BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bryan v R. [2009] EWCA Crim 2291 (10 November 2009)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2291.html
Cite as: [2009] EWCA Crim 2291

[New search] [Printable RTF version] [Help]


Neutral Citation Number: [2009] EWCA Crim 2291
Case No: 2008/4939/B2

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
His Honour Judge Smith QC
T20057431

Royal Courts of Justice
Strand, London, WC2A 2LL
10 November 2009

B e f o r e :

LORD JUSTICE MOSES
MR JUSTICE OPENSHAW
and
SIR GEOFFREY GRIGSON

____________________

Between:
Omar Bryan
Appellant
- and -

The Crown
Respondent

____________________

Mrs M Smullen (instructed by Crystal Partners Solicitors) for the Appellant
Miss J Knight (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 13 October 2009

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright

    Lord Justice Moses :

  1. On 13 October 2009 we allowed the appellant's appeal and quashed his conviction of rape. The conviction was quashed after a period of just over three years and two months during which this appellant had been detained in a young offender institution following his sentence of six years' detention. He appealed against conviction upon a reference by the Criminal Cases Review Commission pursuant to s.9, Criminal Appeal Act 1995, following a refusal by this court of leave to appeal against the conviction on 17 January 2007. Following that refusal the appellant submitted his application to the Criminal Cases Review Commission on 20 April 2007 and his case was referred by them on 4 September 2008. We announced our decision immediately following oral argument in an attempt to rectify, in a limited way, the disservice the criminal justice system has done to this young appellant. He is now 21 and was only 16 at the time of the alleged offence of rape.
  2. The complainant was a young 15 year-old schoolgirl, L. She alleged that she had been raped on 1 February 2005 by two boys, neither of whom was known to her. Her movements prior to the rape are of importance in this appeal. In her video interview, which stood as her evidence-in-chief, she said she had left school early with her friend, S, whose mother had collected them and taken them to her friend's grandmother's flat. In her interview she explained that the reason she was able to leave early was because there was a supply teacher.
  3. She said she left her friend's address alone at about 4.00 p.m. and was walking through an area called Angel Town to visit her grandmother when she saw two boys, one of whom called to her, then approached her and pulled her towards a block of flats. The boys managed to take her inside where one of them, who had a Jamaican accent, pulled down her trousers, pressed her against the wall and then inserted his penis. She said she had shouted and fought back but had been told to keep silent. The other boy had an English accent.
  4. There was a noise outside, the boys ran off and she ran back to her friend's house where she made a complaint of rape. Her mother arrived, took her home and called the police.
  5. Her friend S, who described L's distress when she returned to her house following the attack, said she was not a close friend and was not in the same class. She confirmed that they had left the school together when collected by S's mother.
  6. There are two important features of this evidence: firstly, that the rape was committed by a stranger with the assistance of another stranger and secondly, that it occurred after the complainant had left school with her friend.
  7. Medical evidence suggested that abrasions in the genital area could be consistent with either recent consensual or non-consensual penetration but in a supplementary report and evidence-in-chief the ultimate conclusion of the doctor was that the multiple injuries seen were more likely to support the complainant's account. Semen on the knickers of the complainant revealed DNA which came from the appellant.
  8. The appellant was invited to Brixton police station and attended without an appropriate adult or solicitor on 26 April 2005. He denied rape or any sexual encounter with either the complainant or anyone else. Once the DNA had been analysed he was asked to return on 16 June 2005. Again, he chose to have neither solicitor nor an appropriate adult. When he was told that a DNA match had been confirmed, initially he maintained his account that he had not had a sexual encounter with anyone at the time of the alleged offence but then told the interviewing officers that on or around 1 February he had met a girl who called herself "Shanice" and told him she was 16. He said she had taken his mobile telephone number. She then telephoned him later the same afternoon and they met. He had taken her back to his house, which was in the same block as S's grandmother's flat. There they had consensual sexual intercourse and he ejaculated over the top of her leg. He added that a few days later the girl had telephoned him again. It is important to note that from the time of the second interview the police knew that the defendant was contending that the girl had his telephone number. By the time he gave evidence he said that he did not have a telephone at the time and said he explained this to the complainant and had given her his friend's telephone number.
  9. Both before and during the trial the defence concentrated on contending that the appellant's mental vulnerability was such that he could not have a fair trial. He should have had a legal representative or appropriate adult at his police interviews and was not capable of understanding the trial process or giving evidence in his own defence. To that end the defence relied upon a clinical psychologist; the prosecution responded with evidence from a consultant forensic psychiatrist. On the basis of the dispute between those experts the judge ruled that the defendant could receive a fair trial and that the evidence of the interviews should not be excluded. We mention this issue, not because it is relevant to this appeal, but because it seems to have diverted the attention of the defence away from the central issue whether the complainant was telling the truth when she said that she had been raped by a stranger or the defendant was telling the truth when he said that they had met and he had given her a telephone number, prior to a second meeting and consensual sexual intercourse.
  10. At trial the issue of the defendant's mental vulnerability was raised again. For the purpose of this appeal it is necessary to recall the evidence given in relation to the issue of the mobile telephone number. Both prosecution and defence laboured under significant difficulty. The officer in the case had not taken possession of the complainant's phone for examination because he thought "it would be bad form and might jeopardise her case". His approach, in which he sought not to undermine the complainant's trust in him, was criticised both by the judge during the course of his summing-up and by the Court of Appeal, when considering the defendant's application for permission to appeal. The trial judge and the Court of Appeal's criticism might have been more trenchant had they been aware, as the CCRC learned, that prosecuting counsel had herself advised that in the light of the defendant's second interview a check should be carried out and itemised bills, for the defendant's mobile and "if necessary" records be obtained for the complainant's mobile and landline a few days before and after the attack. Counsel continued:-
  11. "It would significantly undermine the defendant's account and assist ours if we can show that there were no calls made by the complainant to his phone."

    We might add that the records would significantly have supported the defendant's account and undermined the prosecution if there was evidence that the complainant had a number stored on her mobile under the name of Omar which, it later emerged, was the mobile telephone number of the defendant's friend, Ricardo Johnson, 'Ricky'.

  12. As we have indicated, in his proof the defendant said that the mobile phone number he gave to the complainant was not the number of his own mobile but rather that of his friend Ricky, whose mobile he was using that day. At the trial, at some stage he instructed his counsel that the complainant's father had telephoned Ricky's number and asked to speak to Omar about his daughter. It is not clear when he gave those instructions but they must have been last-minute since they were added to the proof in defence counsel's handwriting. But those instructions must have been given before defence counsel cross-examined the complainant, L, on 2 June 2006. The police had, in accordance with counsel's advice, obtained the mobile telephone in the defendant's possession at the time of his first interview but since the police had no knowledge of the relevance of Ricky's mobile telephone and the defendant himself had not acquired the telephone he had handed to the police until about a month after the complaint, the police searches were useless.
  13. The cross-examination of the complainant L is of significance. During the course of her cross-examination defence counsel put to the complainant that she had been talking to a boy she had met near Loughborough Junction station on the afternoon of 1 February and asked him for his mobile telephone number. She replied that she did not think so but that she did not remember. She denied that she had telephoned that number again and arranged to meet the boy she had met. She denied she had ever met a boy called Omar.
  14. Later in the cross-examination she was asked whether at some time between 1st and 3rd or 4th February 2005 her father had come across a boy's number on her mobile telephone. She agreed and thought he had phoned "somebody". Defence counsel asked whether her father had phoned Omar and she said she could not remember. She said her telephone was "pay as you go" and she did not have it any longer.
  15. But in re-examination the complainant was more forthcoming. In re-examination, the complainant repeated that her mobile telephone had only been working for a little while but had then cut out because her battery had died. Counsel then said:-
  16. "During this particular day you were at school; do you know what time you left school on 1st February? I know it was early".

    The complainant answered that she did not know what time she had left and that the times were not necessarily accurate. That there was no direct question as to whether she was at school that particular day has turned out to be unfortunate for reasons to which we shall turn later. Prosecuting counsel then asked whether she had phoned any boy or taken a telephone number from any boy on the day that she alleged she had been raped. The complainant said no. She was then reminded that she had agreed that her father had found a boy's number on her mobile and counsel asked whether she remembered the boy's name. She replied: "It was Omar". The answer must have come as a surprise to prosecuting counsel who told the Commission that she did not know what the complainant's answers would be. The matter was then probed.

  17. The complainant said that she had had Omar's telephone number for a long time before the rape and had obtained it when she was with her cousin in Brixton. She said her cousin had spoken to him. This was a long time before the alleged rape. She said she had spoken to the boy called Omar on the phone but had not met him. At this stage it appears that the jury asked whether the Omar was the same person as the person in the dock and why her father had looked for a number on the phone. The judge himself, at this stage, asked whether Omar was the same Omar and prosecuting counsel indicated that she would come to that point later.
  18. The complainant said that she had spoken to the person she referred to as Omar on two occasions and when he asked whether he could see her she had declined because she was busy and had to go to school and "that was it". She was then asked a series of questions as to how her father had found the number of the person named Omar and accepted that it was in her "address book" on her mobile phone. She then said that this had occurred two months before the alleged rape. She said that the boy Omar whom she had met a 'couple of months' before and whose number she had programmed into her mobile phone was a different person from the person who raped her. She said he was short, black and 17. She said he looked nothing like the boy who had raped her. She had seen the boy, whose number she had entered on her mobile under the name of Omar, once again on the bus but that was before the rape.
  19. It is important to underline contradictions in the complainant's evidence which are emphasised by the Commission. The complainant told defence counsel in cross-examination that she had never met a boy called Omar, a denial she made twice, first to defence counsel, then the judge. In re-examination she admitted that she had met a boy called Omar, whilst denying that it was the same Omar who had raped her. In re-examination at first she said that although she had given Omar her mobile telephone number he had not given her his number, but that she had programmed it in when he had telephoned on another day. Later she said "he wrote it in and I saved it". At the end of the re-examination the judge took up more of the jury's questions, in particular as to how it came about that her father was looking for a number on her phone. She replied:-
  20. "He was just asking me who did I speak to on that day, or what boys do I talk to or something and he start looking through my phone and calling different numbers."
    Judge: "Which day are you talking about when you say who I was speaking to that day which day was he referring to?"
    Answer: "The day when the incident happened."
    (Our emphasis).
  21. This appeal does not raise any criticisms of the judge's summing-up. But it is relevant to observe, like the Commission, that the judge did not refer to these contradictions and discrepancies in the complainant's evidence. It is possible that the jury missed the significance of the fact that the father's focus had been on those boys to whom she had been speaking on the day of what she described as the incident. Her evidence had been that she had been speaking to a boy, also called Omar, but sometime before the alleged rape. But it could not be disputed, in the light of her re-examination, that she had stored on her mobile a number under the name of Omar.
  22. By the time the defendant gave evidence it had emerged, as we have said, that his account was that the mobile telephone number on the complainant's telephone was that of his friend whose telephone he had been using on that day. His evidence accorded with his proof. He told the jury that his friend had received a phone call from the girl's father, asking to speak to Omar. He said he did not speak to her father. He then reiterated that he had a call from the girl who he knew as Shanice saying that she was going to "bunk off school and come and see me". He then appreciated that she was not 16 and did not want to see her anymore. The judge summarised this issue to the jury:-
  23. "The evidence that [L] came to give in her evidence before you in her cross-examination and re-examination about the name Omar being on her mobile phone diary, the defence submit that the evidence of L that emerged in the evidence before you, that she had a boy's name, Omar, on her phone, strongly undermines her evidence that she was raped by Omar Bryan on 1st February 2005. The submission is being made to you 'look, she has the name of the chap on her mobile diary, her mobile phone diary. That indicates that she is a downright liar.' The Crown say that you should accept her explanation about this piece of evidence. So those are the rival submissions about that."
  24. The judge then drew attention to her agreement that her father had found a boy's name, Omar, on her mobile phone on that day. He reminded them that that was a different boy who did not look anything like the boy who had raped her. He reminded the jury of the defendant's account that his friend had received a call from her father. In doing so, the judge stressed on three occasions in one passage that there was no independent evidence to support the defendant's evidence that his friend, Ricky Johnson, had received a phone call from the girl's father:-
  25. "Now it was the defendant's evidence - - and members of the jury it does depend entirely on his word alone - - that his friend, probably Ricky, although it was not quite clear, had received a call from dad, wanting to speak to him, Omar Bryan, because something had happened to his daughter, but the defendant said he did not speak to that person. But, you see, that piece of evidence, that call apparently made by L's father was actually one that got through to the defendant's friend, that is entirely based on the defendant's account. There is no independent evidence at all, other than the defendant's own account, that that is what took place."
  26. We emphasise again that this appeal is not an occasion to revisit any criticisms of the judge's summing-up, a summing-up approved and commended when this court considered the application for permission to appeal. But with hindsight, the stress on the absence of any supporting evidence is of considerable significance in the light of evidence which the Commission has now obtained. Moreover, it serves to underline the fact that the prosecution was suggesting throughout that the defendant's account was untrue and that he had never given her any phone number, let alone Ricky's phone number, and thus her father could never have found it on his daughter's telephone and never have phoned Omar, the defendant, or his friend Ricky.
  27. But the essential basis of this appeal is that evidence has now been obtained which not only confirms that her father did telephone a number stored under the name of Omar, but also that he telephoned this defendant's friend, Ricky Johnson. Before considering the significance of that evidence we should shortly outline the course of this defendant's application for permission to appeal which came before the full Court of Appeal on 17 January 2007, the application having been referred by Mitting J. The grounds of application focussed upon the defendant's vulnerability. They suggested that the interviews were obtained in breach of the code under PACE and that the case had not been properly investigated. The defendant relied both upon the failure of the police to recover the complainant's mobile telephone and the further failure, irrelevant to this appeal, to obtain closed circuit television footage in relation to the evidence of a caretaker, called by the defence, whose evidence tended to suggest that the offence could not have occurred in the place identified by the complainant. The Court of Appeal dismissed these points as unarguable. Of more relevance to this appeal is the way it dealt with the issue of Omar's name being stored on the complainant's mobile telephone. Rafferty J emphasised that the complainant's evidence was that the Omar to whom she had spoken was not the perpetrator of the rape. The court observed that the cross-examination which elicited the evidence that the complainant's father had made a telephone call to a number of men including Omar must have been derived from the instructions of the defendant. Rafferty J continued:-
  28. "The jury must have known that the basis for that (from the defence point of view) useful line of questioning came from the dock." [2007] EWCA Crim 63 paragraph 19
  29. It is of note that the Crown sought, apparently both at the trial and on the application, to suggest alternative explanations as to how it was the appellant could have learned that the complainant's father had telephoned a boy called Omar whose number was stored on his daughter's mobile telephone. The Crown continued to deny that the complainant had the number the defendant had been using stored in her mobile and to assert that her father had telephoned a different Omar. Its suggestion was quoted, without demur, by the court:-
  30. "As to timing, the Crown suggested alternative explanations, and alternative explanations for the provision of Omar's telephone number. Youngsters mix, word gets round. Perhaps information had passed by that or other means. It was before the jury from the applicant's own mouth that he had seen L a few times post alleged offence." (19)
  31. The criticisms of the police investigation, both in relation to the mobile telephone evidence and closed circuit television, met with this response from the court:-
  32. "What is important in the submission of the Crown is that all these matters were squarely in front of the jury in detail and everyone clearly and unimpeachably reviewed in a summing-up of which there is no criticism. True it is that some investigation was made of the existence of closed circuit television footage, but, nothing such as could assist either party the matter went no further (sic). That is not sufficient to lay the groundwork for a criticism that the police were negligent or even lackadaisical in their investigation of the case."

    Had the court been aware of the evidence subsequently obtained by the Commission it is unlikely it would have rejected the defence criticism of the investigation.

  33. Following this court's refusal of leave to appeal, the appellant submitted an application to the Criminal Cases Review Commission on 20 April 2007. In a thorough and clear statement of reasons for a reference to this court the Commission enclosed statements that had not previously been obtained from, amongst others, the appellant's friend, the complainant's father and from Lambeth Borough Council, the school register for the week beginning 31 January 2005, in respect of both the complainant and her friend with whom, she said, she left school on 1 February 2005. They also obtained evidence from other witnesses and interviewed counsel for both sides.
  34. Johnson's statement was taken on 30 January 2008. He states that before the allegation was made he had lent his mobile phone to Omar. He continues:-
  35. "After Omar had returned the phone I received some calls intended for him. One was from a man asking for Omar, who wasn't there. The man said he wanted to speak to Omar about his daughter. I said Omar wasn't there. The man didn't give his name or his daughter's name. He said he would call back and he did about a day later. On this occasion Omar was there and I handed the phone to Omar. I knew it was the same man as the day before. I didn't hear any of the conversation and don't know how long it lasted."
  36. The Commission interviewed the appellant on 10 March 2008. He gave an account of the mobile calls but, as the Commission point out, added extra details, which, the Commission notes, were to an extent inconsistent with what Johnson says.
  37. The Commission interviewed the complainant's father and took a statement on 18 March 2008. He was asked what steps he had taken after being told about the rape of his daughter. He said he remembered his wife telling him that his daughter had been receiving phone calls from boys and that she did not know who they were. He asked his daughter about this:-
  38. "She said she believed her friends were giving out her telephone number. [Her mother] showed me a number recorded on her mobile phone. I dialled that number either on her phone or my own. A woman answered. She had a very strong Jamaican accent. I said 'this number keeps phoning my daughter's phone and she doesn't know who is calling, I want to know who is calling her'. The woman said it could be any of her boys. Then she called out 'Omi'. I told her my daughter had had her phone confiscated because of these calls.
    I have been asked when this call took place, and I am sure it took place before the rape, several months earlier in late 2004.
    I know that the name Omar is often pronounced 'Omi' in Jamaican patois.
    When I got to the trial I saw the defendant's name on the board. When I saw the name Omar I remembered the incident of the phone call. I attended the trial but did not hear all of the case. I cannot remember L being asked about a phone call I had made. But I do remember someone asking me about the phone call outside the courtroom. This person was saying the defendant had spoken to L's dad. I replied I'd never spoken to Omar, I'd only spoken to his mother."
  39. The Commission report their view that the complainant's father was being evasive as to the timing of the telephone call. They interviewed L and she was, apparently, adamant that her father had made the telephone call after the rape incident, as she had said at trial, and added that she still retained an independent memory of the call being made at that stage. Certainly, her evidence at trial is wholly inconsistent with her father's evidence of a phone call taking place several months earlier. Indeed, the context in which he places the phone call powerfully suggests that he is in error about its timing, quite apart from what his own daughter says.
  40. For the purposes of this appeal, it is of the utmost significance that the Crown's written submission drafted by counsel who did not appear at trial was as follows:-
  41. "If the court is minded to receive fresh evidence then the respondent's view as to what form the evidence should take is as follows. Statements taken from Lincoln Campbell and Ricardo Johnson by the CCRC could probably be read by the court. They add little to the evidence at the original trial and the respondent would not require these witnesses to be called." (paragraph 9, our emphasis)
  42. This response demonstrates that the prosecution do not dispute the evidence of this appellant's friend, Ricardo Johnson. The Crown's only argument was that the fresh evidence did not add anything significant to what the jury already knew and thus did not render the conviction unsafe. Counsel for the prosecution loyally repeated that submission and did not resile from the Crown's stance that it would not cross-examine Ricardo Johnson. The Crown said that the jury already knew that L had stored the number of someone she said was a different Omar on her phone, that her father had called that number two days after the rape, and that the appellant had said his friend Ricky had received a call from the complainant's father two days after the rape.
  43. Of course it is true that the jury knew those facts. But the submissions of the Crown, in writing and before this court, demonstrate a striking change of approach. During the trial the Crown clearly disputed that the defendant had ever met the complainant and given her a number. The dispute was emphasised, possibly over-emphasised, by the trial judge's continuing reference to the fact that the defendant's account was unsupported.
  44. The Crown continued to suggest that the name of Omar on the complainant's phone was not a reference to this appellant on the application for permission to appeal. That is why this court was driven to speculate as to how the appellant might have learned of the phone call from the complainant's father to someone who happened also to be called Omar.
  45. Now it seems that the Crown do not even dispute Ricardo Johnson's confirmation of the evidence of this appellant. This court must, therefore, proceed on the basis that it is proved that this complainant's father did call the number of Ricardo Johnson's phone. That has fundamental consequences in this appeal. It shows, as the Commission point out, that this appellant must be telling the truth when he says he met the complainant. There is no other sensible explanation as to how Ricky Johnson's number came to be stored on the complainant's mobile under the name of Omar. Any other explanation is merely fanciful. It involves a suggestion that although the appellant and the complainant had never met (other than when he attacked L) his friend's number came to be stored on the complainant's mobile under the name of some other person with the same first name as this appellant. The suggestion is absurd. To say that the evidence of Ricardo Johnson adds little to the evidence of the original trial is an inadequate response and, whilst we make no criticism whatever of counsel who has been compelled to take over this case, it is not a suggestion that should ever have been made.
  46. It is of note that the only ground on which the prosecution relied was s.23(2)(b) of the Criminal Appeal Act 1968 in pursuing its argument that the evidence did not afford any ground for allowing the appeal. It did not suggest that there was no reasonable explanation for failure to call Ricardo Johnson. But we should note, in agreement with the Commission, that whilst greater efforts ought to have been made to contact him, the failure to do so is partly attributable to the late instructions from the appellant that his friend had received a telephone call from the father and to the focus of the defence on seeking to demonstrate the mental vulnerability of the appellant.
  47. The undisputed evidence that the appellant's friend did receive a phone call from the complainant's father which could have only arisen as a result of that number being stored on the complainant's phone is sufficient, in our view, to dispose of this appeal. Had the jury known that this appellant's friend's number was stored on the complainant's phone under the name of Omar, it would have destroyed any sensible suggestion that the complainant and the appellant had not met and that the appellant had not provided the telephone number stored on her phone. It was powerful evidence that from the second interview the appellant had been telling the truth. As the Commission put it in its report:-
  48. "If the number or one of the numbers [the father] telephoned was Ricky's, it follows that L had spoken to the person who gave her Ricky's telephone number on the day of the rape. According to Mr Bryan's account at trial, that person was him. His claim of a call received by his friend, now corroborated by Ricky, has to be assessed in this context."
  49. It is inconceivable that the judge would have directed the jury in the way he did had he known of the evidence of the friend. On the contrary, the burden of his directions was that the jury had to decide whether the complainant or the appellant was lying and he was at pains to stress that the defendant's account was unsupported. Nor could the Court of Appeal have dismissed the application in the terms it did had it known of the telephone call to the appellant's friend. There would have been no basis for it to record the Crown's speculation as to how the appellant might have learned of the father's telephone call.
  50. Fundamentally, the new evidence establishes that the complainant and the appellant were not strangers and the basis of the prosecution's case that the complainant had been raped by a stranger was fatally undermined.
  51. That is enough to dispose of this appeal but it is not, as we have indicated, the only new evidence that the Commission has managed to obtain. During the course of the interview with the complainant's father he told the Commission that he had walked the route with his daughter and two police officers and that on that occasion he believed his daughter had told him that on the day of the incident she had either not gone to school or left early in order to attend a record-signing in either Victoria or Oxford Street. He believed that the singer was called "Mario".
  52. The Commission established that there was a singer called Mario who had visited a recording studio near Oxford Circus where he had given interviews between 11.30 a.m. and 2.00 p.m. Moreover, the school register showed the complainant absent as ill on both Monday 31 January and Tuesday 1 February. Whilst it is true that the prosecution, in the re-examination to which we have already referred [14], assumed, without asking a direct question, that the complainant had been in school all day, it is striking that the complainant herself suggested that she had been in school and had merely left early. Interviewed on 21 July 2009 she said that she did attend school and was not present at registration. She also said she was only in school about ten minutes before leaving to go and see "Mario" in the West End. She said she came back to school in the afternoon and was there for the only lesson she attended, the last lesson given by a supply teacher in maths. She explained that she was asked to write her name on a piece of paper rather than on the normal register. Her evidence that there was a supply teacher is consistent with what she said at trial. The Deputy Headmaster attended before us but the prosecution did not require him to be called. Counsel told us, on prompting by the Deputy Headmaster, that the supply teacher was a former permanent teacher who was well aware of a procedure which would not have allowed the register to be taken in that way. Furthermore, it provides no explanation as to how the register showed that she was absent due to illness. There is some suggestion that the register was inaccurate for the following two days since it shows the complainant to have been present when she denies that she attended school because of the rape.
  53. We need not resolve any issue as to the precise accuracy of the register. What is important is that the complainant now accepts that she was away from school during a substantial part of the school day and that she never revealed this at trial. It provides further support to the appellant's own account that he had met her earlier and that it was on that occasion he supplied her with his friend's mobile telephone number. Any jury would have regarded that evidence as being of significance. Whilst it is important not to be unduly harsh to a young witness of 15 who would naturally wish to conceal her absence from school, that concealment led to a misleading picture being painted for the jury. The jury must have proceeded on the basis that she had attended school until the time she told the jury she had left.
  54. Sir Geoffrey Grigson, in argument, suggested that this new evidence may well have undermined the evidence of the complainant. It was material to an issue of collusion. But we need not reach any conclusion: the two girls were not in the same class and it may be that the complainant's friend was unaware of the trip to see the singer Mario.
  55. The new evidence considered either in combination or separately leads us to the conclusion that the verdict was unsafe. There is no rational way in which the evidence of Ricardo Johnson's telephone number being stored on the complainant's mobile phone under the name of Omar can be explained other than that she and the appellant had indeed met. There is no rational basis for putting forward the allegation of a rape committed by a stranger whom the girl had never met. It is for those reasons that we announced our decision to allow the appeal and order the immediate release of the appellant.
  56. We cannot leave this distressing case without further observations. It is truly fortunate that the Commission exercised such conscientious hard work in obtaining evidence which so significantly undermined the safety of the verdict. Their diligence serves only to underline defects in the conduct of this case. Firstly, this case demonstrates the importance of a defence statement as required by s.5 of the Criminal Procedure and Investigations Act 1996. Such a statement, contrary to popular superstition, assists the defence as well as the prosecution. Had such a statement been served it would have alerted the police to the importance of investigating the complainant's mobile and to the need to obtain her itemised billing to see if the name Omar and the number had been saved and whether the calls had been made. If the police failed, as they did, to make such enquiries the defence could have applied under s.8 of the 1996 Act for specific disclosure. It would have then been in an even better position to criticise the police and to focus the attention of the judge and of the jury on the significance of the evidence. It would have demonstrated that the defendant was aware of the father's call long before the complainant's admission in re-examination. It might have compelled the prosecution to call her father and thus reveal the discrepancy between his evidence and that of his daughter.
  57. Once counsel learned that it was in fact Ricardo Johnson's mobile telephone that the appellant had been using, a supplementary defence statement could have been prepared and served. Since the trial, there is a statutory obligation to serve such a statement but we have made these remarks as to the importance of detailed defence statements and the need to update them pursuant to s.6(A) of the 1996 Act so as to demonstrate the assistance not only for the court and the prosecution but also for the defence that such a statement can provide.
  58. Secondly, we note with concern the slow progress this case made once the Commission had undertaken its careful and important work. The reference was received by this court's office on 11 September 2008 and representation orders were issued seven days later requiring grounds by the 2 October 2008. The case was clearly urgent but on 6 October 2008 the appellant's counsel asked for an extension of time to lodge grounds and the Crown asked for time to respond in 21 days. The grounds were received on 21 October 2009 but the prosecution failed to brief counsel and sought an extension of time on 13 November 2008 until January 2009, since counsel in the trial was away. This application was, if we may say so, rightly refused by the Registrar. The Crown's response came only on 1 December 2008. Where the Registrar exercises his discretion to seek a Respondent's Notice under Rule 68.6(1)(a), or does so as a matter of course under Rule 68.6(1)(b) because the court is concerned with the CCRC reference, it is essential that the prosecution give the matter high priority and respond fully and within the 14 days provided for by the Rule, or within such further time as the Registrar or the Court may allow. We have already remarked on the inadequacies of the Crown's response and its failure to grapple with the significance of the newly obtained evidence. Of course, the Crown might have indicated that it did not accept the evidence of Ricardo Johnson. But it never took that approach but merely persisted in asserting that the evidence made no difference.
  59. There was further delay which was the fault of no one. The appellant's skeleton argument was received on 17 March 2009 and the prosecution's response on 5 May 2009. By 23 June, the evidence of the school records had still not been agreed but by 20 July, with a date fixed for 29 July, both counsel confirmed that all fresh evidence had been agreed. There were then further problems about listing the case which led to the first available date being that on 13 October, 2009.
  60. We mention these dates because they demonstrate unacceptable delay between 21 October and 13 November 2008 due to the failure of the prosecution to brief counsel; this led to a request for an extension of time which was refused. This delay ought not to have occurred in circumstances where it was plain that the Commission, at least, took the view that the evidence it had obtained undermined the safety of the verdict. It was of the utmost importance that the prosecution grappled, as a matter of urgency, with that new evidence and reached a speedy conclusion as to the approach it would adopt. Moreover, agreement as to the fresh evidence was reached far too late. Of course, the prosecution had to be given time to consider its position and to consider whether it would agree that evidence. But, even allowing for circumstances which led to delay in the early part of 2009 beyond anyone's control, thereafter the prosecution should have reached a conclusion far earlier as to whether it was going to challenge that fresh evidence.
  61. Further, once it had agreed the fresh evidence, it should have considered, in conference with counsel, whether it was really appropriate to continue to oppose this appeal. For the reasons we have given, once the prosecution had decided that it would not require the appellant's friend to be called, in reality it had no sensible response to the appeal. If that conclusion had been reached, as it should have been, much earlier, then this court's office could have been notified and the case would have been listed immediately and the appellant released from prison. But in the result it was only on 13 October 2009 that he could be released. We were informed that there had been no discussion with senior officials representing the Crown Prosecution Service. We repeat that there is no criticism of prosecuting counsel who was not present at trial and who was merely loyally following instructions. But the absence of urgent but careful consideration seems to us to have led to an inadequate response to the concerns of the Commission in the light of the fresh evidence it obtained.
  62. We can do no more than reiterate that the new evidence leads us to the conclusion that the verdict is unsafe and should be quashed.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2291.html