's house, and afterwards. We have already
referred
to the evidence that they had sex every three or four days.
- In our judgment, whilst the Sentencing Council's guidelines are a useful indication of the appropriate
range
for this kind of offending, it is critical to
remember
that they start from the position of a single offence. If, as here, an offender is convicted of numerous,
repeat
offences, then he or she can expect a sentence which is towards, or at the
very
top of, the
recommended
range
within the category in which that offence falls.
- Category 1A has a
recommended
range
went up to ten years. Even allowing for the appellant's good character, we are bound to conclude, by
reference
to the guidelines, that the total term of nine years' imprisonment identified by the judge, after conviction, was neither wrong in principle nor manifestly excessive. Indeed, we consider it to be the appropriate sentence in this case.
- For all those
reasons, and despite Mr Greenhalgh's attractive submissions, this appeal against sentence is also dismissed.
___________________________________
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