R v Henry
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON |
| Judgment Date | 09 December 1968 |
| Judgment citation (vLex) | [1968] EWCA Crim J1209-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2350/68 |
| Date | 09 December 1968 |
[1968] EWCA Crim J1209-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Salmon
Lord Justice Fenton Atkinson
and
Mr. Justice Milmo
No. 2350/68
No. 2690/58
MR. B. BUSH appeared as Counsel for the Appellant, Henry.
MR. J. LEE appeared as Counsel for the Appellant, Manning.
MR. J. W. WILSON appeared as Counsel for the Crown.
On 5th April of this year at the Warwick shire Assizes both these appellants were convicted on separate counts of rape and were each sentenced by the learned Judge to 7 years' imprisonment. They now appeal by leave of the single Judge against their convictions on the ground of misdirection by the learned Judge.
Before dealing with the passages complained of, it would be well to state very shortly the evidence that was before the Court. The girl in question, on 8th January of this year, had come from Ireland to Birmingham with another girl and hoped to stay with an aunt who lived at 64, St. Saviours Road. When the girls arrived at the aunt's flat they found that the aunt was out and would not be back until about 5 o'clock. It was then about 1 o'clock in the afternoon. They went to a fish and chip shop and then to a cafe and they met a number of Jamaicans including the two appellants. According to the girl's evidence, the appellant, Henry, suggested that she should go back to his house, 138, St. Saviours Road, where, according to her, he said he was living with his mother and father. There is no doubt that the girl went back with Henry and they walked along the road with the girl holding Henry's arm. Manning followed. According to the girl's evidence, when she got to the house she discovered that in addition to Manning, who had then arrived, and Henry, there were a number of other West Indian men in the house but that Henry's mother and father were not there, so here she was, along with about six young men in all. It is not insignificant to notice that this girl of was a virgin. According to her, she was very anxious to get away and frightened but she did not say anything about it at first. A gramophone was put on and she danced with one of the men who was trying to show her what was a somewhat complicated step. She says that she then went downstairs when one of these men, Henry, went down for a drink. She tried to get out of the house but was stopped and was brought back upstairs again. According to her, Henry took her into another room (the details are not very important) and then into his room and made it quite clear to her that he intended to have intercourse with her. She protested because this was not what she wanted and she said she would not have intercourse with him. He said that if she did not submit he would get ten men to hold her down whilst he had intercourse with her by force. According to her case, she was terrified and sub mitted and he had intercourse with her and ruptured her hymen. According to her case, Manning subsequently had intercourse with her against her will. She was kept in the house against her will and Henry had intercourse with her again against her will and she was then kept a prisoner in the house on Henry's instructions by one of the men living there called Bevis but he eventually let her go.
The case for Henry was quite different from the case for Manning. Henry said certainly he had intercourse with this girl but she was fully consenting and there is not a word of truth in her story that he threatened her in any way. He said that she was not; in the slightest unhappy about it and indeed she initiated the proceedings. Manning's case was quite different. Manning said that he went into Henry's room and found the girl there after Henry had had intercourse with her and saw that she was bleeding between her legs and that although he had been inclined to ask her to have intercourse with him this made him change his mind; he never penetrated the girl but he had lain on top of her and there was some sexual intimacy with her consent.
The case against Henry was very strongly corroborated. First of all, Bevis Herman, one of the men in the house, gave evidence to the effect that on Henry's instructions he kept the girl in the house against her will. He suggested to Henry that he should let the girl go and Henry said, "All in due course." Henry was saying, on the other hand, that the girl was in the house entirely voluntarily, consented to all that had been done and never tried to get away. Then again Henry said that after he had had sexual intercourse a man called George came into the room and said to the girl in effect, "Now it's my turn." The girl said she would not have intercourse with him and shrieked and slapped his face; and Henry oust walked out of the room and left them together. Thirdly, there was independent evidence that immediately after this girl had had intercourse with Henry she was in an extremely distressed state and crying and Henry denied it. There were those three separate pieces of corroboaation as far as Henry is concerned, which this Court considers to be of very great weight.
As far as Manning was concerned, there was not a spark of...
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