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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 >> R v Pedley [2014] EWCA Crim 848 (05 March 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/848.html Cite as: [2014] EWCA Crim 848

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5 March 2014

LORD JUSTICE FULFORD:

1. Introduction
2. On 10th January 2013 in the Crown Court at Wood Green, the applicant, who is aged 39, was convicted of two counts of rape. On 8th March 2013 His Honour Judge Carr sentenced him to an extended sentence of 14 years' imprisonment, made up of a nine year custodial term and a five year extension period. The Registrar referred his applications for leave to appeal against conviction and sentence to the full court.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. No matter relating to the victim shall be included in any publication during her lifetime if it is likely to lead members of the public to identify her as the victim of these offences.
4. The facts
5. The complainant first came across the applicant a week before the incident. She had been shopping with a friend when they encountered the applicant and a friend of his called Rajay. She exchanged telephone numbers with Rajay and they agreed to see each other again on 27th April 2011. When they met up as arranged, Rajay was with the applicant and the complainant understood that they were cousins. They had a drink in a local park and visited a flat where they met a man the complainant believed was their grandfather.
6. After they left, the complainant realised she had left her mobile telephone behind and they returned to collect it. Once inside the flat, she and Rajay shut themselves in the bathroom in order to spend some time together alone. However she declined an offer to accompany him to his flat and he said he would walk with her to the bus stop.
7. When they left the flat the complainant noticed that the applicant was agitated. He said he wanted her to stay and that she should not go home. He asked her whether they had done something wrong. She told him she simply wanted to go home. The applicant then grabbed her and carried her up the stairs. She struggled and asked him to put her down, but he carried her up four or five flights of stairs. He stopped in a stairwell and placed his hands around her neck. Rajay tried to stop the applicant, but the latter pushed him away. The applicant pulled down the complainant's trousers and underwear and he raped her vaginally and orally. He ignored her pleas to stop. He ejaculated on the floor. She pulled up her clothing and Rajay tried to console her. He told her to go to the police.
8. Although there were police cars in the vicinity, the complainant simply wanted to get away from the area. She went to a friend's house because she could not face telling her parents about what had occurred. The following day she told a friend she had been raped and a little later she went to the police.
9. AS, a friend of the complainant, stated that at some point in April 2011 she had been with the complainant at a shopping centre when they met two black men, although the description she provided of the applicant did not match his appearance. Telephone numbers had been exchanged and she spoke with the complainant twice later that day. The complainant was distressed when she spoke with her early the following day and the complainant told AS that the cousin of the man they had met the day before had raped her.
10. The complainant's evidence was supported by CCTV footage of the applicant picking her up and carrying her upstairs. It was decided that DNA testing would not have any utility because inter alia the complainant had bathed and eaten before reporting the incident.
11. There was medical evidence to the effect that the complainant reported that there were tender areas to her neck and in the middle of her back. She also had difficulty swallowing which was consistent with her account of strangulation. There were no visible signs of injury on her body, but the doctor observed that injuries can be difficult to observe on someone of Afro Caribbean descent and it was also possible that bruises had not formed at the time of the medical examination. Although there were no signs of injury to the complainant's genitals or mouth, it was accepted that the absence of evidence of this kind is not indicative of whether a sexual assault had occurred.
12. The complainant picked out the applicant during an identification procedure. The police were unable to trace Rajay or the man whose flat they had visited and the victim declined to give the police her telephone for analysis.
13. The applicant largely declined to answer questions during the interview that followed his arrest.
14. During his evidence at trial, the applicant said that he and Rajay met the complainant about a month before the incident in a bar. He understood her to be called Rachel, which was not her real name. He maintained they met a few times after this initial encounter.
15. On the day of the incident they bumped into her in a bar and they visited a friend at his flat. That friend became annoyed when the complainant spent a certain amount of time alone with Rajay in one of the rooms in the flat and as a result he asked them to leave. The applicant was embarrassed and when he asked the complainant and Rajay what had happened, according to him they did not provide a "straight" answer.
16. The applicant said that partly as a joke he picked up the victim and carried her up a flight of stairs. She then walked with him up the next four or five flights. He said she was laughing and joking throughout this time. When Rajay caught up with them, they all went their own separate ways. He denied that any sexual contact had occurred.
17. The defence case was therefore - clearly by implication - that the complainant had lied and that she had invented the allegation of rape.
18. The rulings:
19. The bad character of the applicant
20. The prosecution applied to admit the evidence of the applicant's bad character (a conviction for wounding and a number of domestic burglaries). The applicant's case was, in reality, that the victim had lied when she alleged that he had raped her and that other aspects of her account were also untrue, such as how they met. The prosecution suggested that in those circumstances his case involved a direct attack on her character.
21. The judge concluded that it was difficult to imagine a clearer case than the present in which sections 101(1)(g) and 106(1)(b) of the Criminal Justice Act 2003 ("CJA") were engaged following an attack by an accused on another person's character. The allegation by the applicant at trial was that the underlying allegation by the applicant at trial was that the complainant had entirely fabricated a series of events including a violent rape.
22. The judge was of the view that the real question raised by the application was whether the evidence should be excluded on fairness grounds under section 101(3) CJA and section 78 of the Police and Criminal Evidence Act 1984. The judge concluded there was no risk to the fairness of the trial, particularly given he intended to direct the jury in clear terms as to how to approach this evidence. In his judgment the jury were entitled to know the character of the man who alleged that the complainant had fabricated her evidence in the way that we have described.
23. Finally the judge limited this evidence to the wording of the charges and the dates of the various offences and convictions.
24. Bad character of AS
25. The defence applied to admit the suggested bad character of AS. She was questioned by defence counsel, Miss Goodall, on the issue of whether the telephone call in which the victim complained of rape had taken place. The basis of the bad character application was that AS had been a reluctant witness and had at one stage lied to the police in an attempt to avoid attending court. A message had been received that the witness was not able to attend at court because she was due to take exams at a university. This was not the true reason for her absence. She gave evidence in due course, as set out above.
26. The applicant indicated that he wanted to investigate why she was reluctant to attend court and to suggest to the jury that her reluctance tended to demonstrate she was lying. The judge observed she had given evidence and she seemed to be doing her best to answer questions to the best of her ability. The judge indicated that she did not appear to be a witness who had been put up to giving a false version of events.
27. The defence application was advanced on two bases. First, it was suggested that the evidence was admissible under section 98 CJA on the basis that the witness's reluctance to attend court and the lies she had told in order to avoid attending court amounted to misconduct in the context of the investigation or prosecution of these offences. In giving his ruling on this limb of the application, the judge did not accept that section 98 applied to the situation and he indicated that in any event the defence had failed to demonstrate that the evidence was relevant to the issues in the trial.
28. Second, it was argued that this evidence constituted bad character for the purposes of section 100 CJA and it was suggested that it had substantial probative value and importance in the case. The judge concluded the evidence demonstrably failed to satisfy this test. Instead, in his judgment this was simply an attempt to muddy the waters with material that had no evidential value. The judge observed that the defence was fabrication and the applicant was entitled to suggest to the jury that the complainant must have invented this false story before she made complaints to her friends.
29. The grounds of appeal against conviction
30. Ground 1: The applicant's previous convictions
31. It is suggested the judge erred in his ruling that the applicant's previous convictions were admissible pursuant to section 101(g) CJA 2003. Alternatively it is argued the judge erred in failing to exclude the applicant's previous convictions pursuant to section 101(3) CJA 2003.
32. In support of this contention it is argued by Miss Goodall that the cross-examination of the complainant did not amount to an attack on her character. It is suggested "the defence advanced was no more than a clear denial of the nature and detail of the prosecution allegation". In this regard, Miss Goodall emphasises that she limited her cross-examination, first, to testing the complainant's account, and second, to putting the alternative scenario that was a part of the applicant's instructions without explicitly accusing the complainant of lying or having fabricated an account. By reference principally to the decision of the House of Lords in Selvey v DPP [1970] AC 304, it is contended that this was no more than an emphatic denial of the charge that should not have been regarded as an imputation on the character of the complainant. Moreover, it is noted that the judge failed to give defence counsel a warning that the questioning may expose the defendant to the risk of cross-examination as to his character. In any event, it is suggested that the prejudicial impact of the applicant's convictions should have led the judge to conclude, applying section 101(3) CJA, that fairness required their exclusion particularly given the wounding conviction creating the risk that the jury would impermissibly conclude that the applicant had a propensity to act in a violent way. It is suggested that any imputation against the complainant was a necessary part of the applicant's case.
33. The applicant links the suggested effect of these convictions to the explicit references by the judge during the summing-up that the applicant's case was that the victim had "lied about absolutely everything", that she had "invented a fairytale" and she had told "a tissue of lies", thereby making serious allegations against her.
34. Ground 2: The bad character of AS
35. It is contended that the judge incorrectly prevented the defence from investigating this witness's reluctance to attend court and the lies that she told in this regard (the defence application under sections 98 and 100 CJA). It is argued that her reluctance to attend court and the lies she told in the attempt to avoid testifying were of direct relevance to her reliability and credibility and it is suggested her creditworthiness was a matter in issue in the proceedings under section 100(1)(b) CJA, and her reluctance to attend and her preparedness to lie were relevant to her likely standing in the eyes of the jury.
36. Finally, it is contended that the judge was improperly influenced by his own assessment of the witness and it is argued her evidence which was a matter for the jury.
37. The statutory provisions
38. The relevant legislation is as follows.
39. Section 98 CJA:

i. "'Bad character'

ii. References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(b) has to do with the alleged facts of the offence with which the defendant is charged, or

(c) is evidence of misconduct in connection with the investigation or prosecution of that offence."

40. Section 100:

i. "'Non-defendant's bad character'

(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

(a) it is important explanatory evidence.

(b) it has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and

ii. (ii)is of substantial importance in the context of the case as a whole."

41. Section 101 CJA:

i. "(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

ii. ...

iii. (g) the defendant has made an attack on another person's character...

iv. (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

42. Section 106:

i. "'Attack on another person's character'

(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if—

(a) he adduces evidence attacking the other person's character

(b) he ... asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so ...

(2) In subsection (1) 'evidence attacking the other person's character' means evidence to the effect that the other person—

(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or

(b) has behaved, or is disposed to behave, in a reprehensible way;

ii. And 'imputation about the other person' means an assertion to that effect."

43. Discussion
44. The suggestion by Miss Goodall for the applicant that these convictions should not have been admitted because the defence amounted to no more than an emphatic denial of the charges is misconceived. In R v Hanson [2005] 2 CrAppR 21, [2005] EWCA Crim 824, this court indicated that the pre-2003 authorities will continue to apply when assessing whether an attack has been made on another person's character to the extent that they are compatible with section 106 CJA [14]. In a series of authorities that includes R v William Jones (1924) Cr.App.R 17, page 117, it has been established that a line is drawn between words which are simply an emphatic denial of the evidence and words which attack the conduct or character of the witness. To adopt the language of the concluding part of the judgment of the Lord Chief Justice in Jones, it is one thing for the applicant to deny that he had acted as alleged, but it is another thing entirely to suggest that the whole allegation against him is a deliberate and elaborate concoction on the part of the principal witness. The questioning of this complainant, by necessary implication given the alternative scenario that Miss Goodall suggested to her, plainly constituted a significant attack on her evidence and character, however politely or gently it was put. In reality, as Mr Markham for the prosecution puts the matter, it was being contended that the complainant had advanced a series of falsehoods. Neill LJ made clear in R v Alan Carl Owen (1986) 83 Cr.App.R 100, 104:

i. "Where explicit allegations of the fabrication of evidence have been made against prosecution witnesses [the judge's] task will be easy."

45. A little later in the judgment he added:

i. "(5) In the normal and ordinary case, however, the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked ... If imputations on the character of a prosecution witness have been made and if there is a real issue about the conduct of that witness which the jury will inevitably have to settle in order to arrive at their verdict, then, in the words of Devlin J delivering the judgment of the full court in Cook (supra) at page 143 and page 348 of the respective reports, ' ... the jury is entitled to know the credit of the man on whose word the witness's character is being impugned'. Devlin J was considering the case of a police officer whose evidence had been attacked, but it seems clear that the same principle is to be applied in the case of any important witness against whom such an imputation has been made and about whose conduct the jury will have to reach a conclusion."

46. That approach is applicable to the present case. By necessary inference, even if it was not put in stark terms, it was being alleged against the complainant that she had invented an account which was false in nearly every respect and it included the allegation that the applicant had briefly abducted her, used force against her and then raped her twice. By suggesting an alternative scenario based on the applicant's instructions, as was her duty, Miss Goodall was in reality making a strong imputation against this witness and the judge was fully entitled to conclude that this amounted to an attack on her character. Indeed, Miss Goodall was under an undoubted duty to confront the witness with the reality of the defence case, and we have some concern that she may have attempted to avoid this responsibility, notwithstanding the account that she knew the appellant was give in evidence later in the case. The language used by the judge in the summing-up to describe the appellant's case as regards the victim's evidence, as set out above, was no more than a graphic way of setting out his defence in this regard. He may have used vivid language but it essentially reflected the reality of the competing cases.
47. Fairness did not dictate that the judge should have excluded the evidence of these four convictions. We note that none of them related to sexual offences and the judge made it clear to the jury during the summing-up that the evidential value of this material was limited as follows:

i. "Now you then heard a number of pieces of general information about the investigation and the defendant.

ii. And the first thing you heard was that he has a conviction, or in fact.

iii. A number of convictions, all dealt with on the same day, which was the 24th July 2009: one conviction was for wounding; And the other five were burglaries, four of which were domestic and one of which was non-domestic, occurring in 2007 and

iv. 2008. And he pleaded guilty to those offences.

v. Now what is the relevance, or potential relevance, of hearing of that conviction?

vi. Well the answer is this. It has been put before you for a limited reason and must be used for that limited reason only. And, in simple terms, it is really levelling the playing field. The situation in this case is the defendant has said that the complainant has created a tissue of lies, not just about the events on the stairwell but about in effect everything that happened that day, save that which is caught on CCTV. That she ... That it is not a situation where they had some form of sexual contact which she resisted or later regretted. But that she has come before you, as she came before the police, and discussed a series of sexual acts that simply never happened, at a point of time when all they were doing was talking to each other without physical contact.

vii. And you are therefore entitled to know the person who is making that serious allegation against somebody - and that is what I mean by levelling the playing field - if you know, therefore, he is a person who has been in trouble in the way that he has been described.

viii. But that is the limited way in which it is relevant.

ix. What you must not do is use the conviction to show he has a propensity or a pre-inclination to commit the offence of this sort, or any offence. That is not its purpose and that is not how it is to be used.

x. Nor is it to be used simply to build prejudice against the defendant; it has no purpose in that way.

xi. Nor would you begin to convict somebody wholly or mainly because they have got previous convictions. That would be perverse.

xii. It is simply a very small part of the overall jigsaw, if part at all - you will decide - to know the person who is saying what is being said. But please do not use it, or be tempted to use it, in any more extended way."

48. That was an entirely appropriate direction that ensured the jury would apply a correct approach to these previous convictions and the judge ensured that they would not conclude that the conviction for violence demonstrated propensity on the part of the applicant to attack other people or that any of the convictions revealed a tendency to commit criminal offences. The failure by the judge to give a warning is not fatal to a conviction (see R v Benson (1910) 3 Cr.App.R 70). In any event, the presentation of the applicant's defence rendered it inevitable that the prosecution would apply to introduce these convictions. It follows we are wholly unpersuaded by Miss Goodall's submissions on this ground of appeal.
49. Turning to the application to question AS about her reluctance to attend court and a lie or lies that she told in an attempt to avoid giving evidence, the gateway to admissibility is via section 100 CJA unless section 98(b) CJA applies. Under section 100 CJA in order for the evidence to be admissible it must be important explanatory material which has substantial probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole. This evidence failed to meet any of these requirements. It was undoubtedly the case that the complainant reported the alleged rape to friends and to the police, and the evidence of AS in this regard was simply that she also had been told by the complainant some hours after the alleged attack had occurred (in the early morning the following day) that the applicant had raped her. Whether the first complaint was to AS early on the day following the rape or a little later when she spoke to other friends and to the police, was not an issue in the proceedings that had any substantial importance in the context of the case as a whole, given on either basis the victim had a significant opportunity (viz. some hours) to invent a false account. The reluctance on the part of the witness to attend court did not constitute important explanatory material on an issue of substantial importance.
50. Section 98(b) CJA, albeit drawn in vague terms, is not limited to conduct by the prosecuting authorities (see Apabhai [2011] 175 JP 292). However, whether or not this provision applied in these circumstances, we do not consider that this evidence was even potentially admissible via this route because the proposed cross-examination was essentially irrelevant to any of the live issues in the case and the judge was right to prohibit this questioning. An investigation as to the precise timing of the first complaint by the victim would have constituted, as the judge described the matter, "a complete red herring."
51. It follows we consider that there is no foundation to the complaints that are made as regards the judge's rulings and the application for leave to appeal the convictions is therefore refused.
52. Sentence
53. In a report dated 28th February 2013, Dr McEvedy, a psychiatrist, indicated that the applicant's history and behaviour were suggestive of conduct disorder. He satisfied the criteria for a diagnosis of anti-social personality disorder. Furthermore he had previously been diagnosed as suffering from psychopathy/significant psychopathic traits. A psychiatric disposal was not considered appropriate. As to dangerousness, Dr McEvedy believed there was a propensity on the part of the applicant to commit serious violent offences in the future. In the pre-sentence report dated 7th March 2013, the probation officer assessed the applicant as posing a high risk of harm to the public. He posed an imminent danger to women, especially those with whom he was in a relationship. He was at high risk of reoffending and the author recommended an extended determinate sentence.
54. In passing sentence, the judge observed that the aggravating features of the offences were the effect that they had had on the complainant and his previous conviction for stabbing a former partner - the wounding offence to which we have already referred.
55. The judge noted that the reports made disturbing reading and the applicant clearly posed a substantial risk to women of violence, anger and aggression. He had been diagnosed, as we have indicated, as suffering from a conduct disorder and an anti-social personality disorder. In those circumstances, in the view of the judge, he clearly passed the dangerousness criteria within the relevant legislation.
56. In support of the application for leave to appeal this sentence, Miss Goodall, first, argues that the imposition of a sentence which was not in force at the date of the commission of the offence is contrary to Article 7 of the European Convention on Human Rights and is wrong in principle. She observes that the Legal Aid Sentencing and Punishment of Offenders Act 2012 ("LASPO") varied the sentencing provisions of dangerous offenders who are convicted after 3rd December 2012. Sentences of imprisonment for public protection have been abolished for those convicted after that date and a new extended sentence have been created (section 226A and 226B Criminal Justice Act 2003). It follows that at the time the offences were committed these new provisions were not in force. The new extended sentence provides for automatic release on licence after the offender has served two-thirds of the custodial term, unless that term is for 10 years and the extended sentence was imposed for one of the offences listed in part 1 of schedule 15B Parts 1 to 3 (rape is included in this list). In those circumstances, release is subject to approval by the Parole Board. Under the former regime for extended sentences the offender was released automatically after he had served a half of the custodial term.
57. R (on the application of Uttley) v Secretary of State for the Home Department [2004] UKHL 38, [2005] 1 CrAppR (S) 91, has clarified beyond doubt that Article 7 is only contravened if the sentence imposed on a defendant constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time that his offence was committed (see the opinion of Lord Phillips at paragraph 21). Here the maximum sentence for rape was life imprisonment and this penalty was manifestly a less heavy penalty. The attempt by Miss Goodall to suggest that an extended sentence with these particular provisions can amount to a more serious sentence of life imprisonment is in our view without any arguable substance. Self-evidently a life sentence will necessarily be a heavier penalty than an extended sentence, given the guarantee for an extended sentence of a point of time when the offender must be released. This contention by Miss Goodall, as we have just indicated, is simply unarguable.
58. Second, it is suggested that when imposing the extended sentence the judge ought to have taken into account the release provisions for a sentence of this kind. This submission flies in the face of the sentencing observations of the judge and in any event this was an irrelevant consideration when determining the correct sentence and including the appropriate custodial term (see R v Dunn [2012] EWCA Crim. 419). This argument in our judgment is again without any merit.
59. Finally it is submitted that bearing in mind the definitive guideline, the length of sentence imposed was manifestly excessive. Here we note there were two counts of rape, there was some not insignificant force applied to the complainant and there was an element of abduction. We note also that it was accepted before the judge in the court below that the offending fell within category 2 of the guideline (a range of six to 11 years and a starting point of eight years) albeit it was suggested that the sentence should be at the lower end of the bracket.
60. Given the serious previous convictions of this applicant and in particular his conviction in 2009 for stabbing his ex-partner in the back with a knife, for which he received a sentence of 32 months' imprisonment, the devastating effect these offences have had on the victim as set out in her impact statement and the fact that there were two offences, this custodial term was in our judgment entirely appropriate.
61. It follows that this application for leave to appeal the applicant's sentences is refused.