RAPE

In the appellant’s trial for sexual offences, the judge had been unduly hostile towards his counsel when she asked a leading question, but his conduct, seen in the context of the proceedings overall, did not render the trial unfair.

[2017] EWCA Crim 895

A minimum term of 10 years’ imprisonment, equating to a determinate sentence of 20 years, imposed in respect of a life sentence following an offender’s conviction for historical offences of rape and indecent assault, was reduced to six years to reflect the principle of totality of sentence. The offender had previously been sentenced to 12 years’ imprisonment for similar sexual offences committed close in time to the index offences, which effectively equated to a total sentence before reduction of 32 years.

[2017] NICA 36

The Court of Appeal refused to reopen an application for leave to appeal against sentence where the offender had been denied the opportunity of an oral hearing due to an administrative error. The court had the discretion to reopen a case in those circumstances, but the offender’s long delay in seeking to reopen her case meant that it would be inappropriate to exercise that discretion.

[2017] EWCA Crim 819

A 17-year extended sentence imposed on an offender who had grossly abused his position of trust as deputy principal of a children’s home in subjecting young boys in his care to repeated sexual abuse was unduly lenient. Given the scale and frequency of the offending, which was akin to a campaign of rape, an extended sentence of 22 years was appropriate.

[2017] EWCA Crim 878

The court interpreted Home office guidance entitled “Crime Recording General Rules” on determining whether and when a reported incident should be recorded as a crime. It determined that in the circumstances of the case, a reasonable decision-maker taking account of all the relevant factors would have concluded, beyond reasonable doubt, that an individual had not committed a crime.

[2017] EWHC 646 (Admin)

In determining that it was not in the interests of justice for an offender’s case to be referred to the High Court of Justiciary on the basis of Cadder (Peter) v HM Advocate [2010] UKSC 43, the Scottish Criminal Cases Review Commission had not erred in taking into account the fact that the offender had not disputed the truth of an admission made in his police interview, had not challenged the fairness of the interview or its use at trial, and had made use of the interview at trial.

[2017] UKSC 20

A child conceived with a genetic disorder as a result of the incestuous rape of his mother was not eligible to claim criminal injuries compensation. He could not be the victim of a crime committed before he had been conceived, and it was not possible to assess compensation on the basis that he would otherwise have been born without disability.

[2017] EWCA Civ 139

Where a court had no idea why a serious offence had been committed and could not be confident that another serious offence would not be committed, it should make a finding of dangerousness.

The Court of Appeal, including the Lord Chief Justice, expressed the hope that in future cases where counts were wrongly joined the highly technical law in relation to finding the indictment a nullity should no longer prevail. The Criminal Procedure Rule Committee should consider expressly providing what was to happen in that situation.

[2017] EWCA Crim 281

Where a young and vulnerable victim had lied in her ABE interviews, it was not necessary for every aspect of the defence case to be put to her. A list of inconsistent statements could be produced and agreed with the prosecution, and adduced in evidence by way of admission.

[2017] EWCA Crim 106

A total sentence of 15 years’ imprisonment together with an extended licence period of one year was appropriate for historic sex offences committed by a 71-year-old man against his three step-grandchildren.

[2016] EWCA Crim 1777

Sentences of 11 years and three months in detention, following the first offender’s guilty pleas to two charges of rape, and 14 years in detention, following the second offender’s guilty pleas to three charges of rape, were not manifestly excessive where the teenage offenders had carried out serious and violent attacks on two vulnerable victims on two separate occasions.

[2016] EWCA Crim 2117

A total sentence of 18 years’ imprisonment, comprising 15 years for rape and three years for the robbery, was reduced to 16 years as the judge had not taken sufficient account of the principle of totality when sentencing the offender for the robbery. The offender had taken the victim at knife point and raped her in an alleyway before demanding money from her; it was not easy to separate the additional harm to the victim.

Concurrent sentences of five-years-and-four-months’ imprisonment for an oral and a vaginal rape were unduly lenient. The starting point should have been 11 years to reflect the fact that two offences were committed at a remote location, involving a prolonged struggle during which the offender raped the victim without a condom and ejaculated.

[2016] EWCA Crim 1856

The threshold in the Youth Justice and Criminal Evidence Act 1999 s.41(3)(c), which permitted the victim of a sexual offence to be cross-examined about her sexual behaviour if there was a similarity between her previous alleged conduct and the act complained of, was high. The provision could not be invoked to argue that a complainant who had engaged in casual sex in the past was likely to have done so on this occasion. There had to be a sufficient chronological nexus between the past and current events, otherwise any cross-examination on the issue would not be truly probative.

[2016] EWCA Crim 1633
[2016] EWCA Crim 1051

A conviction for offences of rape and indecent assault was not unsafe where, notwithstanding the judge’s omission to carry out the procedure in the Police Law 2010 s.149(2), which exactly reproduced the provisions of the Criminal Justice and Public Order Act 1994 s.35, the appellant had been advised not only that he could give evidence if he wished but also that he risked an adverse inference if he did not and was adjudged to have had no good reason for the omission.

[2016] UKPC 18

The concept of abduction in harm category 2 of the sentencing guidelines for rape was not a matter of distance. A sentence of eight years’ imprisonment following a guilty plea to a historic offence of rape was justified where the offender, who had previous convictions for indecent exposure with intent to assault a female, had raped the victim twice in an incident which had caused her lifelong harm.

A 30-year extended sentence comprising a 22-year custodial element and an eight-year licence period was appropriate in the case of a 61-year-old man who had pleaded guilty to 33 child sexual offences committed against three young girls over a 40-year period.

[2016] EWCA Crim 815

The police had been entitled not to refer an individual’s historic rape allegations to the CPS where the relevant evidential test within the Director’s Guidance on Charging 2013 had not been met.

Whilst the judge at the appellant’s trial for rape had not conducted the correct judicial exercise in refusing to allow the appellant to adduce evidence of the victim’s previous allegations of rape and to cross-examine her in relation to them, it was not possible to argue that there had been a clear evidential basis on which to mount a cross-examination and the judge had been right to refuse the application.

An Attorney General’s Reference was allowed where an offender had been convicted of rape, assault, false imprisonment and criminal damage committed over a two-day period. It had been a brutal, prolonged, terrifying and degrading attack and the total sentence of four years’ imprisonment was replaced by one of eight years.

An appeal against a rape conviction was allowed in light of fresh evidence concerning the complainant’s sexual relationships with third parties. Their accounts of her sexual behaviour were arguably sufficiently similar to that alleged by the appellant as to come within the terms of the Youth Justice and Criminal Evidence Act 1999 s.41(3)(c)(i). The situation was an example of a rare case where it was appropriate to allow forensic examination of a complainant’s sexual history with third parties.

[2016] EWCA Crim 452

Concurrent sentences of seven years’ imprisonment for five counts of sexual assault of a child under 13 and two counts of rape of the same child, committed by a young offender over a seven-year period, were not unduly lenient where he had stopped his offending as soon as the victim asked him to, and admitted his guilt as soon as the offending was disclosed. Such candour required recognition in the sentencing exercise. Consecutive sentencing would have been better so as to differentiate between the sexual assaults and the rapes.

[2016] EWCA Crim 1386

The custodial period of an extended sentence imposed on a young offender following his conviction for rape should be reduced from seven-and-a-half to five years to take account of, among other things, his age and the possibility that he might be suffering from a personality disorder.

[2016] EWCA Crim 262

The admission of evidence of sexual violence used against a victim by an offender, but for which he had not been charged, did not render his convictions for rape unsafe where the offender had launched a strong attack on the victim’s character and where the bad character evidence was important in giving the jury the full picture of the violent relationship between the pair.

A judge had been right to exclude hearsay evidence under the Criminal Justice Act 2003 s.126, as the evidence the defendant sought to admit concerning another man’s confession and subsequent retraction to rapes that the defendant denied committing was already before the jury. The DNA evidence implicating the defendant was overwhelming and there was no doubt that his convictions were safe.

[2016] EWCA Crim 16

An extended sentence imposed for rape by way of vaginal penetration, rape by way of oral penetration, assault by penetration and false imprisonment, was inappropriate where the material relied on to conclude that the offender was dangerous within the meaning of the Criminal Justice Act 2003 Pt 12 Ch 5 was too thin and the reasoning too speculative. A determinate 11-year sentence was imposed.

[2016] EWCA Crim 331

A determinate custodial sentence of seven years, comprising three-and-a-half years in custody and the same period on licence, was appropriate in the case of the appellant, who had been convicted of the rape and sexual assault of a 52-year-old woman.

[2016] NICA 3

Convictions for rape, assault by penetration and kidnap were not arguably unsafe where, despite inconsistencies in hearsay evidence and missing CCTV, the judge had given a measured assessment of the strengths and weaknesses of the Crown’s case and had directed the court’s mind to disadvantages endured by the appellant. A sentence of 13 years’ imprisonment was reduced to nine years where the judge had wrongly relied on an abuse of trust.

[2015] EWCA Crim 2376

A sentence with a minimum term of nine years and three months’ imprisonment imposed for nine counts of rape was quashed as the minimum term had been wrongly increased by six months to reflect a breach of a suspended sentence imposed for breach of a sexual offences prevention order. The offence for which the suspended sentence had been received was not a specified offence and therefore should not have been added to the minimum term.

[2015] EWCA Crim 1917

The court determined that the failure to provide exceptions to the law in Northern Ireland prohibiting abortion in respect of fatal foetal abnormality at any time, and pregnancies due to sexual crime up to the date when a foetus became capable of an existence independent of its mother, was contrary to the ECHR art.8.

[2015] NIQB 96

A conviction for sexual offences against a child was safe, as medical evidence adduced as fresh had not permitted confident review of a previous diagnosis so as to describe it as ill-founded; taken at its highest it neither supported nor refuted the allegations against the offender. The defence was still that any abuse was perpetrated by another and the jury had decided on the non-medical evidence.

[2015] EWCA Crim 1792

After receiving a note indicating that a juror in a rape trial might not make a decision but just go with the majority, the judge should have told the jury that each member had to consider the evidence and reach a verdict according to his or her view of the material. The subsequent conviction by a majority was not, however, unsafe as the foreman had made it unequivocally clear that 10 jurors had agreed and two had disagreed.

[2015] EWCA Crim 1916

The court considered the proper approach to the Victims’ Right to Review Guidance of CPS decisions and to claims made in respect of decisions to charge where the original decision was not to charge.

[2015] EWHC 2868 (Admin)

An extended sentence comprising a 12-year custodial term and a five-year extension period was appropriate in the case of an offender who had vaginally and anally raped a friend, handcuffing her and pressing a pillow over her face. A discretionary life sentence was not justified.

[2015] EWCA Crim 1905

When sentencing an offender who had been convicted of the rape and assault by penetration of a friend, the judge had erred in regarding the appellant’s offences as demonstrating an abuse of trust such as to place it within Category 3A of the sentencing guidelines. The offences should have been placed in Category 3B. For the offence of rape, the appropriate sentence was an extended sentence of nine years, comprising a custodial term of six years and an extension period of three years; and for the assault by penetration, a sentence of two years’ imprisonment, to run concurrently.

[2015] EWCA Crim 2501

The fact that an intermediary had provided physical and emotional support to a vulnerable and distressed complainant during a rape trial did not result in a serious risk of unfairness to the defendant. Both counsel and the judge had warned the jury to approach the complainant’s evidence untrammelled by sympathy.

[2015] EWCA Crim 1582

An appellant’s conviction for rape was safe where there was substantial evidence before the jury that the victim was intoxicated and incapable of consenting to sexual intercourse with him. There was no presumption that the conviction was unsafe because the judge did not give a good character direction.

[2015] EWCA Crim 1855

When dismissing an appeal against conviction for sexual activity involving children, including rape and trafficking within the UK for sexual exploitation, the court considered the issue of consent. Where a vulnerable or immature individual had allegedly been subjected to grooming for sexual purposes, the question of whether real or proper consent had been given would usually be for the jury to decide, unless the evidence clearly indicated that proper consent had been given.

[2015] EWCA Crim 1279

Sentences of nine years’ imprisonment were neither unduly lenient nor manifestly excessive for two offenders who had raped an intoxicated young woman in an alleyway outside a nightclub. It had been appropriate not to impose a consecutive sentence for digital anal penetration by one of the offenders.

[2015] EWCA Crim 1223

Undisclosed material from the police and social services which included information regarding previous sexual allegations made by a rape victim that had not been pursued because of concerns expressed by the relevant professionals at the time regarding her credibility, did not significantly undermine the victim’s credibility so as to affect the safety of the conviction.

[2015] EWCA Crim 854

Fresh evidence which cast doubt on the credibility of a complainant’s evidence had sufficient impact on the safety of a conviction for rape for it to be quashed. However, the evidence did not have the same impact on the complainant’s credibility in respect of allegations of sexual assault, which were upheld.

[2015] EWCA Crim 741

A judge had erred in focusing on the risk an offender posed to the public, rather than the seriousness of the offences, when imposing what was in effect a whole life order for multiple counts of rape and further counts of kidnapping and causing grievous bodily harm with intent. The very high test of exceptionality for whole life orders had not been fulfilled but, given the aggravating features of the case, a notional determinate sentence beyond the sentencing guideline range was justified.

[2015] EWCA Crim 883

Two convictions for rape were safe where a judge had admitted evidence of an offender’s single previous conviction for sexual assault. The offences all demonstrated sufficiently unusual behaviour, capable of demonstrating the offender’s propensity to commit offences of the kind charged, to permit admission under the bad character provisions of the Criminal Justice Act 2003.

Although a judge had given a Watson direction without hearing submissions and that deviated from the approved wording, the direction did not render a comviction for rape unsafe. Provided the direction was given in a way that did not put pressure on jurors, whether and when to give a direction was a matter for the judge’s discretion.

Consent to sex could take many forms, ranging from willing enthusiasm to reluctant acquiescence. It was possible for somebody who lacked neither the capacity nor the freedom to make a choice nevertheless to submit to a demand that she felt unable to resist. That was an example of reluctant consent.

[2015] EWCA Crim 559

A judge had not erred in permitting the prosecution to adduce evidence of an offender’s bad character, relating to conduct forming the basis of a charge for sexual assault, of which he was acquitted, after it had closed its case as the defence had not yet opened its case. The judge had also directed the jury fairly on the similarities and dissimilarities between the previous incident and the index offence.

[2015] NICA 11

A judge had erred in refusing to allow cross-examination of a rape complainant regarding her previous convictions, as the evidence was of substantial probative value in respect of the question of whether her allegation was worthy of belief. However, the evidence would have had no significant impact on the jury’s consideration of the specific issues of creditworthiness in the circumstances of the case and the conviction was safe.

[2015] EWCA Crim 383

An extended sentence of 39 years, with a custodial term of 33 years, imposed in respect of a very large number of serious sexual offences against young girls was manifestly excessive; the appropriate custodial term was 30 years. The judge had also erred in adding up the consecutive sentences to reach the overall custodial term before imposing an extension period on the total: it was the overall extended determinate sentences that had to be consecutive, not just the custodial terms.

[2015] EWCA Crim 563