R v Jheeta (Harvinder Singh)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 11 July 2007 |
| Neutral Citation | [2007] EWCA Crim 1699 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200604977C1 |
| Date | 11 July 2007 |
[2007] EWCA Crim 1699
The President of the Queen's Bench Division
Mr Justice Simon and
His Honour Judge Goldsack QC
Case No: 200604977C1
200601567C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARWICK
HIS HONOUR JUDGE COLE
Royal Courts of Justice
Strand, London, WC2A 2LL
Elizabeth Marsh QC for the Appellant
Mark Wall QC for the Respondent
Hearing dates: 20 TH June 2007
Judgement
President of the Queen's Bench Division
This appeal against conviction by Harvinder Singh Jheeta arises in somewhat unusual circumstances and raises interesting questions about “consent” within the Sexual Offences Act 2003 (the 2003 Act)
The indictment contained seven counts. Each arose from the relationship between the appellant and a woman we shall describe as D. Counts one and two alleged that between September 2002 and August 2003, and again between September 2003 and 30 April 2004 the appellant procured D to have sexual intercourse with him by false pretences, contrary to section 3(1) of the Sexual Offences Act 1956. After that date the 2003 Act came into force. Counts three to six alleged rape, contrary to section 1(1) of the 2003 Act. The dates in these counts are immaterial for present purposes, but the allegations of rape arose in identical circumstances to the allegations of procuring sexual intercourse by false pretences in counts one and two under the 1956 Act. Count seven alleged blackmail, and related to an unwarranted demand by the appellant for payment for security services to him by D.
On 5 July 2006 in the Crown Court at Warwick before Gibbs J, following a discussion between counsel on both sides about the implications of section 76 of the 2003 Act, the appellant pleaded guilty to all counts. No written basis of plea was tendered. On 2 August, two days after a hearing before Judge Faber, a signed basis of plea was provided. On 21 September before Judge Cole the appellant was sentenced to eight years imprisonment concurrent on each count. In addition, he was made subject to a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000 and to appropriate notification obligations.
An application for leave to appeal against sentence was granted by the single judge. The case was listed before the Full Court on 29 November. The Court expressed concern whether the contentions in the basis of plea were consistent with rape. If not, the appellant should not have pleaded guilty. The lawfulness of the sentences on counts one and two was also questioned. After explaining his professional position, counsel for the appellant withdrew from the case. Different counsel were instructed on both sides on 20 June 2007, when we considered applications for leave to appeal out of time against the convictions for rape and blackmail and an appeal against sentence on the original grounds together with an additional ground, that the sentences imposed on counts one and two exceeded the statutory maximum sentence. The necessary leave was granted. We reconsidered both conviction and sentence.
We must summarise the facts of this bizarre and unpleasant story. The victim was a student. She went to college in 1999 where she met the appellant. They became very good friends, and in 2002 a sexual relationship began. Consensual intercourse took place, usually in hotel rooms booked by the appellant. After a few months the complainant started to receive threatening text messages and telephone calls. These messages continued throughout her student days, first at college, and later when she went to university. Something of their intimidating nature can be captured in comments like “we are going to kidnap you”; “we are going to convert you”; “we are going to kill you”. The complainant confided in the defendant. At first she believed that the messages came from Muslim students at college. However when she left college and went on to university, the messages continued, and she continued to share these worries with the appellant. He was responsible for all the messages, but purported to give her every reassurance that he, together with his friends, would be able to protect her.
Eventually the complainant decided that she wished to involve the police. She told the appellant, who said that he would lodge a complaint on her behalf. She agreed. When she asked him for updates on the investigation, he responded that it was in progress, and the police would be in touch with her in due course. Shortly afterwards a text message was received from the complainant by somebody describing himself as P.C. Ken. In fact this was the appellant. PC Ken said that he was the officer in charge of her case. He sent regular text messages to her asking her for details of the phone calls and messages she had received, and requiring her to submit statements by text. She believed that these inquiries were legitimate, and so she complied. Eventually the complainant decided that she would pass on all necessary details to the investigating officer through the appellant. At some stage PC Ken told the complainant that the appellant would be able to watch her house and arrange for security including undercover protection at a cost of £1,000 annually. Again, the complainant agreed. The appellant led her to believe that he paid the first two years security fees, and in the third year she handed him £700 from her own pocket. He told her that he paid the remainder. In the fourth year she was unable to raise £1,000 and refused to do so, but shortly afterwards she received a message from the appellant that he had paid it.
In due course a text message to the complainant stated that PC Ken had died, and that PC Bob had taken over the investigation. PC Bob was as fictitious as PC Ken. All the messages were coming from the appellant. Some correspondence followed, until PC Bob fell out of the picture. The appellant told her that PC Bob had accepted bribes and had been sentenced to a substantial term of imprisonment. Thereafter, yet another fictitious police office, PC Thomas, was created. The complainant received a message from PC Thomas that he had taken over the investigation. The process continued as before. The complainant was to provide statements by text. When she failed to do so, she was told that the perpetrators would be getting away scot free.
The complainant had no idea that the appellant was responsible for this entire process. She was concerned about their ongoing relationship, and during the last two or three years tried to break it off. Whenever she sought to do so, she would receive text messages from the different police officers, telling her that the appellant had tried to kill himself and that she should do her duty and take care of him. She was told that she should sleep with the appellant, and that she would be liable to a fine if she did not. She received something like fifty such demands over a four year period. On each occasion she complied with them and had intercourse with the appellant in a hotel room. But for the messages from the fictitious police officers, she would not have done so.
This strange, indeed remarkable, story came to an end in March 2006. Letters were sent to the complainant's home. Her mother received them. They caused her and the complainant's family considerable distress. They asserted, in lurid terms, that the complainant had been behaving promiscuously. The complainant decided to go to the police. She reported the facts. On 17 th March 2006 the appellant was arrested.
In his first interview the appellant insisted that the involvement of the police was genuine and that they had sworn him to secrecy. Eventually however he admitted that he had been responsible for the creation of the fictitious scheme. He explained that he thought that the complainant was going off him, and no longer wanted to have intercourse with him as often as she had. In answer to the direct question, “when you had sex with D on those occasions, did you have true consent?”, he responded “No”. He admitted that she had intercourse with him because of the texts. She would have been content with intercourse from time to time, but he wanted greater frequency. These admissions assume considerable significance when the basis of plea is examined.
The first document received from the appellant was the defence case statement, based on the appellant's then instructions to counsel. The sexual relationship, which began in the latter part of 2001 and continued throughout the complainant's time at college and university is admitted. She was a “willing partner at all times during the sexual relationship”. The statement proceeds to make a series of admissions about the appellant's responsibility for the invention of the fictitious police officers. However it asserted that the complainant had been receiving the unsolicited and intimidating texts from others, and that the scheme represented the appellant's best efforts to help her address the problems. Paragraph 7 reads:
“The texts which made reference to having sex with the defendant were sent by him. At the time such texts were sent the defendant and the complainant were engaged in a full consensual sexual relationship and the texts did not therefore induce the complainant to have sexual relations with the defendant. Such texts, or parts thereof, were intended as a joke by the defendant and that was the manner in which they were treated by the complainant.”
On 5 July 2006, before the basis of plea became available, there was a discussion between counsel, and the...
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