Case No: 201204412 C4
Neutral Citation Number: [2013] EWCA Crim 2329
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Warwick Crown Court
His Honour Judge Parker
T20117119
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/12/2013
Before :

LORD JUSTICE FULFORD
MRS JUSTICE COX DBE
and
HIS HONOUR JUDGE WAIT
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Between :

	Regina		
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	Frank Paul Timothy Swinbourne		

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Mr Tom Schofield (instructed by Whiting and Purches Solicitors) for the Appellant
Mr Peter Cooke (instructed by the Crown Prosecution Service) for the Respondent

Hearing date: 24 October 2013
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Judgment
Lord Justice Fulford : 
Introduction
1.	The appellant was charged with four counts of rape contrary to the Sexual Offences Act 2003. On 9 January 2012 at the Warwick Crown Court he was found by H.H. Judge Coates to be unfit to be tried, pursuant to section 4(5) Criminal Procedure (Insanity) Act 1964. Thereafter, on 12 July 2012 before H.H. Judge Parker and a jury the appellant was found to have done the acts charged against him as regards two of the allegations of rape (counts 1 and 3) by a majority of 10 to 2. 
2.	On 2 August 2012, the appellant was made the subject of a hospital order (to be detained at Brooklands Hospital, Birmingham). 
3.	He appeals against the finding that he did the act in counts 1 and 3 with the leave of the Full Court, which was restricted to two grounds of appeal: first, that the judge erred in admitting the appellant’s police interview in evidence and, second, the jury’s decision is vitiated by the failure of the judge to give the jury a Lucas direction as regards a lie the appellant told in the course of his interview with the police.
4.	The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences and no matter relating to the complainant shall be included in any publication during her lifetime if it is likely to lead members of the public to identify her as the victim of these offences. This prohibition will remain in force unless waived or lifted in accordance with section 3 of the Act. 
The Facts

5.	The appellant, who is aged 50, has severe learning difficulties and the complainant, “F”, who was aged 41 at the time of these events, has a mild learning disability. F attended various centres that assist individuals with learning difficulties where she met the appellant’s partner, Dawn Murphy. In due course, she met the appellant through Ms Murphy. F lived with her partner, “G”.
6.	F alleged that the appellant raped her (anally and vaginally) at her home four times during the course of three days in early October 2010. She said that this happened about a month before the death of Dawn Murphy on 1 November 2010. On each occasion the appellant forced his way into her flat. As regards the events constituting the first occasion (counts 1 and 3), her account was that when the appellant arrived he said he was waiting for someone. The appellant went into the kitchen to make a drink and the appellant dragged her out; he told her to put on a nightdress; he took her into the bathroom, and he bent her over the bath and anally raped her. He then took the complainant into the bedroom, where she was vaginally raped. 
7.	There were two other occasions, in relation to which the appellant was acquitted, when the complainant alleged he anally and vaginally raped her (counts 2 and 4). F said that she informed G about what had happened (although she said he had forgotten what she said) and she also told her “advocacy worker”, JD. However, she indicated that she delayed reporting the rapes because the appellant warned her not to speak about what had occurred and she was frightened. She denied the suggestion that Murphy had worn the nightdress. 
8.	On 22 November 2010, the complainant’s advocacy worker noticed that the complainant became very upset and agitated when the appellant’s name was mentioned. In the resulting conversation, F began to reveal that the appellant had behaved in a sexually inappropriate manner. Following that conversation, on 25 November 2010 these allegations were brought to the attention of the police. The appellant was arrested and interviewed on 31 December 2010. A solicitor represented him and an appropriate adult was present. In the course of the interviews he denied he had engaged in any sexual acts with the complainant and he denied he had been in her bedroom. 
9.	On 10 January 2011 the police were given the nightdress F said the appellant had forced her to wear when raping her. It was forensically examined and semen was found on the front and the rear of the garment. However, a DNA profile was recovered from the rear of the item alone, and this matched the appellant. It was suggested that this finding provided strong support for the proposition that the appellant had had vaginal and anal sexual intercourse with the complainant.
10.	The appellant, having been found unfit to plead, did not give evidence and no evidence was called on his behalf. 
11.	The prosecution case was that F had provided a truthful account of the appellant having had anal and vaginal intercourse with her on four occasions without her consent, and the Crown relied on the forensic evidence that supported her account that intercourse had occurred. 
12.	The defence case was that the complainant had invented the allegations so as to take revenge on the appellant for something else entirely. In this regard it is to be noted that F agreed that she had fallen out with the appellant. She agreed the appellant had reported her to the police when he believed she had threatened to arrange for him to be beaten up. F rejected the suggestion that she had alleged that the appellant had killed Dawn Murphy, although one of the agreed facts was to the effect that F’s advocacy worker was aware that F had made this latter accusation (it was characterised as a “wild allegation”).  Additionally, the jury were told that in October 1998 F had alleged that her partner, G, had raped her and a doctor had assessed that her shrewdness and cunning made up for her intellectual clout.
The Interview

13.	At trial, the prosecution sought to rely on the appellant’s denial in interview that he had had sexual intercourse with F. The Crown suggested that there was no basis for concluding that appellant was unaware whether or not he had had sexual intercourse with a particular woman. The prosecution argued that the appellant’s answers in interview on this issue were unambiguous, and his denial would assist the jury understand the matters in issue. The defence submitted that since it was inappropriate for the defendant to give evidence, it was wrong for any of his responses in interview to be put before the jury. It was contended that what an individual under a disability said in interview was only relevant to his intention and it could not provide evidence of the actus reus of the offence. It was suggested that there were many reasons why the appellant may have falsely denied having had sex with the complainant, and it is stressed it is possible the appellant did not understand the questions put him that related to the DNA results. 
The Ruling

14.	The judge ruled that a suitably edited version of the interview was admissible, and he took account of the fact that the appellant had been represented by a solicitor and had been accompanied by an appropriate adult, along with the lack of any breach of the codes of practice. The judge observed that the prosecution sought to establish a single factor from the interview that did not relate to the appellant’s intention, namely his denial that sexual intercourse had occurred. The judge concluded that this was directly relevant to the facts that were appropriate for the jury to consider. 
15.	The extract from the interview that went before the jury as part of the first of two documents entitled “Agreed Facts” was as follows:
Frank Swinbourne was arrested on 31st December 2010. He was interviewed by the Police that day, represented by a solicitor and an appropriate adult, and denied that he had engaged in any sexual acts with [F].

The Grounds of Appeal

16.	It is contended that the judge erred in admitting the contents of the appellant’s interview because “the general practice” is that a defendant who is found to be unfit to plead ought not to give evidence on the trial of whether he did the act because his account is likely to be inherently unreliable. On the basis of this suggested general principle, it is argued it would be irrational to permit the prosecution to admit his comments in interview, because they are likely to be equally lacking in probative value. As a demonstration of the correctness of this approach, the court is invited to consider the appellant’s apparent inability to understand the questions about DNA put to him in interview.
17.	Having wrongly admitted – as it is suggested – the appellant’s denial in interview that sexual contact had taken place, it is argued the appellant was deprived of his only defence because:
“[t]he finding of the Appellant’s semen on the rear of the Complainant’s nightie, must surely have been for the jury, near definitive evidence that the Complainant and the Appellant had had sex. If so, the only issue that remained was whether or not she consented to the sex. In allowing the Prosecution to adduce the interview denial of any sexual relations […] set ‘the battle lines’, the learned Judge significantly undermined any suggestion of consent (notwithstanding the fact that he technically left the issue open for the jury to decide […]). ”
18.	Finally, it is observed that given the appellant had been judged unfit to plead and “was not able to go into the witness box” he was unable to give evidence in order to confirm, clarify or resile from what he said in interview, or to put what he said in context. Counsel sets out a range of possible defences that the appellant could have advanced: 
“he might have explained why he said he had never had sex with the complainant and yet his semen was on her nightie;
he might have admitted that what he said was a lie;
he might have claimed that the nightie belonged to his partner and the complainant had taken it”. 
19.	Central to the appellant’s contention that “in proceedings under s.4A(2) […] the accused does not give evidence” is a short passage in the speech of Lord Hutton in the decision of the House of Lords in R v Antoine [2001] 1 AC 340, a case which concerned the availability of the defence of diminished responsibility for an accused who had been found to be under a disability and whether the jury, at the hearing under section 4A(2) are concerned with any mental element. Lord Hutton referred to the case of R v Egan (Michael) [1998] 1 Cr App R 121. In that case, even though the appellant was found unfit to plead, he was permitted to give evidence during the section 4A(2) proceeding on the issue of whether he had done the act charged against him (the offence was taking a handbag). The Court of Appeal in Egan summarised the course of his evidence as follows:
“Thereafter his evidence, if it can be so characterised at all, consisted essentially of shaking of the head, gesticulating or giving no intelligible answer to any further questions put to him.”
20.	It was in the context of the marked circumstances of that case that Lord Hutton observed:
“In my opinion, after a finding that the defendant is unfit to plead because of a mental instability the judge and counsel should always give careful consideration to whether it is right that the defendant should be called to give evidence on the hearing under section 4A(2).”
21.	In R v B [2012] EWCA Crim 1799, the appellant was charged with having sexually assaulted a girl under the age of 13. He had a significant degree of learning disability. The expert evidence was to the effect that he was unable to understand the indictment; he could not comprehend the details of the evidence or follow the court proceedings; he did not have the ability to understand that he was able to challenge jurors, or instruct his lawyers or give evidence in his own defence. However, in his interview with the police, B was asked if he had sexually assaulted the victim and he accepted that he had asked her to undress and he had assaulted her. The judge admitted the interview, notwithstanding the finding that the appellant was unfit to plead, on the basis that the interview was carefully and properly conducted and B was represented by a solicitor and a social worker. 
22.	On the basis of those facts, the Court of Appeal determined as follows:
“13. The conclusion reached by the learned judge has this logical difficulty: the evidence from the psychiatric reports is clear that the appellant's condition at the time of the interview was, essentially, the same as at the time when the judge decided he was unfit to plead. Secondly, it is apparent from the psychiatric evidence that he was unfit to plead in each of the ways in which we have set out; the judge appears to have accepted that conclusion in his ruling of unfitness to plead. It is, therefore, very difficult to understand how the judge, having made that finding, could have found that the person concerned would understand the caution and have sufficient understanding to be interviewed. Of course, there could be cases where the state of the defendant's condition had changed, but that is not this case.
14. It is, therefore, impossible, in our judgment, to understand how the interview could have been admitted in this case, in the light of the findings the judge made himself in relation to unfitness to plead.”
23.	The appellant submits that the approach in R v B applies equally in this case, in that there was no proper basis for a conclusion that the appellant understood the significance and meaning of the caution or that he was able to comprehend the questions that led up to his statement that sexual relations had not occurred. 
24.	The full record of the interview (which was not before the trial judge) reveals, as the prosecution has accepted on this appeal, that there is a real risk that the appellant failed to understand the caution. On three consecutive occasions when the officer conducting the interview explained the caution to the appellant, his response was that he was obliged to answer the questions that were put to him by the interviewers. When he finally indicated he understood that he did not have to answer questions, he then observed that he did not understand why the jury might “wonder” why he had declined to answer questions in interview. 
25.	There is no doubt in our judgment that the contents of this interview – including the short extract set out in the agreed facts – should not have gone before the jury, given the appellant’s mental impairment resulted, in all likelihood, in a failure on his part to understand the real significance of the caution. As in R v B the finding that the accused was unfit to plead raised the real possibility that he did not comprehend the caution or have sufficient understanding to be interviewed. Before admitting interview evidence in circumstances such as these, the court will usually need to be persuaded by expert evidence that notwithstanding the finding of unfitness, the defendant understood the caution and generally it was safe to interview him. The same considerations would apply to those rare occasions when it is suggested a defendant should give evidence on the trial of the facts. 
26.	The question as regards this ground of appeal is whether the jury’s findings of fact on counts 1 and 3 are safe, notwithstanding the wrongful admission of this evidence. It is apparent that the appellant’s case was that he had never had sexual relations with F. Very early in the interview, prior to any questions about DNA, the appellant responded to a question as to whether he had ever had sex with F by saying “no, none at all […] no, and that is the God honest truth, its no”. This absolute denial that sexual relations had occurred is reflected in the account that the appellant appeared to give to Drs Boer, Kenney-Herbert and Wilcox. Under the Criminal Procedure Rules the court has the obligation as part of its case-management function to identify early the real issues in the case (rule 3.2), and independently of this extract from the interview, the judge would have been entirely justified in asking defence counsel to clarify the basis on which F’s evidence was challenged.  If the defendant is capable of giving coherent instructions that are not suggested, on a credible basis, to be unreliable, defence counsel should present the case in accordance with those instructions rather than investigate potential or speculative defences, particularly if they are inconsistent with the accused’s instructions. The appellant’s clear position that no sexual relations had occurred was wholly inconsistent with the suggestion that F had consented to intercourse. In some cases the disability may be sufficiently great that counsel has no reliable instructions and accordingly can do no more than test the evidence, but there is no suggestion that this case comes within that category. Notwithstanding his undoubted disability, this appellant appears to have given – from the outset – a clear response to the straightforward question as to whether sexual relations had ever taken place. Therefore, although this appellant has been described as a volatile individual who contradicts himself, is sometimes implausible and engages in fantasies, it has not otherwise been asserted that this assertion was rendered unreliable because of his disability. In our judgment, the short extract that the jury heard of the interview amounted, in reality, to no more than a clear indication by the appellant as to the nature of the basis on which he was challenging F’s evidence. Indeed, his case was advanced on the footing that the complainant had invented the incidents in order to take revenge on him. 
27.	We reject, therefore, the suggestion that the appellant was denied the opportunity of running other defences. Given his apparent ability to give clear instructions on this straightforward central issue, the appellant was not entitled to advance alternative and contradictory defences. Since F’s account was challenged and she was required to give evidence before the jury, the extract from the interview did not add to the information to which the jury were in any event entitled, namely the basis on which it was suggested F’s evidence was said to be incorrect.  
28.	Finally, it is argued that the judge should have given the jury a direction on the approach they should adopt to the possibility that the appellant lied in interview when he said there had been no sexual relations, following the decision in R v Lucas [1981] 73 Cr App R 159, when the Lord Chief Justice observed:
“The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.”
29.	The prosecution submits that the question of whether there had been sexual contact was central to the issues in the case and that his denial of any such contact would only have become relevant in considering the mental element of the offence once the jury were in any event sure there had been sexual contact. Accordingly, it is argued there was, in reality, no prejudice to the appellant. In our judgment, the statement by the defendant that sexual relations had not taken place did not relate to the mental ingredients of the offence, which are not usually considered by the jury in these circumstances (although there are clear exceptions to this principle: see, Antoine (above); R v Grant [2002] QB 1030; R (Young) v Central Criminal Court [2002] 2 Cr App R 178).
30.	We accept that if an interview under caution with a defendant who has been found to be unfit to plead is introduced during the trial of the issue, either by way of extracts or in its entirety, it is likely that the judge will need to give the jury a specially crafted direction warning them of the need for particular care, given the risk that what he said in interview may be the result of his disability rather than because he was lying or otherwise attempting to mislead the police. And as we have already observed, the court will usually need to have been persuaded by expert evidence that notwithstanding the finding of unfitness, the defendant understood the caution and generally it was safe to interview him. Accordingly, given this will often concern the question as to whether the defendant (who is under a disability) provided a reliable account in interview, a direction that is broader than or different from the conventional Lucas direction will be required, tailored to the circumstances of the case. 
31.	The appellant correctly observes that the judge did not refer to the extract from the interview during the summing up. However, for the reasons we have already set out, since the defendant had required F to give evidence in order to challenge her account, as an exercise of case management it would have been incumbent on the judge to explore with counsel the basis on which her evidence was disputed so that the jury were able to understand the central issue or issues in the trial. Therefore, the jury were entitled to know that F’s evidence was challenged on the ground that the appellant asserted that sexual intercourse had not taken place and it follows that the absence of a direction to the jury in these particular circumstances does not render the decision of the jury unsafe.
32.	For these reasons, this appeal against conviction is dismissed.