Neutral Citation Number: [2014] EWCA Crim 2570
Case No. 2014/02966/B2

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

The Law Courts
50 West Bar
Sheffield
S3 8PH

Date: Tuesday  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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STEVEN  ALLAN  PIPE
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Mr M Greenhalgh appeared on behalf of the Appellant

Mr R J Doswell appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:   I will ask Mr Justice Coulson to give the judgment of the court.

MR JUSTICE COULSON:
Introduction
1.  The appellant is now aged 31.  On 23rd 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
2.  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
3.  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. 

4.  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.

5.  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.

6.  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.

7.  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.  

8.  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.

9.  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.

10.  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?"

11.  Z agreed that the complainant had mental health difficulties and lacked confidence.  She was vulnerable and easily upset. 

12.  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.  

13.  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.

14.  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.  

15.  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.

16.  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
17.  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.  

18.  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
19.  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
20.  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.

21.  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
22.  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.

23.  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.  

24.  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.  

25.  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.  
26.  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.

27.  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.  

28.  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.

29.  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.

30.  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.  

31.  In those circumstances the appeal against conviction is dismissed.

The appeal against sentence
32.  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.

33.  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.

34.  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.

35.  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.

36.  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.

37.  As to the mitigating factors identified in the guideline, the principal mitigating factor in play was the absence of previous convictions.

38.  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.

39.  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.

40.  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.

41.  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.

42.  For all those reasons, and despite Mr Greenhalgh's attractive submissions, this appeal against sentence is also dismissed.

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