R v D (JA)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham |
| Judgment Date | 24 October 2008 |
| Neutral Citation | [2008] EWCA Crim 2557 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200703372 D4 |
| Date | 24 October 2008 |
[2008] EWCA Crim 2557
Lord Justice Latham
Mr Justice Mackay and
Mrs Justice Dobbs
Case No: 200703372 D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Shaw on behalf of John Arthur D
Vera Baird QC and Amjad Nawaz on behalf of the Crown
Hearing date: Monday 4th August 2008
On the 8 th June 2007 at the Crown Court at Wolverhampton the appellant was convicted of 6 counts of rape and one count of sexual assault by penetration. He appeals against conviction with leave of the full court. The issue in question is the extent of comment which is proper by a judge when summing-up a rape case to the jury.
The background to the counts in the indictment was that the appellant and the complainant had known each other for approximately five years, and had lived together for a significant proportion of that time. However, their relationship had deteriorated over time. According to the complainant, the appellant had become increasingly aggressive, particularly towards the end of 2005, when under the influence of alcohol. This may have been due in part to the fact that he was having financial problems. The complainant alleged that in the period up to the 31 st October 2005, he had forced her to have sexual intercourse, once in their bed, and once on a sofa. On an occasion thereafter between October and December 2005, when picking her up from work, he had effectively abducted her and driven her off to a secluded place where he raped her in the car.
The final incident occurred on the 13 th January 2006 when, according to the complainant, she was dragged upstairs, had her clothes forcefully removed and was then raped vaginally, orally and anally. He then, according to her, inserted a deodorant can into her vagina. The incident only stopped when the complainant's son returned home. The appellant then left the home and went off to the public house to drink. When he came back, there was an incident which resulted in the police being called. At that stage the complainant made no allegations of any sexual assault on her. The first time that she did so was on the 15 th January 2006 when Police Constable Stephenson came to take her statement about what had happened on the evening of the 13 th.
The appellant denied that he had ever had any sexual activity with the complainant without her consent. In particular, on the 13 th January 2006 he agreed that there had been vigorous sexual activity, which had been entirely with the complainant's consent. But there had, he said, been difficulties between him and the complainant; and he believed that the complainant had come to the conclusion that she wanted him to leave. The allegations that she had made were intended to achieve that objective. Counsel on his behalf had, in cross-examining the complainant, particularly stressed the fact that she had not made any complaint about a sexual assault when the police came on the evening of the 13 th January 2006. Her answer was that she felt that it was very difficult to talk to the police that evening. There were a number of police officers there and the atmosphere was not right. She had felt ashamed of what had happened. It was only when she was talking to the single police officer that she felt able to tell the whole story.
The appellant's case was heavily dependant on the jury being prepared to entertain doubt about the complainant's evidence because of her failure to make any complaint on the 13 th January. There was very little independent evidence to support either party, although it should be said that the complainant's son who had come back to the house on the 13 th had found the complainant extremely distressed. And the appellant's account that the complainant was willing to engage in the sort of sexual activity that he described on the 13th January was difficult to square with his evidence that her complaint was based on a determination to get rid of him on the 15 th January.
Be that as it may, the appeal is based fairly and squarely on a passage in the summing-up which, it is said, was seriously unfair. The passage needs to be related in full. The judge said:
“Something about rape, ladies and gentleman. Rape is unlike many other criminal offences. It's quite unlike other types of assault. If somebody came up to you in the pub and accused you of spilling drink on them, and then punched you on the nose, you would have no hesitation, I apprehend in complaining about that and going straight to the police and saying: “that chap just punched me on the nose I want him taken to court and prosecuted and punished.” No difficulty about that. Equally, if your home had been burgled and you knew who it was who had done it, you wouldn't have any difficulty about ringing the police and complaining about the fact that you'd had your plasma screen television taken and the bedroom was trashed and you want the perpetrator caught and prosecuted.
But rape is not like those offences. It's much more complicated both in its effects and how it's dealt with by victims. For example, it's a common misunderstanding about forced sex within a relationship that in some way it doesn't really matter. I'm speaking now of course about the rape of a woman. I appreciate, as you know, that men can be raped, and there are many other types of sexual assault, but in relation to a woman who is raped, a woman may consent to sexual intercourse because she loves and trust her partner. It's consent to sexual engagement within a loving and tender atmosphere, and it can greatly enrich a relationship, and it's a joy for life for many people. It means a great deal to a woman that she consents to that sort of relationship. Therefore, when a man forces himself on a woman it's a massive breach of trust. It becomes for the woman brutal and degrading and humiliating and hugely upsetting, and very often men will misunderstand this, because they will say: Well I've had sex with this woman dozens and dozens of times, so why is it so bad on this occasion? It's the breach of trust. It's the invasion. It's the treatment of the woman in this manner of disregard that affects them so greatly.
Very often, women who are raped within relationships feel ashamed of what's...
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