R v Ensor
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 14 March 1989 |
| Judgment citation (vLex) | [1989] EWCA Crim J0314-3 |
| Docket Number | No. 6533/G3/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 1989 |
[1989] EWCA Crim J0314-3
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Kennedy
and
Mr. Justice Hutchison
No. 6533/G3/87
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P. JEFFRYS, Q.C. and MR. M. WOLKIND appeared on behalf of the Appellant.
MR. B. ESCOTT-COX, Q.C. and MR. T. RAGGATT apepared on behalf of the Crown.
On 17th December 1986 in the Crown Court at Birmingham before His Honour Judge Ross and a jury, this appellant was convicted on two counts of rape, as to the second by a majority of eleven to one, and was sentenced on the first count to five years' imprisonment and on the second to four years' imprisonment to run consecutively, making a total of nine years' imprisonment.
He now appeals against conviction by leave of the single Judge.
The facts giving rise to the first count were these. The complainant, Miss P., aged 31, visited in the early hours of 12th February 1986 a club in Hockley, Birmingham. She had since 2.30 p.m. on the previous day spent most of the time drinking in the company of her girl friend and two men. After a meal at about 10.30 p.m. they all went to the club. The other three went home at various times after midnight, leaving Miss P. behind.
The appellant was employed as a doorman or "bouncer" at the club. She danced with him and he, eventually, so she said, offered to drive her home, an offer which she accepted, only to find that she was being taken to his home and not hers. She accepted his invitation to go in for coffee. The time by now was about 4.30 a.m.
When she in due course sought to telephone for a taxi, he stopped her doing so, pushed her into the bedroom and ordered her to take off her clothes. He pushed her on to the bed and, according to her, raped her. She went to the bathroom and when she came out he took her back to the bedroom and then produced what she thought was a whip. She was terrified that she was going to be whipped, but instead of that he wound the lash round his private parts and had sexual intercourse with her again, this time from behind. She was by now crying out for him to stop; he for his part was crying out at the self-inflicted pain he was suffering by reason of the ligature and it was in those circumstances that he raped her for the third time.
By this time it was about 7.30 a.m. and she was able to telephone for a taxi, taking the address from a letter which had shortly before been delivered by the postman.
Very shortly after she got home she telephoned to her boy friend. He went straight round to see her and to him she appeared very distressed, complaining that she had been raped. She was terrified and too scared, it was said, to go to the police in case the appellant came after her. She told the boy friend about the whip. She also rang her solicitor who advised her to go to the police. It was not however until the 25th February that she made a complaint to the police. That was after she had heard that the appellant had been arrested in respect of the second alleged rape. On 28th February she made a statement to the police, inter alia, describing the whip.
The appellant's account of this incident was that Miss P. had been a willing participant in everything that had happened; that she had been both willing and co-operative first in the performance of "oral sex", and later when sexual intercourse proper had taken place; that it was true that he had put a ligature round his private parts in order, it seems, to engorge and enlarge his penis for his own satisfaction. The ligature was formed however not by any whip, he said, but by the cord from his track suit. Miss P. could not have seen any whip, she must have imagined it.
On 3rd March police went to his house with a search warrant and there they found two whips, one of which was of the sort described by the complainant, and also a number of potential accessories for paranormal sexual activities.
The importance of the whip will become apparent when we turn to the amended notice of appeal.
The complainant in the second count was Miss H., aged 22. She was an employee at the same club as the appellant. In the early hours of 23rd February she accepted a lift home in the appellant's car. There had earlier been some horse-play in a Jacuzzi upstairs in the club, in the course of which she had been soaked. As a result she was clad only in a blanket for the drive home.
Once there, he accepted her invitation to a cup of coffee. As she was dressing in the bedroom, she said, he came in naked and took hold of her. She struggled. He pushed her down on her back, punched and slappped her face, probed her private parts with his hands and raped her. She denied giving him encouragement. She admitted that she had given him her mother's telephone number in order, she said, to prevent any more violence.
She complained to a friend later that morning. The police were called and Miss H. was examined by a doctor who observed a number of scratches, abrasions and bruises upon her and in particular a swelling below the left eye. Samples were taken to be examined for semen, blood and pubic hairs. All the tests were negative. There was in short no scientific support for the allegation of rape.
The appellant's account of this event was that he was too tired to achieve proper sexual intercourse. He performed "oral sex" upon Miss H. with her consent. He could provide no acceptable explanation for her injuries.
We have gone into some detail as to the facts of the two counts in order to cast light on the submisisons made to us by Mr. Jeffreys on the question of corroboration.
Before we come to that aspect, we turn to examine the facts which gave rise to the original notice of appeal. This was the subject of Mr. Jeffreys' first submission to us which was as follows:
Although the two counis of rape were properly joined in the same indictment, counsel who appeared for the appellant at the trial should have applied for the two counts to be severed. It is clear form the information available to us that the appellant himself wanted such an application to be made, and made his wishes known to his lawyers. Mr. Jeffreys submitted that if the application had been made, it ought to have succeeded, because there was no such similarity between the alleged offences as to enable the prosecution to rely upon the facts of one to prove guilt in respect of the other. Indeed that was conceded by Mr. Escott-Cox, who has appeared for the prosecution throughout.
At least for the purposes of argument we are prepared to accept Mr. Jeffreys' further submission that if the indictment had been severed the appellant's chances of acquittal would have been improved, but in fairness to both counsel who appeared for the defence at the trial, it must be said that they did not overlook the possibility of applying for the indictment to be severed. On the contrary they discussed that possibility, and concluded that if the application were to be made, it would fail.
According to leading counsel, he also came to the conclusion that there were certain advantages to be gained by the defence if the two counts of rape were heard together, the principal advantage being that it could be openly said to the jury of the first complainant, with whom the appellant admitted having had sexual intercourse, that she made no complaint to the polcie until ten days later and only then when she knew that the appellant was in custody as a result of the second complainant alleging that she had been raped. So the defence could rely upon the first complainant's delay to allege that she consented, an allegation strengthened by the suggestion that she was only prepared to pursue a false allegation of rape when she heard of the fresh rape charge. As the second complainant's case against the appellant was apparently less strong than that of her predecessor, if her case failed, so the appellant might well be acquitted on both counts.
In developing his first submission Mr. Jeffreys submitted that although it is not the obligation of counsel to discuss with his client every step which he proposes to take during the course of a criminal trial, it was here the duty of leading counsel to inform the appellant of his decision not to apply for the indictment to be severed, and of his reasons for that decision, and that his failure to take that step, coupled with his failure to make the application, a failure of which the appellant was never aware until the end of the trial, constitutes a material irregularity in the conduct of the trial the consequences of which were such that this Court ought not to intervene.
Mr. Escott-Cox has submitted that, although on the evidence the appellant right up to the end of the pre-trial consultation with his leading counsel clearly wanted counsel to apply to sever the indictment, nevertheless it must be inferred that the appelllant tacitly accepted and acceded to counsel's decision not to make that application. He says, with force, and we accept, that it is inconceivable that this appellant, who was no stranger to court procedure, should have sat in the dock for days within a few feet of his legal representatives without ever inquiring whether the application had been made and in the mistaken belief that it had been made and rejected.
But that does not deprive Mr. Jeffreys of his basic submission, which is that leading counsel, contrary to what he must have known to be the wishes of his client, declined to make an application in circumstances in which this Court would normally expect a successful applciation to have been made, and that in consequence a miscarriage...
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