Case No: 200105888/Z2
Neutral Citation No: [2002] EWCA Crim 1319
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM His Honour Judge Ensor
Manchester Crown Court.
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 31st May 2002
Before :

LORD JUSTICE MANTELL
MR JUSTICE FIELD
and 
HIS HONOUR JUDGE  PAGET QC

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Between :
	Regina		
	
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SK		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr J Hayhoe(instructed by Cuttles & Co.) for the Appellant
Mr S Neale for the Crown

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mantell: 
1.	In this appeal nothing may be reported which could lead to the identification of either of the two female complainants whom we shall refer to as simply GW and LO.  We shall refer to the appellant similarly by his initials, SK.  
2.	During the week commencing Monday 24th September 2001 SK stood trial at Manchester Crown Court before His Honour Judge Ensor and a jury on an indictment containing eight counts.  Counts 1 to 4 reflected allegations of indecent assault rape and incest by SK’s sister, GW, and counts 5 to 8 allegations of indecent assault and rape by his niece, LO.  
3.	The learned judge summed up during Thursday afternoon and over into Friday morning.  The jury retired at 10:11 am and finally returned at 12:57 pm with verdicts of not guilty on all counts save for count 7 which alleged rape against LO on which they returned a guilty verdict on the alternative charge of indecent assault.  The learned judge imposed an extended sentence of ten years under section 85 of the Powers of Criminal Courts Act 2000 of which 4 years was the custodial term.  
4.	The grounds or proposed grounds of appeal against conviction are threefold.  First it is said that the learned judge ought to have acceded to an application for severance of the counts involving GW from those in which the complainant was LO.  As to that the learned single judge refused leave and originally counsel for SK indicated that he proposed renewing his application to this court in respect of this ground.  In the event he did not, no doubt influenced by the single judge’s comment that it was difficult to see how non-severance could result in prejudice since SK had been acquitted on all counts involving allegations by GW.  Secondly, it is contended that the conviction on count 7, albeit for a lesser offence, is inconsistent with the verdicts of not guilty on other counts were LO had been the complainant.  On this ground the learned single judge granted leave.  Thirdly it is said that the learned trial judge was in error in disallowing cross-examination of LO with regard to what the medical notes suggested she may have said on separate occasions to a psychiatrist and her general practitioner.  That matter was referred to this court and has been treated as though it were a ground of appeal.  
The Facts.
5.	We do not deal at all with the allegations made by GW.  As we have said LO is the appellant’s niece.  She was born on 19th October 1983.  It follows that she reached her 16th birthday on 19th October 1999.  Sometime prior to 22nd June 2000 LO went to the police to complain that she had been raped and indecently assaulted by the appellant when visiting his home either socially or in order to baby-sit.  She was interviewed on 22nd June 2000.  In the course of that interview, which was videoed and became her evidence at trial, she described how following a New Year’s party on 1st January 1999 she had slept over at the appellant’s house and the appellant had indecently assaulted her whilst she was in bed.  He touched her breasts and her vagina.  She said she would scream and he left off.  That was count 5 in the indictment and resulted in an acquittal.  She next spoke of an incident in February 1999 when she was staying with the appellant and his wife during one of the school holidays.  She said that he had had sexual intercourse with her in the course of play fighting and when she was pinned to the floor.  She claimed not to have consented.  That was count 6 in the indictment and again resulted in an acquittal.  She then spoke of an occasion in July or August 1999 when she was baby-sitting and after some kissing and fondling she had submitted to sexual intercourse although only, as she put it, because she felt scared and pressurised.  That was count 7 in the indictment charged as rape and resulted in the conviction for indecent assault.  Finally she complained that eight weeks before her police interview, that would be in about April 2000, the appellant had again fondled her breasts and kissed her against her will.  That became count 8 and again resulted in another acquittal.  It is to be noted that on her account this happened when she was sixteen years of age.  
6.	The appellant was arrested and interviewed.  The interview to which we particularly refer took place on 20th July 2000.  He was asked if he had ever had sex with LO.  He said “Twice. After her sixteenth birthday.  One occasion was my bed and the second occasion was her bed.”  He then went on to describe how he and LO had struck up a relationship with LO telephoning him every night.  He mentioned LO’s mother saying “I think L has got a crush on you”.  He had found notes in her bedroom saying “I love SK”.  He described how LO had been baby-sitting for his wife and himself for over a year and how they had become very close friends.  They would sit and lie on the sofa and watch TV.  And this:
“It developed to a kiss.  Over a matter of weeks it went to intercourse.  No not a matter or weeks, I’d say a matter or months because I said to LO, “I won’t do anything until you’re sixteen” I says “I am not going to get myself into trouble I’m not silly.”
Then he went onto to describe how he had brought the relationship to an end in about April 2000 rather suggesting that that was the reason for LO’s having gone to the police.  
7.	At trial the appellant denied that any kind of sexual impropriety had ever taken place between himself and LO.  He claimed to have made his admissions to the police in order to get bail.  He also stated that he had told his wife that he had made the admissions. In giving evidence the wife denied that he had ever told her anything of the sort.
Grounds of Appeal.
8.	Against that background we turn to the first effective ground of appeal namely that the conviction for indecent assault on count 7 cannot live alongside the acquittals on all other counts based upon the evidence of LO.  Put shortly it is said that if LO was not to be considered a reliable witness with regard to the other alleged offences how can it be safe to base a conviction on what she had said with regard to count 7.  The answer to that can be put equally shortly.  The conviction on count 7 did not depend or need to depend solely on the evidence of LO.  Whilst there was material before the Jury that LO may have made the running and was therefore consenting to anything that may have taken place such consent would not have assisted the appellant with regard to any indecent assault alleged to have taken place before LO’s sixteenth birthday.  It would, however, provide a defence to rape.  The appellant admitted sexual intercourse.  It is true that in interview he claimed that it had only taken place after LO’s birthday in October. But he can be taken to have been saying that he and LO became very close friends “a matter of months” before LO’s sixteenth birthday.  His first account suggested that sexual intercourse took place within a matter or weeks of them becoming very close friends.  There was, of course, a hurried retraction “no not a matter or weeks, I’d say a matter of months because I said to LO “I won’t do anything until you are sixteen.””  The jury were entitled to view that passage in the interview with a high degree of cynicism.  It could be taken on its own as an admission of sexual intercourse and, therefore, indecent assault if it happened before LO reached her 16th birthday or it could be taken in conjunction with the evidence which they had received from LO herself.  That, it seems to us, is a sufficient explanation for why it was the jury arrived at the verdicts they did with regard to which we can detect no logical inconsistency.  And as this court has previously stated “it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground:” (see R v. Alexander AB 15th May 1997).  It follows that it must fail in this instance also.  
9.	The second ground of appeal concerns a refusal by the learned judge to allow cross-examination of LO with regard to an alleged inconsistency between what she had said in evidence about her previous sexual experience and what she had told her doctors.  It arose in this way.  In the video interview she had said that her first experience of sexual intercourse was with the appellant.  In LO’s medical notes for 18th September 2000 at one point the following appears “says to mum I wasn’t a virgin” and a little later “mum knows its hard to imagine she’d had sex before.”  There was also a reference in her GP’s notes for 17th March 2000 to her having a boyfriend and having become sexually active and “would like OCP”.  The application was refused by the learned judge on the basis that such cross-examination would offend section 41(1) of the Youth Justice Criminal Evidence Act 1999 in that it would involve seeking to ask questions about LO’s sexual behaviour.  As a supplementary reason for refusing leave the learned judge said:
“Well it is not clear anyway.  It is not clear on the face of this document, and you cannot call the doctor to say what, it involved an investigation into what she recalls she said to the doctor and what the doctor recalls, and there is no date put to it and it could well be, as Mr Neale believes it to be, post the first complaint.”
10.	As to the first reason Mr Hayhoe argues that the purpose of his cross-examination would not be to show that LO was sexually promiscuous and to attack her credibility on that basis but rather to show that she had told a lie in giving evidence.  He submits that sub-section 4 of section 41 is only designed to prohibit questions about sexual behaviour where it is the sexual behaviour itself which is relied upon for impugning the credibility of the complainant as a witness.  In that submission he finds support from the judgment of this court in R v. B.D. and R v. M.H. 2002 1CAR 254.  In the course of giving the judgment of the court Keene LJ said this:
“It seems to this court that normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ones “about” any sexual behaviour of the complainant.  They relate not to her sexual behaviour but to her statements in the past or to her failure to complain.”
In arriving at that conclusion the court was adopting a distinction drawn by this court in R v. Cox (M) (1987) 84 CAR 132.  When dealing with earlier legislation Lord Lane CJ giving the judgment of the court said at p.136:
“The result of that and the effect of the proposed questions and evidence is to indicate that it was not so much the sexual intercourse with Steven in the earlier event which was of importance, but what she said about it afterwards, and it was that which was the subject of the application.”
11.	It seems to us that there is some force in Mr Hayhoe’s submission that the learned judge misinterpreted the provisions of section 41 although that criticism has improved with the benefit of hindsight.  But it seems to us that the learned judge’s supplementary reason which depended upon the exercise of his discretion presents Mr Hayhoe with a more difficult hurdle.  The medical notes do not disclose the period or date to which LO may have been referring and it is a perfectly possible interpretation that she was, in any event, referring to intercourse with the appellant.  We suppose that the matter might have been investigated on the voir dire but otherwise we would accept the respondent’s contention that what was proposed amounted to no more than a fishing expedition.  As the learned judge pointed out it was likely to prove an unprofitable line of enquiry and could only serve to distract the jury from the main issues in the case.  Moreover, as we have already noticed, the jury did not feel able to rely upon the uncorroborated evidence of LO in any event and, even had we considered the judge to have been wrong in exercising discretion as he did, we would have been unable to take the further step of finding that the error had led to an unsafe verdict.  
12.	Accordingly we reject both grounds of appeal against conviction and move to the question of sentence.
Sentence.
13.	It follows from the jury’s verdict that they were not satisfied  that sexual intercourse had taken place without LO’s consent.  She was close to her 16th birthday.  Of course the matter remained a serious one for the reasons given by the learned judge namely that the appellant was very much her senior and in a position of trust. But as the maximum available sentence for unlawful sexual intercourse remains at two years it is impossible to justify any longer term in the instant case. (See R v. Hinton (1985) 16 CAR(S) 523 and R v. Brough (1997) 2 CAR (S) 202.)  More than that it would seem that there was little or no basis for the imposition of an extended sentence and certainly not for an extended sentence of ten years duration.  So far as we can see and have been told there was no material before the learned judge to support his opinion “that the normal period of licence would not be sufficient to prevent the commission of further offences or secure your rehabilitation.”.  Nor does it appear that Counsel was given any opportunity to address the judge on the appropriateness or otherwise of such a course.  (See R v. Nelson 24 October 2001).
14.	Accordingly we allow the appeal to the extent that we quash the extended sentence of ten years and substitute a sentence of two years imprisonment.