Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LADY JUSTICE HALLETT
MR JUSTICE SILBER
MR JUSTICE TUGENDHAT
R E G I N A
-v-
WARREN BLACKWELL
Computer Aided Transcript of the Stenograph Notes of
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MISS A JOHNSTON appeared on behalf of the APPELLANT
MR D FARRELL QC appeared on behalf of the CROWN
J U D G M E N T
MR JUSTICE TUGENDHAT: On 7th October 1999, in the Crown Court at Northampton before His Honour Judge Wilson Mellor QC (sitting as a deputy circuit judge) and a jury, the appellant was convicted by a majority verdict of indecent assault on a female. Today he appeals against his conviction on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995.
Mr Farrell, who appeared for the Crown at the trial and appears for the respondent today, does not oppose the appeal on the first of the grounds advanced and referred by the Commission. On the contrary, the Crown invite the court to conclude that the conviction is unsafe for reasons set out in the report of the Commission. We can say at once that the appeal will be allowed on this basis.
The appellant was by the judge to three years' imprisonment and, having been convicted of a sexual offence to which part 1 of the Sexual Offenders Act 1997 applied, he was required to comply with the provisions of section 2 of that Act, namely notification to the police for an indefinite period.
On 22nd March 2001, on a reference by the Attorney General, the full court increased the appellant's sentence from three years to five years' imprisonment. On the same date the full court refused the applicant's renewed application for leave to appeal against his conviction. This appeal against conviction was based on submissions which have little bearing on the appeal before us. The grounds now advanced were not advanced then.
The assault allegedly occurred in the early hours of 1st January 1999. Following the appellant's conviction, the complainant made a number of allegations of sexual assaults in other circumstances on other occasions, some of which include allegations strikingly similar to those made by her in the present case.
The reference by the Commission is on two bases. The first basis is:
"There is new evidence available which gives rise to a very real doubt that [the complainant] was the victim of an assault by another person. [The complainant] had previous convictions for dishonesty. She has made other allegations, including allegations of sexual assault, to the police which, when investigated, were considered to be false. [The complainant] has a demonstrable propensity and ability to lie. There is material contained in her medical and psychiatric history which indicates that her evidence might not be credible or reliable and suggests that she had a propensity to self-harm."
As set out in the grounds of appeal before us, the point is expressed as follows:
"There is evidence that was not adduced at trial that, when considered as a whole, provides a strong case to support the conclusion that [the complainant] was NOT the victim of any assault and that her injuries were self-inflicted."
We shall refer to that as ground 1 of the appeal.
The second basis of the reference by the Commission is not accepted by the Crown. It is as follows:
"The Crown failed to disclose to the defence evidence which could have undermined the prosecution case, namely evidence of [the complainant]'s previous convictions and relevant parts of her medical and psychiatric history."
The Crown's case on this ground is that, on the information in the Crown's possession at the time, the possibility of the alleged assault not having occurred at all was fanciful.
In the light of the Crown's concession on the first ground and having carefully considered all the papers in the case, as we have, we do not think it necessary to address the second ground of appeal in this judgment. That is a course to which Mr Farrell and Miss Johnson for the appellant have agreed.
Counsel has drafted grounds of appeal referring not only to those two grounds, but also to additional grounds in respect of which leave was sought. Again, in view of the Crown's stance on the first ground, counsel for the appellant does not pursue the additional grounds before us.
The brief facts can be stated as follows. On New Year's Eve 1998 the complainant and the appellant attended the same party at a social club in a village. During the evening they were introduced and played a game of pool against each other. At about 12.50 am the complainant went outside for some fresh air. So much is undisputed.
At the trial the Crown case was that at that point the complainant heard a male speak to her but did not turn round. She said he then grabbed her from behind and forced her to a grass area, where she was repeatedly punched and indecently assaulted and lost consciousness. All of that was undisputed at the trial. The Crown now accept that there are serious grounds for doubting the truth of it.
There is no doubt that the complainant was soon found outside the pub and was surrounded by people. She stated in her evidence that she heard a voice telling the crowd to move away and give her some air, and she said that she recognised this as the voice of her attacker. She subsequently identified the appellant as the attacker. The issue at the trial was one of identification only.
There is no need to recite the full details of the case, but the nature of the issues appear from the summing-up. We shall refer to the following passages. On page 7 the judge said:
"There is no question at all that [the complainant] was indecently assaulted in a gross and vicious manner."
On page 8 the judge said:
"Identification: this is at the heart of this case, is it not? This is a trial in which the case against the defendant depends wholly or, at any rate, to a very large extent on the correctness of the identification of him which the defence say is mistaken."
The judge said this to the jury because there was no forensic evidence in the case. There was no forensic evidence linking the complainant with the appellant and none which corroborated her evidence that she had been attacked by any man. Later in his summing-up, the judge again stressed what the issue was. He said at page 25:
"... you are concerned, first of all, with veracity and then, of course, with reliability, remembering that she had had, as you have been rightly told, an appalling experience."
The judge then gave directions at this point in his summing-up on identification. Those directions were the subject of the unsuccessful attack which was launched in the attempted appeal against conviction in March 2001. This court held that the directions were adequate. At page 14 of the summing-up, the judge said this:
"But her evidence is central. Times, places, distances and so forth are completely meaningless without reference to [the complainant]'s evidence. She is the person whose evidence you have to assess. Without it there is no case at all. Only if the evidence of [the complainant] is sufficiently cogent for you to rely upon will you consider whether this is a case which [the appellant] is required to answer."
On the following page in the summing-up he set out the complainant's history in this extremely short passage:
"You have heard of her history. She had apparently an unhappy marriage, I think to a violent man called Andrew and she had been treated brutally before. She had been living in a relationship with [he identifies a witness] for some time, living near [a town near the village]."
The judge then set out the complainant's evidence, undisputed as it was, as to the assault. In doing so, he makes some observations which suggest reasons to wonder at her account. He said this at pages 17 to 20:
"Then she described what happened. 'Happy New Year', a man's voice. She heard the same voice, came up and spoke to her. She realised she had seen him earlier when she saw him. He told her she was making a mistake. 'You don't know what you're doing' and he refers to his marriage going wrong. There has been a comment, I think, that the defendant is not married to [a lady identified]. She said he came closer. She felt a metallic object against her left thigh. He then grabbed her by the shoulder, she was petrified and he took her away."
The judge makes this comment:
"It is a surprising fact in this case that neither counsel asked that woman a single question about the way she was taken."
The summing-up then continues:
"In one of the recorded accounts of the matter, she refers to a 30-yard alley and a Land Rover, you remember. [Counsel], not surprisingly, said it would be incredible if this man so well known in the village or any man from the dance hall took a woman at knife point down the public road for 200 yards. If a 30-yard alley is referred to, you may look at the map. There is no evidence about the possibilities. But there is a drive on the left of the club which appears to give on to the club car park. We have seen the crossover in the photographs. We do not know what the lighting was like in the car park. It appears - it is for you to judge - that the car park gives onto that dark path running beside the stream, we can see the stream, down towards Pool Street. If a man was going to abduct somebody at knife point it might seem an almost inevitable inference that he would use a place like that rather than the public street, but it is a matter for you. She does not say either way except that it was an alley that she was taken down. Why anyone should take her to the end of the green at the end of Pool Street may be difficult to understand, but that appears to be the position - to the side of a blank wall beside Pool House, 42 yards from the nearest street light on the other side which you have seen from the photographs.
She was gripped, she says, by the left upper arm and you see the bruises consistent with gripping in the photographs of her arm. She does not refer to any conversation on the way of what was said. No doubt the man felt her fear and might have enjoyed it. When they got where they arrived he then, she says, touched her breast and tried to kiss her. She did not respond and he was angered. He then punched her in the face, not hard enough to knock her down. To bring her to heel no doubt. He then pushed her down, sat on her legs and put something cold and metallic, she thought, on her stomach. Her trousers were pulled down or taken down and then a very unpleasant assault occurred because something was pushed into her private parts which was extremely painful. On the evidence of the medical people, she had scratches on the inside of both thighs and lacerations on her private parts. She thought that she felt his penis enter her and, on reflection, later she believed it must have been his hand. Which hand is not clear on her evidence but it was extremely painful. There she was.
After he had done what he apparently wished to do, he thumped her with his fist, the attacker. Why did he do that? Was it simple brutality or did he want to silence the woman so he could make his getaway? No instrument was found in the vicinity. There is a stream beside the path and no doubt any attacker would discard it. It is submitted, and very sensibly, that no one would go into a dance with a file or other implement in his pocket and there is no reason why the defendant should do so.
Are you sure that the person who attacked [the complainant] had been in the dance? Was he aware of the engagement? [The complainant] said she had been very happy after the engagement and she heard this attacker say, 'You're making a mistake. You don't know him', apparently referring to [her fiance]. '[Your fiance]'s not right for you', she said the man said, 'He's not a good person' and referred to his previous marriage. Then the voice said, 'I know because I've had the same trouble with my wife' or words to that effect. 'I know what I'm talking about, I've had the same problems', he said.
[The complainant] told you she had not looked or seen the man at this stage, nor did she see him while she was being taken away but when he turned her round she could see his face. She said there were streetlights. 'I knew the face, I had seen it from the club in the bar', she said. 'It was ...' and then she said she forgot the first name and then she remembered [the defendant's first name]. He had been introduced and she mentioned being hit on the forehead, three blows, and then in the face.
She drew a picture of the thing which she said did the damage to her - nine inches by an inch and metal. He said at one stage he did not want to see what he was doing to her but he wanted to look at her face and see her expression while he was doing it. His face was very close to her then. In the end, of course, she passed out. She then heard voices and one saying, 'Leave her alone, give her air'. She says she recognised the voice, it was the voice of the man who attacked her. She said there was sufficient light to be able to see the face and to remember it. When you bear in mind the amount of alcohol she had, the injuries she had are quite plain and are consistent, you may think, with that account."
The judge also reminded the jury of the different accounts that the complainant had given. She gave five. The first two accounts were given just after she had been found. The judge said this about them:
"This is the note, Exhibit 14: 'On the face of it, the club, left, walked a little way to a driveway with a Land Rover on the front of the driveway, a male standing by side of the Land Rover, "Happy New Year", [the fiance]'s no good for her, dragged her along the back side of Land Rover, down the back of an alleyway, 20/30 yards pathway, grass verge'. Then on the back of that the description: 'Crew cut, dark brown, brown eyes' - strongly commented upon because the defendant's eyes are dark blue and you can see from the photograph -'clean shaven, medium white complexion, five foot eight, medium build, 30 to 31, blue jeans, blue/green shirt, long sleeved, trendy'.
The defendant was wearing a sleeveless, green tee shirt and outside was wearing a green outer garment. Then on the right hand side, 'Called her [her name] and party'. Then below 'Picked wrong person' as a quote ... Then a reference to a guy with an orange shirt and dark hair which must be a reference, surely, to the partner on the pool table."
The judge then referred to the third account given to a doctor who she went to see for therapeutic reasons. The doctor who gave evidence said:
"... she could smell her as she came through the door - she went for help to [that doctor] in her local town. [The doctor] was concerned, of course, to relief this terrible infection. She took notes of what the girl said to her, but she could not say exactly what she had told her. The doctor was concerned, as I have already said, with the medical problems and not with police problems.
But this is the account. 'She had been to a New Year's Eve party at the social club. Later in the evening decided to get out and get some fresh air. She had seen the man who assaulted her inside the club but had not had any conversation or had any other contact with him'. Those are the words which are the subject of strong comment. It is no doubt right that there had been no conversation or did it mean no other contact with him? 'Suddenly attacked outside the club, dragged to the ground'. No further details are gone into, save the use of a blunt instrument in the girl's private parts."
The judge then referred to the fourth and fifth accounts which were given to the police:
"Those are the earliest accounts. Then you have the account on 1st January to the police in a statement. 'White male, 30, five foot eight/five foot nine, same height as [fiance], medium/heavy build, dark brown hair, very short, one of those shaven head styles, clean shaven, dark brown eyes'. The same matter I referred to. 'Wearing a shirt, dark denim blue in colour and flat in colour, long sleeved. Medium blue coloured jeans, stood close by a male who was wearing an orange coloured shirt. I didn't see these two men talk, they were just stood together'. No more of that was referred to.
Then on the next occasion a statement was taken this description was given: 'The male in the orange shirt was there. The male who later attacked me, I can't remember seeing him again in the bar or pool area'. That is not a suggestion that the male in the orange shirt had attacked her, it is a reference to the male who did later attack her. 'I cannot definitely say that [and she gives the defendant's first name] and the male who attacked me are one and the same but neither can I say they are two different people. They look very similar. When the man approached me outside the club he wasn't wearing a coat or jacket, he was just in shirt sleeves. I can't remember holding a drink or carrying a cigarette. He wasn't smoking, neither could I smell cigarettes upon him."
Then she was asked about the voice:
"Listening to [the defendant]'s voice, I believe he sounded similar to the voice of the man who attacked me. During the attack I knew I knew the man who was attacking me. I sensed that I knew his name and recognised his face. I remember thinking the man attacking me was [the defendant] but it didn't look like him. It looked like [the defendant] but I told myself it couldn't be him. It couldn't be him because he doesn't know me. Why should he do that? I don't know anything about him except he's married and has two children. I cannot say for certain it was him but it looked very much like the man in the pool table area just before I was introduced to [the defendant]. However, I'm not sure if he and [the defendant] are the same person'. That is something the defence strongly rely upon.
She explained that by saying that she was extremely reluctant to identify [the defendant], a member of the family. She was asked about it and said, about those passages, 'I know it was the man who attacked me'. On being challenged about it, she said that she had declined to say it was [the defendant] in effect for the sake of the family."
On 19th January the complainant identified the appellant on an identification parade. The judge, in summing-up, also refers to other witnesses' evidence, including another witness in particular whose evidence supported the defence. It is significant that the scene of the incident was a small community where the appellant is well-known. At page 29 of the summing-up, the judge said:
"It was a particularity of [this witness]' evidence that he was unaware that the man who was making a bit of a scene at that place was the defendant, although he was well known to him."
The Crown's case on that had been not that the witness was lying, but that he was unreliable.
The judge turned to the appellant's case at page 36 of the summing-up. He said this:
"He gave evidence, of course. His father is a policeman. He has been with [his wife] for six and a half years and taken on the role of stepfather to [the child]. They are very happy. [The wife] gave evidence, being read to you, that their sexual relationship is entirely satisfactory. They have a loving relationship. 'I am very well known in the village' and that is apparent, is it not? So that anyone seeing him misbehaving would be liable to recognise him. It was a little boy's fourth birthday party at home, I think on the 31st, and they had a party."
At page 37 of the summing-up the judge said this was the appellant's evidence at trial:
"'I stayed in the bar until I left. I have no recollection of who I was with, no recollection of leaving the bar'."
Then later:
"'I last saw [the complainant] when she was dancing with the kids before midnight. I didn't see her again. I left by the main entrance. I believe the cold woke me up a tad', he said. 'I wasn't aware of anyone out there. I didn't see [the complainant]'"
And a little later:
"'I left the club, I thought, around 1.10. I was at [a man]'s home at 1.15. I decided to go home'. Then he heard or saw the events in Pool Street. He went down. 'I was shocked, angry, very angry'. He accepts, I think, that he was perhaps behaving inappropriately. He went on to the party, being taken there by the girl who gave evidence. He was quiet. He washed himself at the party because he was dirty and he got home at 3.30."
The judge concluded his summing-up by stressing the centrality of the complainant's evidence. He said:
"Ultimately it comes down, does it not, to the reliability you feel able to place upon the identification by [the complainant]."
The cross-examination of the complainant had been on the basis that she had suffered a very serious attack, but that her different accounts showed that her identification of the appellant was unreliable and that she was mistaken. There was no suggestion that her injuries might have been self-inflicted. Mr Farrell informs us, unsurprisingly, that the idea never crossed his or anyone else's mind.
There were four categories of new evidence which the Commission considered might support the conclusion that the complainant might have lied about the assault and inflicted her own injuries. The new material which forms the basis of the Crown's position as set out above is now set out in the Commission's Statement of Reasons under the heading "Other Allegations Made by [the complainant]", and it includes the following passages. They are summaries of material collected in the course of the investigation which the Commission had directed take place. We have read the material in full and cite the following as a working summary of what that evidence amounts to:
26 October 1998. [The complainant] attended a police station in [a town] to use the toilet and then alleged that she had been assaulted. She had a bruised eye and cut lip but refused to give details of who had assaulted her or to make further complaint.
1 March 2000. [The complainant] reported to [police] that she had been the victim of an assault. She said that late at night she had been returning home following an evening out when she was attacked from behind by an unknown male who punched her three times in the face. Police officers who saw [the complainant] the following day said that she had marks on her cheeks and a bruised and cut lip. She stated that she did not know the man involved and did not wish the police to investigate further.
13 July 2000. [The complainant] reported to [police] that she had been the victim of a violent sexual assault. She said that she was close to her home late at night when she was approached from behind by a black male who initially put a gun to her head. He punched her in the face and forced her to lie down. He then produced a knife and slashed her across her body and legs. He used the knife to write words in her torso. The attacker left her and [the complainant] raised the alarm with a neighbour.
The police were called and investigated. [The complainant] was examined by a police surgeon who concluded that her account of the incident was false and that her injuries were consistent with her having inflicted them herself. He noted in particular that the word 'HATE' which was written on [the complainant's] chest had been written backwards. This was consistent with [the complainant] having cut the word into herself whilst looking in a mirror. The police concluded that [the complainant] had not been assaulted by another person.
[The complainant]'s daughter ['C'] was interviewed by DCI Glover as part of his investigation and made a statement regarding this incident. She was staying with her mother at the time of the incident and, after her mother came into the house claiming to have been assaulted, [C] found a pair of scissors in her mother's bedroom that she believed her mother had used to inflict the injuries on herself...
25 December 2000. [The complainant] reported to [police] that her home had been burgled and that Christmas presents had been stolen. The police officers who investigated the burglary found no evidence to confirm that it had taken place and were strongly of the opinion that no offence had taken place.
10 June 2001. [The complainant], who was using the name ['CD'], reported to [police] that she had been the victim of a violent sexual assault. She said that in the early hours of the morning she was walking home alone when she was approached from behind. She was forced to walk a short distance before she was punched in the face and forced to lie down. The offender removed her trousers and inserted his erect penis into her anus. She passed in and out of consciousness. She said that she received a number of injuries during the attack, including a cut and bruised lip, and scratch marks on her thighs and abdomen.
Police officers investigating the incident became suspicious that [the complainant] was not telling the truth. She was unable to account for the injuries to her abdomen and thighs. She could not say where she was for a three-hour period immediately prior to the attack. The details that she gave regarding where she had been earlier in the evening and what she had been doing then were shown to be false. When she was confronted with these inconsistencies, she refused to make a written statement regarding the attack and decided that she did not want the police to investigate the matter further. This was, she said, because of the lack of support that she was receiving. Police enquiries connected [the complainant] to the incident in Leicestershire on 13 July 2000. [Police] concluded that this incident did not happen and that the allegations by [the complainant] were false.
['SK'], a police officer who was in a relationship with [the complainant] at the time of this incident, has been interviewed by DCI Glover during the course of his investigation. [SK] made a statement in which he said that he was certain that the incident as described by [the complainant] did not occur. In particular he says that he had seen the injuries to [the complainant]'s thighs and abdomen before the attack allegedly took place ...
... The incidents on 13 July 2000 and 10 July 2001 are of particular significance. The striking similarities between [the complainant]'s allegations in these incidents and the incident that she said had occurred in Woodford Halse on 1 January 1999 are highlighted in DCI Glover's report and are summarised below.
• In all three incidents, [the complainant] had consumed alcohol before being attacked in the early hours of the morning.
• In each of the incidents [the complainant] said that she had been approached from behind by a male who forced her to walk to the location where the attack took place. Each of the attacks took place close to a road junction.
• [The complainant] said that she was punched in the face in each of the incidents. In the Woodford Halse and Dudley incidents she said that this caused her to pass in and out of consciousness.
• In all three incidents, [the complainant] said that the attacker pulled her trousers to her knees. She could not remember having pulled them back up.
• In each of the incidents [the complainant] suffered cuts or scratches to her abdomen and thighs...
The Commission remarks on two points in particular. There is the similarity in the descriptions of the attacks, together with the material which led the investigating police officers in Leicestershire and Dudley to conclude that the allegations they were investigating were false. Secondly, each of the incidents raises the possibility that the complainant's injuries were the result of self-harm. The complainant's daughter also stated that in a separate incident in 1999 she had witnessed her mother harming herself and then claiming she had been attacked. The Commission also obtained evidence from witnesses set out under the heading "Evidence of [the complainant]'s Propensity and Ability to Lie". These witnesses are her former husband, her mother, her daughter, two former boyfriends, one of them the fiance at the time of the incident in question.
Mr Farrell accepts that this evidence would have been admissible at the appellant's trial in 1999 if available. It would not be in the interests of justice for this court to ignore it in considering the conclusions to be drawn from the other evidence, but it is unnecessary to set it out in detail because it does not add materially to the conclusions which draw from the other allegations made by the complainant.
The Commission also refer under the heading "Evidence of [the complainant]'s Medical and Psychiatric History" to evidence contained in a confidential annex. It is sufficient to say that this evidence is consistent with the other evidence referred to above. Some of it goes back a number of years before 1999, but the most significant history is in the years 1999-2000. The Commission also referred to some features of the evidence that were available at the trial and which might have led the jury to doubt her veracity. Some of this is set out in the extracts from the summing-up by the judge which are set out above. Again it is not necessary to set them out as they appear in the Commission's report, or to refer to any other matters.
For these reasons, we conclude that this conviction is unsafe and for that reason we have decided to allow the appeal.
There is one further observation we wish to add. The Sexual Offences (Amendment) Act 1992 provides in section 1(2):
"Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed ('the complainant') shall during the complainant's lifetime -
be published in England and Wales in a written publication available to the public ..."
Section 3, under the heading, "Power to displace section 1" includes the following:
"If a person who has been convicted of an offence and has given notice of appeal against the conviction, or notice of an application for leave so to appeal, applies to the appellate court for a direction under this subsection and satisfies the court -
that the direction is required for the purpose of obtaining evidence in support of the appeal; and
that the applicant is likely to suffer substantial injustice if the direction is not given,
The power under section 3(4) does not apply in this case and there is no other relevant power. The judgment we have delivered gives rise to the concern that there may in the future be another case in which this complainant makes similar allegations against another man. If that were to happen, it would be in the interests of justice that the alleged attacker should be able to find out about and use in his defence the information contained in the report of the Commission and referred to in this judgment. Parliament does not appear to have contemplated the risk of a complainant acting as this complainant is alleged to have done. We are concerned that there appears to be no means by which we can displace the complainant's entitlement to anonymity in the interests of justice for any person against whom she may make allegations in the future. Mr Farrell of counsel has told us that he will take such steps which are available to ensure that these matters are recorded and are available to any police force investigating any future allegation.
LADY JUSTICE HALLETT: Miss Johnson, is Mr Blackwell here in court?
MISS JOHNSON: Yes, he is, my Lady.
LADY JUSTICE HALLETT: We allow this appeal and his conviction is quashed. That is an end of the criminal proceedings as far he is concerned.
MISS JOHNSON: Thank you. Of course, he will no longer be subject to the notification requirements under the Sexual Offences Act.
LADY JUSTICE HALLETT: It is all over as far as the criminal proceedings are concerned.
MISS JOHNSON: Thank you.
May I also ask for a defendant's costs order out of central funds. Mr Blackwell did incur the expense of private investigators way back in the years 2000 and 2001 in order to get this case ultimately to the Criminal Law Commission. It would be taxed in the normal way out of central funds.
LADY JUSTICE HALLETT: I am sure my Lords will agree that if we have the power --
MISS JOHNSON: Your Ladyship does have the power under the Prosecution of Offences Act 1985, section 16, subsection (4). Where the Court of Appeal allows an appeal under part 1 of the Criminal Appeal Act 1968 against conviction, this court has the power to award a defendant costs order.
LADY JUSTICE HALLETT: Any costs that have been additionally incurred by Mr Blackwell in pursuing what was plainly a very proper appeal, he should be reimbursed out of central funds.
MISS JOHNSON: Thank you.
LADY JUSTICE HALLETT: Thank you both very much.