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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 >> McKenning, R v [2008] EWCA Crim 2301 (7 October 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2301.html Cite as: [2008] EWCA Crim 2301, [2009] 1 Cr App Rep (S) 106, [2009] 1 Cr App R (S) 106

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		7 October 2008

Tuesday 7 October 2008

THE LORD CHIEF JUSTICE:

1. Zara McKenning is aged 22. She has no previous convictions. On 17 April 2008, in the Crown Court at Sheffield, before His Honour Judge Robinson, she pleaded guilty to doing an act tending or intended to pervert the course of public justice. On 9 May 2008 she was sentenced to two years' imprisonment. Her application for an extension of time (66 days) in which to apply for leave to appeal against sentence has been referred to the full court by the Registrar. The application for leave to appeal was deferred owing to an error in counsel's chambers. We shall not refuse an extension of time given that explanation. We will concentrate on the merits, or lack of them, in the application.
2. The story begins at about eleven o'clock on the morning of 8 December 2007. A 29 year old man went to a public house with some of his friends. The applicant arrived there about ten minutes later. We note her clothing, not because she was not entitled to wear it, but because it had a significance to the later investigation. Her clothes did not conceal her figure. The applicant sat down next to Mr Holling. They began to chat. After a while their friends all left the public house. They began to kiss, and began to kiss passionately and in public. The kissing was interrupted by two men known to the applicant.
3. At three o'clock in the afternoon the couple (as they now were) decided to leave. They went back to the applicant's home. At her home they had consensual sexual intercourse. After sexual intercourse had finished the same two men who had talked to the applicant in the public house came to her home. They saw that Mr Holling was getting dressed. He left the room and went into another room in the house. The applicant made an allegation that she had been raped. One of the two men approached Mr Holling and told him of the allegation. Unsurprisingly, he panicked. He knew the allegation was untrue, but he did not know what the consequences of the allegation might be and so he ran away.
4. The matter was reported to the police. At six o'clock that evening Mr Holling was arrested for rape. At the police station he was put into a cell. He was strip-searched in front of police officers. A medical examination was conducted. His penis was swabbed, all of his clothes were taken away, and he was forced to wear police-issue clothing.
5. The investigating officers interviewed the applicant. She maintained that a drug had been put into her drink and she asserted that Mr Holling had taken her to her home in her drugged condition and there had violently raped her.
6. Mr Holling was interviewed. He denied rape. He admitted consensual sexual intercourse. After he had been detained for twenty-seven-and-a-half hours he was released on bail.
7. The investigating officers had two conflicting stories which they investigated. They began by taking statements from people who it was known had been in the public house when the first encounter between these two individuals took place. Fortunately for Mr Holling, because of the clothing the applicant had been wearing, a number of those in the public house had a very vivid impression of the applicant and had noticed her consensual behaviour with Mr Holling when they were there kissing passionately.
8. Eventually (and the investigation took something like three months) it became apparent that the applicant had been lying when she claimed that she had been raped. It is a feature of the way in which the investigation was conducted that the officer in charge of it had rightly maintained regular contact with the applicant, who at that stage at any rate purported to be the victim of a serious rape. She therefore had ample opportunity to withdraw the allegation, to indicate that it was false and that it should not be pursued as a complaint. She said no such thing.
9. On 5 February 2008 it was put directly to her that her allegation was false. When confronted she admitted that she had lied. Accordingly Mr Holling was released from his bail.
10. The consequences to Mr Holling need no amplification. He described how he was devastated and afraid of what might happen to him, particularly because he knew perfectly well that so far as rape was concerned no such thing had occurred. When he was released from his bail he explained, "The sheer relief caused me to collapse on the floor and feel physically sick. I was, however, happy that my ordeal was over".
11. When the applicant was arrested and interviewed she said that she had made up the allegation because she had been caught by two friends of her boyfriend having had sexual intercourse with Mr Holling. She thought that they would tell her boyfriend (he was in prison at the time), and that he would be violent towards her if he heard that she had had sexual intercourse with another man.
12. The boyfriend was in fact released shortly after this incident. He assaulted the applicant and was in due course returned to prison following that assault. There was, therefore, ample opportunity for her to tell the truth.
13. The pre-sentence report referred to the applicant's remorse. It explained that she appeared to understand how an innocent victim of such an allegation could have been distressed enough to have thoughts of suicide. She accepted full responsibility for her actions. The assessment was that the offence occurred because she was immature. She displayed a complete lack of understanding of the grave consequences of her lie. The alcohol she had taken on the day in question would have impaired her thinking. There was, it was said, a low risk of re-offending.
14. The judge was rightly concerned about this crime. It was submitted to him, as it has been submitted to us both in written grounds of appeal and now today by Miss Wrattesley in the course of her submissions, that account had to be taken -- and for present purposes it is contended that the judge had failed to take sufficient account -- of the guilty plea tendered by the applicant at the first available opportunity and of her previous good character. It was pointed out that the offence was motivated by the applicant's wish to protect herself from her boyfriend. There was no other aspect of malice or profit in the allegation. It was not premeditated. It was said in the written argument that although the victim had the allegation hanging over him for a number of months, he was never actually charged with rape. In the submissions this morning it was pointed out that the applicant's difficulty was, among other things, the lack of insight into her offence. Emphasis was placed on the fact that there would be a low risk of any further offending.
15. Our attention has been drawn to a number of cases. They were not, as far as we are aware, before the judge; but they do not sufficiently focus on the serious policy question which the judge addressed. The judge noted the effect of this offence on the victim, Mr Holling. He pointed out that the full panoply of measures to help women who were genuinely victims of rape had been deployed; all that was wasted; the victim suffered the humiliation to which we have referred in the course of the narrative. There had been ample opportunity for the applicant to tell the truth and bring the ordeal to an end. He referred to the so-called "low conviction rate" for rape, much of which, the judge said, was ill-informed, but he pointed out that when the public knew that people like the applicant were wicked enough falsely to cry rape, that would affect the minds of juries assessing the evidence of genuine victims.
16. Our view can be briefly summarised. We endorse the approach taken by the judge. This was not, as so many cases involving the offence of doing an act tending or intended to pervert the course of public justice, a case of a guilty man or woman seeking to avoid responsibility for a crime -– often and frequently a relatively minor motoring offence. That is bad enough; but of its kind this was a very serious offence. Sexual intercourse with a woman without her consent is a shameful crime. When proved it merits, and it receives, heavy punishment. The reality must, however, be faced that when rape has taken place it is frequently very difficult to prove. It is also the case that when the defendant is truly innocent, a false allegation can be extremely difficult for him to refute. That is why, after sexual intercourse has taken place between adults, the investigation and prosecution of the allegation of rape presents the police and the Crown Prosecution Service, and, if the matter eventually goes to court, the jury with highly sensitive and sometimes desperately difficult decisions. Currently this is a very serious problem. The consequences for an innocent man against whom the allegation is made are very serious. In this case there was enough independent evidence eventually to enable the investigators to discover that the potential defendant was truly an innocent man. In the end he was fortunate. But for the meantime his entire life must have had a nightmarish quality. That lasted for three months. It could have been brought to an end at any time by one word from the applicant.
17. However, quite apart from the consequences to Mr Holling, this allegation involves more than the individual victim. Every false allegation of rape increases the plight of those women who have been victims of this dreadful crime. It makes the offence harder to prove and, rightly concerned to avoid the conviction of an innocent man, a jury may find itself unable to be sufficiently sure to return a guilty verdict.
18. This offence caused great problems for the victim; but it also damaged the administration of justice in general in this extremely sensitive area. In our judgment the sentence imposed by the judge fell within the appropriate range. Accordingly the application for leave to appeal against sentence will be refused.