R v Linekar
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,MR JUSTICE MORLAND |
| Judgment Date | 21 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1021-9 |
| Docket Number | No. 93/6308/X4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 October 1994 |
[1994] EWCA Crim J1021-9
Before: Lord Justice Swinton Thomas Mr Justice Morland and Mrs Justice Steel
No. 93/6308/X4
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR J MARKSON appeared on behalf of the Appellant
MR T SPENCER appeared on behalf of the Respondent
Friday 21st October 1994
Mr Justice Morland will give the judgment of the Court.
On 10th September 1993 in the Central Criminal Court before his Honour Judge Coombe, the appellant was convicted by a majority of 11 to 1 on a single count of rape. On 8th October he was sentenced by way of a combination order to two years probation and 100 hours community service. The sentence imposed indicates the unusual facts of the case. The appellant appeals against his conviction by leave of the Single Judge.
The complainant was a woman of 30 who worked occasionally as a prostitute to supplement her Social Security benefit. On 21st March 1993 she was working as such outside the Odeon Cinema in Streatham. Some time after midnight she was approached by the appellant who was then aged 17. There was negotiation between the two of them and the sum of £25 was agreed for sexual services. The appellant and the complainant went off to find a suitable place where they could have sexual intercourse. This proved difficult but eventually, after a long period of time, sexual intercourse took place between them on the balcony of a block of flats. After sexual intercourse had taken place the appellant, in breach of the agreement he had made with the complainant, made off without paying.
Immediately the complainant knocked on the door of a neighbouring house. She was distressed, nearly naked and complained that she had been raped. The police were called. The appellant was arrested and, when interviewed, told a number of lies.
The Crown case, based on the evidence of the complainant, was that the act of sexual intercourse took place as a result of a forced violent assault upon her and did not take place with her consent. She said in evidence that she would not have agreed to sexual intercourse until she had been paid in advance and unless the man wore a condom.
The case for the Crown was what might be described, if one can describe rape as such, an ordinary rape; that is forcible pentration of the woman without her consent.
The appellant did not give evidence on his own behalf, but cross-examination of the complainant was on the lines that the act of sexual intercourse had been done with the complainant's consent, and that what had happened was that afterwards the appellant had broken his promise to pay her the £25. It seemed clear that the appellant did not in fact have £25 and, as the jury were to find by a verdict, which was in the nature of a special verdict, at the time of sexual intercourse, he did not have any intention of paying even if he had the money to pay.
Before summing-up to the jury, discussion took place between counsel and the judge on the basis that a possible conclusion by the jury was that the jury might not have been sure about the evidence of the complainant and there was a halfway house, so to speak, that sexual intercourse had taken place with the consent of the complainant, but that consent had been obtained as a result of, and induced by, the fraud of the appellant; that fraud being a false pretence by him that he had a present intention of paying the £25 that he had promised when the bargain was made.
When the jury returned, they were specifically asked on what basis they found the appellant guilty. The answer that was given by the foreman of the jury was that the basis was that the appellant never intended to pay and consent was vitiated by fraud.
In his summing-up, the learned judge, at page 13D said:
"There is a possible scenario, if I can put it that way, in between those two extremes, and again it is a matter of fact for you to judge, but I want to tell you what the legal position would be. The woman, as I have reminded you just now —and I will go through her evidence in slightly more detail a little later —said, 'I would never go ahead and have sexual intercourse with a man without payment first,'….."
The judge went on to say, at page 13H:
"It is a real possibility that she decided to go ahead and have sexual intercourse, trusting the man would honour his obligation, and supposing contrary to my second scenario, which would lead to a complete acquittal, you were satisfied so you were sure that the defendant never intended to pay before he penetrated her at all. He tricked her you follow, not forced her because that is scenario number one, but tricked her, well then I am going to tell you that it would be the case or may be the case, that you would take the view that there was no consent at all. That would be consent vitiated by fraud, you follow. She tells you she would never consent to have intercourse and indeed nobody suggested they had intercourse because they were romantically attached or physically affected by each other emotionally, it was a commercial deal, a squalid type no doubt. If the position were that he quite deliberately never intended to pay at the outset, well then the fraud on her is that she was tricked into believing he genuinely intended to pay when she submitted sexually, and therefore it is a matter for you which you would no doubt take the view that the fraud vitiated the consent because her consent was given on the basis he was going to pay up, you follow….. If that is your view, then it would be rape because the Crown would have proved lack of consent, you follow, and you may think I say it would be rape that may be putting it too highly, you have got to go on whether he appreciated that his fraud meant that she was not consenting. You have got to be satisfied so you are sure that he knew of it or was reckless about it at the very least, but if you were of that mind it would still be rape."
The second scenario that was open to the jury to conclude was that having had sexual intercourse the appellant changed his mind, decided not to pay her the agreed £25 and made off. In that case, as the judge made clear to the jury, the appellant would be not guilty.
On page 15D of the summing-up the learned judge said:
"It would help me, if you take the view he is guilty at all, if you would indicate that he is guilty because he forced himself upon the woman or that he is guilty because he did have intercourse without her consent, her consent being vitiated by fraud."
The reason the judge asked the jury to come with, in effect, a special verdict, was so that he could sentence the appellant in accordance with the finding of the jury, and it was for that reason that the sentence of the combination order was imposed by the judge.
This Court is indebted to both counsel for their research.
Mr Spencer for the Crown realistically said to us that he anticipated that he would have difficulty in upholding the conviction.
Before the learned judge there was argument, and cases were cited before him, but the learned judge realised that the matter was of considerable legal difficulty and anticipated that the result of his direction might well, and understandably, reach this Court.
The problem is highlighted, for example, in the 15th Report of the Criminal Law Revision Committee on sexual offences which is dated 30th December 1983. It is worth quoting paragraph 2.25 on page 496 of the Reports of the Committee:
"We are, however, concerned about the precision of the distinction that can be drawn between fraud which is sufficient to vitiate consent and other types of fraud. This concern has been increased by a recent decision of the Court of Appeal that the issue of consent is a question of fact for the jury and that consent should be given its ordinary meaning."
That is the case of Olugboja (1981) 73 Cr.App.R. 344, where the court indicates that in certain cases it was of the view that the decisions could be explained by a vitiation of consent by fraud.
The Committee went on to say:
"At one extreme, fraud as to the nature of the act is clearly accepted as rape; while, at the other, a man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise, would not generally be regarded as committing rape. It is, however, in our opinion inherently unsatisfactory to leave what constitutes an offence to be determined on the facts of each case. We recommend, therefore, that it should be expressly stated in the legislation which cases of consent obtained by fraud amount to rape. Somewhere a line must be drawn. We would include within rape those cases that before 1976 clearly were rape, namely fraud as the nature of the act and impression of a husband. We see no reason to distinguish between consent obtained by impersonating a husband and consent contained by impersonating another man, so that latter case should also constitute rape. All other cases of fraud should be dealt with under section 3 of the 1956 Act and should not amount to rape."
The reference to section 3 of the 1956 Act is the procurement of sexual intercourse by false pretences.
The value of the paragraph which we have quoted from the Criminal Law Revision Committee Report of 1983 is that it was a Committee of which Lawton LJ was the chairman and among its members were Waller LJ, Lloyd J (as he then was), McCullough J and the future Hazan J.
We venture to suggest that the recommendation in that paragraph does represent the law as it now is, and has been probably for over a century.
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