Neutral Citation Number: [2017] EWCA Crim 1627
No: 201605202 C1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 10 October 2017
 
B e f o r e:

LADY JUSTICE HALLETT DBE
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) 

MR JUSTICE TURNER 

MRS JUSTICE MCGOWAN DBE 
 
R E G I N A 
v 
LUKE FISHER 
 
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If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 
 
Mr B Gilbert appeared on behalf of the Applicant 

Mr A Howarth appeared on behalf of the Crown 
 
J U D G M E N T 
(Approved) 

 
1.	LADY JUSTICE HALLETT:   
Background 
2.	The Registrar has referred this application for leave to appeal against conviction.  The applicant was convicted of an offence of rape on 28 October 2016 in the Nottingham Crown Court.  There is one ground of appeal: that the Recorder, Recorder S Evans, refused to allow the complainant to be recalled to be asked questions about her pre‑trial conversation with the prosecution advocate.
3.	The provisions of the Sexual Offences (Amendment) Act 1992 apply to this appeal and therefore reporting restrictions are in place.
Prosecution case 
4.	The complainant met the applicant in December 2014.  They had consensual sexual intercourse on one occasion at his flat.  On Sunday 4 January 2015, the applicant rang the complainant in the afternoon and persuaded her to visit him at his flat again.  She sent a text message agreeing but stated "No sex though".  At the flat they smoked some cannabis and starting kissing.  The applicant became forceful and despite her telling him to stop, he pulled her trousers down, forced himself upon her and ejaculated inside her vagina.  She later sent him a text message asking why he had not stopped when she said no, to which he responded with messages professing ignorance of what she was saying.  She reported the allegation to her support worker the next day and the police were contacted.  
The defence case 
5.	The applicant insisted that the complainant's account was untrue. Although she had initially said there would be no sex that night, she changed her mind and enthusiastically engaged in sexual intercourse. Thereafter she must have regretted her actions and she took the opportunity of making a false accusation to gain sympathy.  
Proceedings relating to the complainant's sexual history 
6.	In her unedited ABE interview the complainant referred to her sexual relationship with her boyfriend, whom we shall call D, and also to sexual intercourse with an ex‑boyfriend, whom we shall call R, on Thursday, 1 January 2015.  
7.	Mr Gilbert, counsel at trial, made a pre‑trial application pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999 to question the complainant about her sexual history with D and with R.  Mr Andrew Howarth, for the prosecution, went to speak to the complainant in accordance with the Crown Prosecution Service Protocol: Speaking to Witnesses at Court.  He had with him, as the protocol requires, a representative of the Crown Prosecution Service and he completed a template designed "to record the conversation with the witness".  He has tried to contact the CPS representative who was with him to see whether that representative took a note but no answer has been forthcoming.  
8.	According to Mr Howarth's template, the witness did not say anything during their conversation that needed to be disclosed.  He told her that the general nature of the defence was likely to be consent. He informed her that some third party material relating to her had been disclosed to the defence, including some social services files and school records but they were unlikely to feature in the trial.  He also alerted her to the fact she was likely to be asked questions about having sexual intercourse with the applicant on a previous occasion with consent.  He warned her, however, that the defence was making an application to adduce evidence of her sexual relationship with R but that application had not yet been considered.  
9.	Thereafter the application was refused and the complainant's ABE interview was edited to remove any reference to her sexual history.  Mr Howarth returned to see the witness.  Unfortunately, on this occasion there was no note of what he said and there was no CPS representative with him.  Mr Howarth has conceded this morning that, with the benefit of hindsight, he was wrong to go alone to see her and for there to be no note of the second conversation however short. His recollection is that he told her that she would not be asked questions about her sexual relationship with R because the judge had ruled the questions inadmissible.
10.	The trial then started.  When Mr Gilbert was cross‑examining the complainant about what she had been doing during the week before the incident between Tuesday and Sunday she volunteered the following:

"I saw [R] on Thursday, the guy I was seeing, but nothing ever happened, just talking and met up, but nothing serious went on.  [R] was an ex‑boyfriend but not sexually, never even kissed.  We were just meeting."
11.	This was directly contrary to the information she had provided during her ABE interview. In the light of that answer, Mr Gilbert applied for permission to adduce in evidence the part of the ABE interview where she told the police that she had had sexual intercourse with R on the Thursday and to ask the complainant about what she had said.  
12.	The Recorder granted the application and the inconsistencies were put to her.  Initially, the complainant denied that she had told the police about having sexual intercourse with R on the Thursday before the alleged rape. Later, she accepted that she had said it, but it was not true; there had been no sex with R at all.  The complainant was allowed to leave court. 
13.	The next day, Mr Gilbert made an application to the Recorder that the jury should be told about the conversation between Mr Howarth and the complainant and that she should be recalled for him to put the conversation to her. He asserted that the complainant had deliberately lied on oath about having sexual intercourse with R believing that he would not be able to cross examine her on the subject following the judge's ruling.  He wished to ask her whether she had felt free to "lie" about her relationship with R in the light of the conversation with prosecuting counsel.  
14.	The Recorder refused both applications on the basis they were unnecessary and inappropriate. He concluded that to allow the jury to be told about the Speaking to Witnesses protocol would be to invite speculation as to the part played by the conversation with prosecuting counsel in the witness’s inconsistent accounts.  He had allowed the defence to ask her about the edited parts of the ABE interview and the so‑called lie.  She had answered those questions and the defence could comment upon what she had said.  To recall her would involve significant delay and would not be proportionate.
Application for leave to appeal
15.	The ground of appeal is that the conviction is unsafe because the defence was denied the opportunity to introduce the fact of the protocol conversation into evidence or explore with the witness the content of the conversation and its effect upon her.  Mr Gilbert, in his succinct submissions this morning, took us through the terms of the protocol and although he intended no personal criticism of Mr Howarth, he invited us to note the breaches on the second visit as conceded by Mr Howarth. The credibility of the complainant was the central and crucial issue in the case; she ‘escaped’ examination by the defence on what Mr Gilbert described as a potentially highly relevant and significant issue.  The relevance is said to lie in there being no explanation for the complainant's having volunteered that nothing sexual had occurred with R on the Thursday, other than that she had been informed by prosecuting counsel that this was an issue on which she could not be questioned.  Had the jury been told the whole story, including the protocol procedure, the jury may well have concluded that the complainant was prepared to lie because she thought she was immune from questioning and this would have undermined her credibility to a significant extent.  
Conclusions 
16.	First, we do not understand why a section 41 application was made.  We pressed Mr Gilbert for an explanation and none was forthcoming.  As this court has made clear on a number of occasions, when making a section 41 application to cross examine a complainant about her sexual history, the defence faces a high hurdle in establishing relevance and admissibility.  In this case, if the issue the defence wished to explore was the complainant’s wish to rekindle her relationship with her ex‑boyfriend (and therefore she felt guilty about her sexual relationship with the applicant) that could have been done without exploring her sexual history.
17.	Second, it is unfortunate that there was not full compliance with the protocol on the second visit.  Mr Howarth had followed the protocol fully on the first visit, but in the heat of the moment, he returned to see the complainant without the required witness to the conversation and a note taken of what was said. The protocol was very carefully drafted, after consultation, with the intention of ensuring that there could be no question of impropriety or unduly influencing a witness or the perception of impropriety or undue influence.  Having said that, we unreservedly accept Mr Howarth’s assurances (as did Mr Gilbert) that nothing untoward did occur.  The breaches of the protocol have not therefore impacted upon the fairness of the trial in any way. We do observe, however, that it would have been better if Mr Howarth had simply informed the witness the application to ask her questions about her sexual history had been refused and so no questions could be asked about it, unless another application was made and the judge agreed.  He could not guarantee that a further application would not be made if things changed.  
18.	Third, we note that although the Recorder refused to allow questions about the protocol procedure, he did allow the defence to admit into evidence the edited part of the ABE interview and to cross‑examine the complainant about her previous inconsistent statement.  The defence had what they needed to advance their argument that the complainant was prepared to lie and prepared to lie about a sexual matter.  In our view, her motivation for doing so had marginal, if any, relevance.  Arguably, had the jury known about the protocol conversation between Mr Howarth and the complainant, it might have weakened the defence argument.  
19.	Mr Howarth conceded that the Recorder, having ruled the edited part of the interview admissible, would have been entitled to allow an admission into evidence to cover the conversation between prosecuting counsel and the complainant.  It would not have offended section 41 or any other principle of law.  However, as the Recorder observed, to do so may have led to speculation as to the impact of the conversation on the complainant. It would have been wrong to invite speculation without giving the complainant the opportunity to deal with the issue and it would have been wrong at that late stage to recall the complainant, so that the defence could embark on yet more cross‑examination on what was on any view a peripheral issue.  The complainant had given her explanation for the inconsistencies and the jury were in a position to assess her explanation.  Accordingly, it was not appropriate, proportionate or necessary to recall her.
20.	Finally, we have considered the impact of the Recorder's rulings on the overall safety of the conviction.  In our judgment, it is not even arguable that the matters relied upon by Mr Gilbert render the conviction unsafe. In those circumstances, leave to appeal must be refused.

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