R v Darrell George Bingham
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,His Honour Judge Pert |
| Judgment Date | 26 April 2013 |
| Neutral Citation | [2013] EWCA Crim 823 |
| Docket Number | No: 201202432/C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 April 2013 |
[2013] EWCA Crim 823
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Hallett Dbe
Mr Justice Bean
His Honour Judge Pert QC
(Sitting as a Judge of the CACD)
No: 201202432/C1
Mr E Bindloss appeared on behalf of the Appellant
Mr J Kidd appeared on behalf of the Crown
The facts of this case are highly unusual. The appellant used two false identities to cause his girlfriend to perform sexual acts over the internet. He was charged with seven offences of causing a person to engage in sexual activity without consent, contrary to section 4(1) of the Sexual Offences Act 2003, convicted at Hull Crown Court on the 22 March 2013 and sentenced to 7 years. He appeals against his convictions with leave.
Most of the facts were not in dispute. The complainant had been in a sexual relationship with the appellant for some 5 years. Just before Christmas 2009 the appellant contacted her on Facebook using the false name of "Grant". Grant purported to be an American living in Liverpool. The complainant developed a relationship with Grant to the extent that, at his request, she sent pictures of herself posing topless. Thereafter, from about January 2010, Grant's tone changed. He threatened her that if she did not engage in various sexual acts over the Internet, he would send the compromising topless pictures to her employers and publish them on the Internet. She obeyed. Counts 1 and 2 of the indictment reflect the appellant's conduct in causing the complainant to use her fingers and her hairbrush to penetrate her vagina.
The complainant eventually confided in the appellant. Continuing the deception, he suggested that she should lure Grant to a meeting, which he would attend in her place, in order to bring the blackmail to an end. On 11th March he told the complainant that he had beaten and killed Grant and showed her images of a man restrained and with a gun against his head.
A few weeks later the complainant was contacted via Facebook by the appellant now posing as a man called "Chad". Chad purported to be Grant's friend. Chad asked if she knew the whereabouts of Grant and said he knew what Grant had done. He claimed to be in possession of the topless pictures which he too intended to send to her employers if she did not do as he demanded. Counts 3 to 7 involved the appellant, posing as Chad, causing the complainant to carry out further sexual acts involving penetration of her vagina or anus with objects.
The complainant found the demands and threats distressing and would cry and beg Chad to end his blackmail of her. Eventually, she contacted the police. They told her they thought the appellant might be responsible. She did not believe them and she continued to have a sexual relationship with him. However, the police eventually confirmed that Grant and Chad were both, in fact, the appellant and he was arrested on 13th May 2010.
In interview he admitted setting up the two fake identities and communicating with the complainant over the internet as she alleged. He explained his motivation was to assist her in learning how to "stand up for herself and say no to people". He wished to teach her a lesson. He denied that he believed she was not consenting. The prosecution maintained at trial that the most likely motive was his own sexual gratification coupled with a possible "power trip".
The appellant did not give evidence at trial but relied upon the account he had given in interview. It was part of his case he had no intention of ever carrying out the threats. Thus, there was no doubt that the appellant fulfilled the first two criteria of a section 4 (1) offence in that he intentionally caused the complainant to engage in a sexual activity. The only issues were whether the complainant consented to engaging in the sexual activity and whether the appellant reasonably believed that she consented.
The entire focus of this appeal is the judge's ruling on a prosecution application to rely upon the conclusive presumptions as to consent under section 76 of the Sexual Offences Act 2003. Section 76 provides:
"Conclusive presumptions about consent.
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed —
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that —
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complaint to consent to the relevant act by impersonating a person known personally to the complainant."
It was not contended here that the complaint was deceived as to nature of the act but it was said that she was deceived as to the purpose of the relevant acts.
Miss Kidd for the prosecution relied heavily upon a decision of this court in R v Devonald [2008] EWCA Crim 527. Devonald was a renewed application for leave to appeal against conviction on the basis the judge wrongly allowed reliance upon section 76. The facts are not dissimilar. Devonald's 16-year-old daughter had been in a relationship with the complainant, a 16-year-old boy. When the relationship broke down Devonald decided to teach the boy a lesson. He assumed the identity of a 20-year-old female, "Cassey", and corresponded with the complainant through the internet. As "Cassey", he eventually persuaded the complainant to masturbate in front of a webcam. The prosecution case was that the complainant was deceived into masturbating to please Cassey for her sexual gratification, whereas the true purpose of the act was his humiliation. At paragraph 7 Leveson LJ, giving the judgment of the court stated:
"The learned judge ruled that it was open to the jury to conclude that the complainant was deceived as to the purpose of the act of masturbation. We agree. On the facts, as we have described them, it is difficult to see how the jury could have concluded otherwise that the complainant was deceived into believing that he was indulging in sexual acts with, and for the sexual gratification of, a 20yearold girl with whom he was having an on line relationship. That is why he agreed to masturbate over the web cam. In fact, he was doing so for the father of his ex girlfriend who was anxious to teach him a lesson doubtless by later embarrassing him or exposing what he had done. It is an inevitable inference that it is for that reason that the applicant changed his plea to guilty when the judge so ruled. Miss Howell has over focussed on the phrase 'nature of the act', which undoubtedly was sexual but not on its purpose, which encompasses rather more than the specific purpose of sexual gratification by the defendant in the act of masturbation."
Here, Miss Kidd observed, the complainant was led to believe that she was performing sexual acts for one or two complete strangers, under threat that if she failed to comply her place of work would be informed and the intimate pictures distributed. Thus, the deceit was threefold: as to the identity of the recipients of the web feed, the motivation of the recipients and the consequences of the failure to submit to the demands. Miss Kidd argued it would be artificial to divorce one of those facts from another. They should be looked at in the round and if so together they amounted to a clear case of deceit as to purpose of the relevant act.
Mr Bindloss for the defence submitted that section 76 did not apply. He preferred to rely upon the decision in R v Jheeta [2007] 2 Cr App R 34 in which the Court considered a full appeal against conviction as opposed to an application for leave. The facts of Jheeta are again highly unusual. The accused and the complainant were in a sexual relationship. After a few months the complainant started to receive messages threatening to kill her. Eventually she decided that she wished to involve the police. She told the accused who offered to do so on her behalf. She believed he had done so and when she received text messages from Police Constables "Ken", "Bob" and "Thomas" thought they were genuine. They were not. The appellant adopted the identity of the three officers and sent the messages. He used her fears to extract money from her to improve her security.
The complainant began to have her doubts about her relationship with the accused. But, whenever she sought to break it off, she would receive a text message from one of the police officers, telling her that the appellant had tried to kill himself and that she should sleep with the appellant. She would be liable to a fine if she did not. She complied but solely because of the messages.
Sir Igor Judge President of the Queen's Bench Division (as he then was), giving the judgment of the court, considered the application of section 76 generally before turning to its application to the facts of that case. He said at paragraph 26:
"26. Deception as to purpose is sometimes said to be exemplified in R v Tabassum [2000] 2CAR 328, a decision described by the late Professor Sir John Smith as a 'doubtful case'. A number of women agreed to participate in a breast cancer research programme at the behest of the appellant when, as a result of what he said or did, or both, they wrongly believed that he was medically qualified or trained. They consented to a medical examination, not to sexual touching by a...
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