No: 200000584/Y2-200200935/Y2
Neutral Citation Number: [2002] EWCA Crim 2074
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday 30th July 2002
B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE BUCKLEY

and

MR JUSTICE CURTIS

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R E G I N A

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ALLEN SMITH

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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(Official Shorthand Writers to the Court)
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MR P WETHERBY appeared on behalf of the APPELLANT
MR P MAKEPEACE appeared on behalf of the CROWN

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JUDGMENT
1.	THE VICE PRESIDENT: On 24th March 1995, at Teesside Crown Court, following a trial before His Honour Judge Stroyan QC, the appellant was unanimously convicted by the jury of rape and sentenced to 6 years' imprisonment. On 16th January 1996, the Full Court refused a renewed application by the appellant for leave to appeal against conviction. Two grounds were relied upon. First, complaint was made about the judge's summing-up in relation to corroboration. Secondly, it was said that the allegations of abuse by the complainant against her stepfather were false or had subsequently been withdrawn. Had this been known to the defence at the time of trial it would have been relevant for attacking the complainant's credibility.
2.	The Court of Appeal, on that occasion, refused an application on behalf of the appellant to adjourn for this matter to be further investigated. As will emerge, the complainant's allegation against her stepfather was never withdrawn. Indeed, for the purposes of the present appeal, its accuracy has been assumed and accepted on behalf of the appellant.
3.	The appellant, having served his sentence, was released from custody on 19th March 1999. He now appeals against conviction on a reference by the Criminal Cases Review Commission, under section 9 of the Criminal Appeal Act 1995. The Commission did not refer his sentence to the Court, but application for an extension of time of 6 years and nine-and-a-half months in which to seek leave to appeal against sentence has been referred to this Court by the Registrar.
4.	In outline, the circumstances were that, on 27th December 1993, the appellant, then 35, accepted an invitation from the complainant, then 19, to go to her house in the early evening for coffee. It was not in dispute that, shortly after he arrived, they had sexual intercourse; the sole issue was consent. In early February 1994, the complainant was admitted to hospital and found to have an ectopic pregnancy and, in consequences, her Fallopian tube was removed.
5.	The complainant, who was very small, four feet 11 inches tall and weighing six-and-a-half stone, lived in Darlington with her father, her parents being divorced. She first met the appellant in about November 1993 at a local public house. He asked her to a party on Boxing Day. She asked him to have dinner at her mother's, which he did and then he drove her to her father's where they had a cup of tea. She went to the party with him later that night and spent a good deal of time with him. Before she left, he asked her for a Christmas kiss and she gave him a kiss.
6.	On the following evening, 27th December, the appellant telephoned the complainant at about 7.00 pm and she asked him over for a coffee. He arrived 20 minutes later. She gave him the drink. They sat, talking together, on the settee. There was no one else in the premises. The appellant started to kiss the complainant. She kissed him back. He then put his hand under her T-shirt and touched her breasts and tried to undo her bra. She felt uncomfortable and squirmed away from him. As the trial judge put it, “she said in a pathetic manner that she didn't want to offend” the defendant when he sought to go further. He then started to touch her between her legs. She repeatedly said “no, don't” and was crying. He pushed her back on the settee, started to pull off her trousers and put his hand inside her knickers. She was kicking and shouting at him to stop but he lay on top of her and, by reason of the great disparity in strength and weight between the two of them, he overcame her resistance and had intercourse with her. This lasted a couple of minutes. He then said: “What's the matter, aren't I good enough?” She told him to leave her alone. She ran to the bathroom and asked what was wrong and she told him to go away. He asked if she wanted to go out for a meal, she kept repeating “no, go away”. She heard him telephone a taxi and leave the house about 10 minutes later. Thereafter she tried to telephone her mother but was unable to do so as the telephone cord had been pulled out. She ran to her neighbours, Mr and Mrs Beveridge and asked to use their 'phone. Her mother refused to come. The complainant hung up and lay on the floor crying. Mr Beveridge, asked her what had happened. She told him she had been raped. He immediately telephoned the police. She maintained she had never consented to intercourse with the appellant. In cross-examination she denied helping the appellant take her trousers off. She rejected the suggestion that she had not raised any objection when he started to have intercourse with her.
7.	Mrs Beveridge described the complainant as being in a terrible state, shaking and crying, and she said that the complainant had told her that she had been raped by a man named Allen.
8.	Dr Waterworth, a police surgeon, examined the complainant. She had self inflicted scars on her lower arms and upper abdomen. There was bruising of the inner aspect of the labia around the introitus. These and other findings were compatible with recent sexual intercourse. The bruising suggested some force had been used. It was elicited in cross-examination that the complainant suffered from manic depression and had been admitted to hospital for that condition on more than one occasion.
9.	A man called Peter Dawson was having a drink in the Queen's Head public house at about 9 o'clock the same evening, when the appellant walked in and told him he had been at the complainant's house earlier and they had ended up on the couch. According to Mr Dawson, the appellant said that the complainant had more or less refused his advances and so he had ordered a taxi and left. Mr Dawson recollected the appellant saying something like: “I hope she doesn't shout rape”. In cross-examination, he agreed that he was not wearing his hearing aid at the time and he might have got hold of the wrong end of the stick.
10.	The appellant was arrested at home the following afternoon, when he admitted having sex with the complainant but denied raping her. In interview he said the complainant had willingly had sexual intercourse with him and it was only afterwards she told him they should not have done so and gone upstairs to the bathroom. He had gone upstairs and asked what was wrong. She told him there was nothing the matter and she wanted him to leave. She refused to come out of the bathroom until he left. He therefore telephoned for a taxi. 
11.	In evidence before the jury, the appellant gave an account consistent with his interviews. He said he was separated from his wife and had met the complainant and her mother in November 1993. At the Boxing Day party the complainant had kissed him on the lips with her arms round his neck. On the following day he had gone drinking and had about five or six pints but was certainly not drunk. He telephoned the complainant and she invited him round. When he arrived she got him a drink and they talked. They started kissing. He felt her breasts. She did not object. He put his hand inside her knickers and a finger inside her. He started to pull her trousers down and she lifted her leg out of her trousers and knickers. She moved beneath him and they had intercourse. She was responding.
12.	He stood up after intercourse, and the complainant said: “We shouldn't have done that” a couple of times and went upstairs to the bathroom. She did not come back. He shouted what was she doing and she said they should not have done that she wanted him to leave. He called for a taxi and went to a public house. He thought her behaviour was not normal. He remembered bandages on her arms. He had spoken to Barry Dawson but he had not said that he hoped she did not shout rape. A rape allegation was on his mind, as was the possibility of her harming herself.
13.	In cross-examination, he accepted that he was closer in age to the complainant's mother than to the complainant. He did not think his emotions had been affected by drink. He denied that the complainant had said “no” or anything of the kind. He agreed he would have been strong enough to pull off her trousers.
14.	Expert evidence was called for the defence from a doctor, to the effect that the bruising of the labia was compatible with recent sexual intercourse, but the police surgeon's findings were consistent with both consensual and nonconsensual intercourse. A friend of the appellant gave evidence that he had been out drinking with the appellant on the 27th, but the appellant had only had five pints because he was not feeling well.
15.	The appellant is now 44, he has a considerable criminal record to the significance of which we shall come later.
16.	The Criminal Cases Review Commission referred the case to this Court because, following a complaint by the appellant's sister on 4th March 1997, the Commission obtained a large amount of material in relation to the complainant's medical history, in particular from her social services file and medical records. Not all of this had been sought by the defence or disclosed prior to the trial. The Criminal Cases Review Commission also obtained the County Court file in relation to the divorce of the complainant's parents which contained information in relation to, but no determination about, allegations by the complainant that she had been sexually abused by her brother and stepfather. In addition, the Criminal Cases Review Commission obtained the internal hospital investigation report and police file concerning an allegation by the complainant about a consensual sexual relationship she had had with a male nurse while she was detained in a mental hospital in 1997. There was no sufficient evidence to bring charges against the nurse.
17.	The Criminal Cases Review Commission also spoke to or communicated with a considerable number of people, including the lawyers who had acted for the appellant at trial, lawyers involved with the complainant at mental health tribunals, the complainant's mother, her social worker at the time of the alleged rape and the police surgeon who examined her on the night of that incident.
18.	The Criminal Cases Review Commission then obtained expert evidence on two matters. First, as to the likely date of conception for the ectopic pregnancy, they obtained a report, dated 6th May 1999, from Professor Walker, a Professor of Obstetrics and Gynaecology. He concluded, from the complainant's hormonal levels, that conception was likely to have occurred a few days after intercourse with the appellant on 27th December, though he could not exclude the possibility that conception had occurred on 27th December. This is potentially relevant to the basis on which the judge sentenced the appellant, as he referred to the ectopic pregnancy as an aggravating feature. We shall return later to the application for an extension of time to permit a challenge to sentence.
19.	Secondly, the Criminal Cases Review Commission obtained psychiatric reports on the complainant from Dr Marion Swan dated 4th December 1999 and, following her discovery of further clinical notes, 11th January 2000. She concluded that Dr Lough, a psychiatrist who had reported for the defence on 12th October 1994 that the complainant was not more likely than average to make up a false complaint of rape, might have reached a different conclusion had he had before him all the material before her. Dr Swan's conclusions as to the credibility of the complainant led to the reference to this Court. Subsequently, Dr Swan was involved in a serious accident which might have prevented her from giving evidence on this appeal. In consequence, the defence obtained further psychiatric reports from Professor Cordess dated 20th September 2001 and 14th March 2002 and the prosecution obtained reports from Professor Grubin dated 22nd January 2001 and 21st January 2002. This Court heard evidence from all three distinguished psychiatrists, de bene esse (see R v Sales [2000] 2 Cr App R 431, 438D).
20.	On behalf of the appellant, Mr Wetherby, who did not appear at trial, advanced three grounds on which it is said this Court should regard the appellant's conviction as unsafe. First, had the material now available about the complainant been available at trial, the conduct of the defence, in particular in cross-examining the complainant, might have been different and the jury's verdict different. Secondly, had the jury heard the evidence of Dr Cordess and Dr Swan they might have reached a different verdict. Thirdly, if neither of the first two grounds succeeds, this Court should entertain a lurking doubt about the safety of the conviction.
21.	It is convenient to consider first the second ground. It is common ground between Mr Wetherby and Mr Makepeace, who appears for the Crown, that the test we must apply to the admissibility of expert evidence in relation to credibility of the complainant is that set out by the House of Lords in Toohey v Metropolitan Police Commissioner 49 Cr App R(S) 148 and the Court of Appeal in R v MacKenney 76 Cr App R(S) 271. In Toohey at page 162, Lord Pearce said:
“Human evidence shares the frailties of those who give it. It is subject to many crosscurrents such as partiality, prejudice, self interest and, above all imagination and inaccuracy. Those are matters with which the jury, helped by cross examination and common sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of fifty yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than twenty yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise. It is obviously in the interest of justice that such evidence should be available.” 
22.	At 163 he went on:
“Medical evidence is admissible to show that a witness suffers from such disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to a general opinion of the unreliability of the witness, but may give all the matters necessary to show not only the foundation of and reasons for the diagnosis but also the extent to which the credibility of the witness is affected.” 
23.	In MacKenny at 276 Ackner LJ said:
“We agree with the learned judge that if a witness is suffering from a mental disability it may, in a proper case, well be permissible to call psychiatric evidence to show that the witnesses is incapable of giving reliable evidence. We are prepared to accept that the mental illness need not be such as to make the witness totally incapable of giving accurate evidence, but it must substantially affect the witness's capacity to give reliable evidence. But this is very different from calling psychiatric evidence with a view to warning a jury about a witness who is capable of giving reliable evidence, but who may well choose not to do so. If the witness is mentally capable of giving reliable evidence, it is for the jury, with all the warnings from counsel and the court which the law requires, to decide whether or not, that witness, is giving reliable evidence.” 
24.	In the present case, the first and crucial question is whether the evidence of Professor Cordess and Dr Swan which we heard would, if available at trial and heard by the trial judge on the voir dire, have been relevant to an issue and admissible as showing an abnormality of mind on the part of the complainant which substantially affected her capacity to give reliable evidence.
25.	The view expressed by Professor Cordess in his first report was that, from an early adolescence, the complainant suffered from a severe personality disorder and that she suffers from a borderline personality disorder. The clinical records and notes up to August 1999 cast some doubt upon the credibility of the complainant as a witness “during this highly disturbed period of her life” (though it is not clear to precisely which period he was referring as, in some periods, she has clearly not been highly disturbed). He added that “the fact of suffering from a severe borderline personality disorder with associated histrionic and dependent features does not by itself necessarily discredit a person's reliability in all matters”. “Sexual abuse in childhood and adolescence is likely to have a profound affect upon the perceptions and experience of later sexual relationships.” There is considerable evidence that the complainant was manipulative. His core conclusion, for present purposes, was, “I am sure the complainant should be considered as being capable of giving reliable evidence when she is relatively well, on mental or general subjects. It is more doubtful whether she is capable of doing so accurately when sexual matters are involved. There is evidence too that she has sometimes chosen not to give reliable accounts of events or of facts.” In his second report he said “I would not say that she is necessarily incapable of perceiving a sexual situation accurately and in terms of reporting it accurately... She may have been (and be) substantially impaired in her capacity to give reliable evidence in such matters.” 
26.	In the course of his evidence before us Professor Cordess was asked a number of questions by counsel and the Court about the complainant's credibility in relation to the only matter in issue at trial, namely her consent. (It will be recalled that the appellant's account of events was essentially the same as the complainant's in relation to his invitation to the flat, what they did when he got there and the sequence of events not only up to and including sexual intercourse but also thereafter in relation to the complainant retreating to the bathroom and the appellant telephoning for a taxi and leaving. All that was in issue was whether the complainant had repeatedly said “no” before sexual intercourse occurred.) It did not appear that prior to giving evidence, Professor Cordess had considered this specific aspect, namely that only consent was in issue. His answers were not entirely consistent. But he said her memory of what she said bearing on consent would not be affected by her disorder and “I'm not saying that if she said 'no' her reporting that fact later is open to question.” He was unaware when he made his reports that the complainant had complained of rape almost immediately afterwards to her mother and the police. He accepted that, as the appellant had described the same activity in the same order, the complainant had good perception of what had happened. He said that he was not saying that she had misperceived saying 'no'. He had no reason to think she was not recollecting this correctly. Her accounts appeared consistent throughout. He said his expertise derived from group data. There were problems in arguing about the individual case. He said that, in sexual encounters, the complainant was likely to be prone to misjudgments as to the motivations of others, but this was less likely as to, for example, whether or where she was touched. There was a substantial risk she would misinterpret and therefore misreport interactions during the sexual encounter, but he would give more credence to her account of repeatedly saying 'no'. There was a possible risk, which he was unable to quantify, that her account of saying 'no' might not be credible.
27.	Dr Swan, in her first report, concluded that the notes and records post-dating the trial raised serious doubts about the credibility of the complainant who had also demonstrated that she manipulated people. Her primary diagnosis was of personality disorder. If the allegations against the male nurse in 1997 were false, “the allegations against the perpetrator of the rape offence could not be relied on and her credibility may be considered suspect in any event.” Her enduring histrionic personality disorder had “a direct effect on her credibility when she makes accusations and also on her ability to give honest testimony”. In her second report, she referred to allegations made by the complainant of sexual abuse by her brother and stepfather, against a Greek boy in the summer of 1992 which the complainant described as “a rape attempt” and about her boyfriend in 1992. Dr Swan thought these incidents significant. The complainant had difficulty in coping with closeness in relationships with boys. Dr Swan concluded that the first notes also demonstrated “significant periods of low mood prior to the events of December 1993”. Her diagnosis of personality disorder was reinforced.
28.	In evidence, she said that the complainant's disorder would involve a failure of normal perception in relation to emotional rather than factual matters. The area of sexual encounters was particularly vulnerable to being misperceived. She was probably unreliable about some matters, not others. She was not reliable without corroboration. If there were corroboration Dr Swan would be prepared to believe her account of a sexual incident. Dr Swan accepted that she was not able to say whether the complainant's accounts about the Greek boy, or her boyfriend in 1992, were reliable or not. The complainant was probably not a reliable witness in December 1993 because of her disorder and the disturbance in her mental state shown by signs of recent attempted self-harm. The circumstances would raise “an index of concern”. The disorder in itself would not lead to doubt about her credibility. Dr Swan conceded in cross-examination that there was not enough material to form an opinion either way as to whether, in December 1993, the complainant was recently disturbed. (We interpose that the last pre-incident documentation available is a letter on 1st October 1993, describing the complainant as mentally well, well dressed and made up, studying full-time at college, taking no medication, maintaining contact with her GP and not needing hospital support. She had been discharged from hospital, apparently free from serious depression, on 12th August 1993).
29.	At the highest therefore, Dr Swan was saying that the complainant's abnormal perception related to emotional rather than factual matters and, if corroborated, her account of a sexual incident would be credible. There is also a difficulty in relation to Dr Swan's evidence as to the assumptions on which her conclusions were based. When asked what assumption she had made about the truthfulness of the Greek boy and the boyfriend she at first said she had made none. Then she said she had assumed they were false allegations “because there had been occasions on which her account had been untrue”. That, in our judgment, is simply untenable, first, because everyone involved with the complainant's case (including all the doctors who have given evidence before us) has proceeded on the basis that the complainant's allegations of sexual abuse against members of her family are probably true: indeed the occurrence of these events is said to be the major factor causing her personality disorder. Secondly, there is no evidence that the pre-trial allegations about the Greek boy or the complainant's boyfriend were untrue. Thirdly, there is no evidence that the complainant's post trial allegation against the nurse was untrue: in any event, that allegation, made, as the Criminal Cases Review Commission pointed out, at a time when the complainant may have been suffering from post traumatic stress disorder brought on by the incident involving the appellant, contained no claim of coercion - the sexual relationship was said to be consensual. It is also to be noted that there was, at trial, slight corroboration that the complainant refused consent to the appellant both in the medical evidence, suggestive of force to her private parts, and in what the appellant said to Mr Dawson afterwards in the public house. Dr Swan's conclusions and her consequential assessment of Dr Lough's view are therefore fatally undermined.
30.	In our judgment, the evidence of Professor Cordess and Dr Swan, leaving aside any question as to its probative force and its potential impact on the jury's decision if they had heard it, did not reach the legal threshold of admissibility, ie neither witness gave evidence tending to show that, by reason of mental disability, the complainant was incapable of giving reliable evidence, or that her capacity to give reliable evidence was substantially impaired on the one matter in dispute, namely consent. Mr Wetherby accepted that it is for this Court to decide if the admissibility threshold is crossed. We reject his further submission that honing down of credibility to the issue of consent is a matter only for the jury: it is, in our view, crucial to admissibility in the first instance. That being so, the second ground fails.
31.	As to the first ground, voluminous though the material now is (albeit much of it post-dates December 1993 and some of it post-dates the trial) and regrettable though it is that full disclosure of such of it as was in existence at the time was not made prior to the trial, we are wholly unpersuaded that there is anything in it which could or would have affected the way in which the defence was conducted. Mr Wetherby, properly, makes no complaint about the conduct of defence counsel: none could be made. He submits that the judge's question of the jury, in summing-up, as to whether the complainant might have had “some strange trait” which led her to lock herself in the bathroom after the incident, points to the path which the defence might have followed in the light of the additional material. There are several difficulties with this. First, at trial the defence had the nursing notes for 1992 and 1993 and the description of self-harm marks in the police surgeons report; and the jury knew the complainant had a troubled mental history, suffered from manic depression “and had been to hospital for that more than once” (summing-up page 20B). Secondly, almost all the documentary material now relied upon by the appellant had been seen by Dr Lough, though he had not seen the psychologist's notes about the relationship with the boyfriend and the Greek boy in 1992. Even if cross-examination about those matters would have been permissible (which we very much doubt) the complainant's answers would have been final. The defence did not have the letter written by the complainant, while sectioned, on 8th July 1993; but we can think of no useful purpose to which it could have been put by the defence if it had been available. Thirdly, we think it inconceivable that, if the defence had had available the complainant's self assessment form, in December 1992, in which she referred to her anxieties, this would have been used in cross-examination: it would have tended to underline her reluctance to consent to sexual intercourse with the appellant. Fourthly, suggestions based on her difficulty of perception (based on the psychiatric evidence) would have been pointless in relation to events, other than consent, which were not in issue. Fifthly, further exploration of her medical history with a view to challenging her credibility on consent would have been unwise and, indeed, extremely dangerous, as the appellant had numerous convictions for dishonesty and two comparatively recent convictions for violence. The first ground therefore fails.
32.	As to the third ground, we have no lurking doubt as to the safety of this conviction. The jury heard the accounts of the complainant, for which there was some, albeit slight, corroboration, and of the defendant. They believed the complainant. They were entitled to do so. There is no reason to regard the appellant's conviction as unsafe. His appeal against conviction is dismissed. 
33.	As to sentence it is possible, in the light of Professor Walker's report, that the judge's reliance on the ectopic pregnancy was misplaced. Whether, in consequence, the sentence of 6 years was manifestly excessive we doubt. A sentence in excess of 5 years was probably called for in the light of the marked disparity between the parties in age and build. But we see no reason in this case (and Mr Wetherby suggested none) why we should, in considering whether to grant an extension of time of over 6 years, approach the matter in any different way from that which this Court adopts in relation to belated attempts to appeal against conviction following a change in the law (see Kansal No 2 [2002] 2 Cr App R 610 611, paragraph 74) ie it is in the public interest that there be finality in litigation and this Court's limited resources be concentrated on determining appeals in relation to more recent cases. Accordingly we refuse an extension of time and, therefore, leave to appeal against sentence.