Kordansinki, R. v

LORD JUSTICE MAY: There are 13 proposed grounds of appeal against conviction in this matter. Leave to appeal was refused for 12 of them by the Single Judge; he gave leave on ground 5.

Mr Kordasinski renews his application for leave to appeal on the other 12 grounds. We shall refer to him as "the appellant", although for most part he is in fact an applicant.

The Single Judge also refused leave to appeal against sentence, contingently on the conviction appeal. He renews his application for leave to appeal against sentence.

Mr Aylett, on his behalf, has explained today that some of the proposed grounds of appeal against conviction were formulated before he was able to take instructions, there being language problems absent an interpreter to enable him to do so. We are grateful to the interpreter who has been in Court today for the no doubt hard work which she has had to put in in the circumstances of this appeal.

The appellant was convicted on 14th October 2005, in the Crown Court at Southwark, before His Honour Judge Elwen and a jury, of three counts of a four count indictment. Count 3 charged rape, and he was convicted on that count and sentenced to 10 years' imprisonment with an extension period of 10 years under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. On count 2, alleging assault by penetration, he was convicted and sentenced to 6 years' imprisonment concurrent. On count 4, false imprisonment, he was convicted and sentenced to 5 years' imprisonment concurrent. In total meant an extended prison sentence with the imprisonment term of 10 years and an extension period of 10 years. He was acquitted of count 1, which alleged kidnapping with intent to commit a sexual offence.

The facts need to be set out in some detail. On the evening of 13th February 2005 a person called Mr Pereira was sitting in his flat in Stamford Hill, London, N16, when he heard knocking and cries for help. He opened his door to find a distressed, half naked woman who had her legs bound and a rope around her waist. She said that she had escaped after being held in the flat below which was rented by the appellant, who is a Polish national.

It was the prosecution case that while at Seven Sisters the appellant had recognised the 18 year old complainant, a Polish woman, who had rented a flat from him. He forced her into his car (this was the subject of count 1, the kidnapping count of which he was acquitted) and returned her to his flat where he had raped her. He forced her to undress and had taken sexual photographs of her before leaving her tied to the bed while he left the flat on an errand.

It was suggested that he had subsequently made efforts to avoid detection by fleeing from his flat, abandoning his car and changing his appearance.

It was the defence case that the appellant had met the complainant by arrangement and she had voluntarily got into his car and gone back to his flat. They had previously had a sexual relationship which had involved tying one and other up and his taking photographs of her. They had had consensual sexual intercourse on 13th February 2005. He had tied her up and taken photographs of her but this was with her consent, just as had been the case in the past. She, he said, had made up allegations against him in revenge for his refusal to keep her financially. He admitted that he had abandoned his car but denied that he had changed his appearance or made attempts to avoid detection by the police.

The complainant gave evidence that she came to London with a friend of hers in 2004. They rented a flat from the appellant and got on well with his daughter. She went back to Poland in August 2004, and did not see the appellant again until the day of the incident, 13th February 2005.

On that day she was on her way to Dalston to see about a job. As she was changing buses at Seven Sisters, the appellant appeared and grabbed her by the arm and spoke to her using vulgar language. He dragged her along the street, threatening to kill her if she did not shut up. This went on for about 10 minutes until they reached his car. He bundled her inside and locked the doors while continuing with his threats. She repeatedly asked him to let her go but he refused.

On reaching his flat, it was her evidence that he dragged her inside, pushed her on the sofa and began beating her and calling her a whore. He threatened to beat her so badly that she would not wake up until the next day. He snatched her mobile telephone and pushed her into the bedroom. He demanded that she undress and threatened to beat her up if she refused. She did undress and so did he. He then pushed her onto the bed and started kissing. She tried to push him off but he was too strong. She asked to leave, but he threatened to keep her there until his family returned from Poland. He asked her to take his penis in her hand and put it in her mouth. She said that she would not perform oral sex even if he beat her to a pulp.

At some stage she said he put his fingers into her vagina. When he managed to get an erection he put his penis into her vagina. She could not remember if he ejaculated or not. There came a time when he produced some pornographic magazines and asked her to adopt some of the poses. He then took some photographs of her.

As a result of a telephone call, he said he had to leave the flat but if she tried to escape he would beat her into unconsciousness. He tied her to the bed and gagged her by putting a sanitary towel in her mouth and tape over her lips. When she felt sure he had gone, she managed to free one of her hands. She got hold of a lighter from the bedside table and was able to burn through some of the ropes attaching her to the bed. She was able to put on her waistcoat and hop upstairs to seek the help of a neighbour, Mr Pereira.

Mr Pereira got his son to fetch a knife and cut her legs free. With his help she managed to retrieve her clothes from the flat and took away the camera and film used by the appellant. While she went to dress, Mr Pereira fetched the landlord, Mr Gee, who got her mobile telephone from the flat. The appellant then appeared and spoke to her in Polish. He apologised and offered her £1,000 to keep quiet, which she refused. Mr Pereira took photographs of her injuries using her mobile telephone. She contacted her brother who collected her and took her home where she had a bath. The appellant later telephoned and repeated his offer and apology which she again rejected. She later contacted the police with the help of a friend.

In cross-examination, she agreed that she had spoken to the appellant before setting off for Dalston but denied that she had arranged to meet him in Seven Sisters. She accepted that she owed him money, but denied he had paid for her trip to Poland in August 2004, or that she had telephoned him in Poland. He had not collected her from Luton on her return. She was friendly with his family, and invited to eat with them from time to time, but did not have a habit of dropping in on them unannounced.

Mr Pereira gave evidence. He said that he was resting that afternoon, when he heard knocking on his door and cries for help. He opened his door and saw a half-naked woman whose legs were tied and had a rope around one wrist. The rope was strong, and the knots were bound with silver tape. The girl, who he had never seen before said: "He got me on the road". She was very distressed, shaking and crying. She managed to make it known that she wanted him to go with her to get her clothes, which he did. At some time he saw her remove the film from the camera. He admonished her and said it could have been used as evidence by the police. When she realised what she had done, she was upset with herself.

Mr Pereira went to see if the appellant was around and then told the landlord, Mr Gee, what had happened. Mr Gee and a colleague came up, spoke to the girl and then went down to see the appellant. His camera was exchanged for her mobile telephone. Mr Pereira took some photographs of the girl with her mobile telephone and waited in his flat for someone to collect her.

The prosecution also called Mr Gee, the landlord, who gave confirming evidence of such details as concerned him. There was evidence, in the form of statements, from the complainant's brother and two of his friends who confirmed various evidence, including the state in which the complainant was when she returned to them.

There was evidence also from Kinga Vebishka, who confirmed that she and the complainant had rented the flat from the appellant in June 2004 and confirmed that the complainant owed the appellant money.

The appellant was arrested. He had approached letting agents on 23rd February. After that he was arrested on suspicion of rape.

Examination of the seized mobile telephones and also one belonging to the complainant showed that between 15th January and 14th February 2004, one of his telephones had contacted her on 23 occasions. There were no calls from her telephone to his during that period.

There was medical evidence and some forensic evidence. The complainant was medically examined. She was noted to have burn blisters to her wrists and ankles which were consistent with her having been tied up. There were various injuries and bruises. There was a moderate amount of swelling and redness to her genital area, suggestive of recent sexual activity. Semen matching the appellant was also found and examination of the rope recovered from the complainant showed that it had indeed been burned and matched that retrieved from the bedhead in the appellant's flat. Police officers also viewed CCTV footage which covered the main roads and junctions of the route which the complainant maintained that the appellant had taken her, but found no images of them walking along that route.

The appellant was interviewed. He provided a pre- prepared statement in which he stated that he had had sexual intercourse with the complainant on 13th February with her consent, that he did not kidnap her and that she met him voluntarily. After that he answered mostly "no comment" to questions put, but said that the complainant's account of events was nonsense.

He gave evidence in his trial and confirmed that he had rented a flat to Kinga Vebishka's father for Kinga and her friend, the complainant. Kinga regularly paid her rent but the complainant only ever paid £30. He made various efforts to find her work but she would not stick to them. There came a time when she proposed another arrangement saying: "You know what I mean." She frequently dropped by his flat unexpectedly in order to eat. She paid for nothing and he funded her trip to Poland in August 2004. This was confirmed by a booking agent.

They started an intimate relationship in June 2004 which continued until her trip in August 2004 and then resumed on her return the following September. She telephoned him, using her mobile or a pay telephone. On one occasion when discussing work, she told him she had come to England to find a man to support and protect her. She became angry when he told her that he was not prepared to be that man. He continued to help her out from time to time.

On 13th February he called her in response to a text message. They met by arrangement in Tottenham High Road and she voluntarily got into his car. The purpose of the meeting was to discuss money that she owed him. They went to his flat and he gave her something to eat and drink. At one stage he returned from the bathroom to find her looking uneasy and saying she had to go. He noticed that an envelope containing £2,500 on a side table had gone. He became angry and challenge her, slapped her face and grabbed it from her pocket. She just tried to laugh it off. They sat on the sofa and patched things up. After a while she suggested that they re-live old times and started to undress. They had consensual sexual intercourse. Being tied up and taking naked photos of her was part of their normal sexual activity. He had earlier handed her an envelope of 30 such photographs and negatives that day which she asked for. He had made two copies of photographs taken earlier in their relationship, which were exhibited and put before the jury. After they had sexual intercourse on 13th February, he went to get some painkillers and returned to find two men at his door and the complainant upstairs. He went to see her and, in Polish, she swore at him and said she would do something to make him regret for the rest of his life that he had not given her money. He offered her £1,000 to get out of his life for ever. She refused and said that her brother and friend were coming to get him. Men arrived later and started kicking his door, so he decided to leave and not return. He accepted his solicitor's advice and remained silent in police interview. He was tired and hungry, confused and upset.

Eleven of the 13 proposed grounds of appeal may be grouped under two headings. First, grounds 1 to 9 inclusive, all complain in one respect or other that the judge was wrong to allow the prosecution to put in evidence before the jury of details of the appellant's previous convictions in Poland. Second, complaint is made that the judge was wrong to restrict cross-examination of the complainant with reference to three rather poor quality photocopies, two of which eventually went before the jury. The appellant said that these were photographs of the complainant naked and, for one of them at least, in a sexually explicit pose, which the appellant had taken of her with her consent on a previous occasion.

The other two grounds of appeal are, in our judgment, and in agreement with the Single Judge, insubstantial, and we deal with them straightaway. Ground 12 has it that the appellant's convictions on counts 2, 3 and 4 were inconsistent with his acquittal on count 1. Acquittal on count 1 predicated that the complainant's credibility was so damaged that the conviction was unsafe. We reject this ground. The respective verdicts were not logically inconsistent, which on the authorities is the test. Further, we can readily understand the sense of the jury's decision on count 1, where the complainant's evidence was unsupported by, for instance, the CCTV evidence. Her evidence on the counts on which the jury convicted had substantial support from evidence independent of her, for example the evidence of Mr Pereira, the burned rope, the medical evidence and other evidence, quite apart from the Polish convictions to which we shall come.

Ground 13 complains that the judge in his summing-up failed to put the defence case of the full extent of the complainant's proved lies. In our judgment, this ground too is insubstantial. It is common place that judges in summing-up have to be selective. This judge did in fact refer to counsel's submissions in this respect. We have each read this summing-up in full and have each concluded that it was fair and balanced. The application for those two grounds fails and we refuse leave on them.

We come to the Polish convictions. The form in which these went before the jury was recorded in an eventually agreed one page document. It reads as follows:

We should say that in each of those instances the women are named.

In relation to the offences the document goes on:

We say, "eventually agreed", because the judge had earlier ruled in favour of a prosecution application to admit this material and rejected a variety of defence objections to it. The material was not admitted by agreement, except that, the judge having ruled against the defence objections, the defence, very sensibly, acceded to the form in which it was put before the jury.

The material to support these details had been duly obtained by the prosecution in accordance with the "letter of the request" procedure under section 7 and 8 of the Crime (International Co-operation) Act 2003. Detective Sergeant Channing gave evidence to that effect. The documents so obtained were duly authenticated with the seal of the respective Polish courts and the signature of the court clerk. They were far more extensive than a certificate or memorandum of conviction that might be produced from this jurisdiction under section 73 of the Police and Criminal Evidence Act 1984, as admissible evidence that the person named in the certificate, if it is proved that this is the defendant, was convicted of the offence recorded. The details of the offences were described in the same terms as the part of the document put before the jury to which we have referred.

There is then appended by way of substantiation to these documents emanating from Poland no less then 10 closely typed pages recording the evidence and reasoning upon which the courts reached their conclusion. There was obviously accurate internet information before the court in the present proceedings to the effect that Article 189 of the Polish Penal Code delineates an offence which in this jurisdiction would be false imprisonment; and that Article 197 delineates an offence amounting to rape. The recorded details of the offences of which the appellant was convicted clearly would have substantiated convictions for those offences in this jurisdiction.

The prosecution provided this material in support of an application to adduce the convictions in Poland as evidence of the appellant's bad character under section 101(1)(d) and (g) of the Criminal Justice Act 2003, and with reference to propensity under section 103 of that Act.

The defence resisted this on a number of grounds which the judge rejected. Some of these find their way into the proposed grounds of appeal.

Ground 4 says, with reference to section 117 and 118 of the Criminal Justice Act 2003, that the previous convictions were not properly proved. This has been expanded in subsequent submissions, and we will return to these points later in this judgment.

Ground 5 says that there was a material irregularity because the defence were unable to test the evidence introduced by the Crown to prove the Polish convictions. Ground 9 says that the Crown failed to produce evidence proving the compatibility of Polish and English law.

Other grounds of objection before the judge was that there was no trial by jury in Poland; the prosecution had not demonstrated that the Polish court applied an acceptable burden and standard of proof; and generally that these matters could only properly be dealt with by expert evidence of Polish law and procedure and there was no such evidence. The judge was asked to exclude the evidence in his discretion under section 25 of the Criminal Justice Act 1988. The judge rejected these submissions.

As became clear at an early stage, the appellant was not disputing the fact of these convictions in Poland. His case was that he was wrongly convicted there on the facts. He disputed evidence which the Polish courts accepted.

The next matter for the judge's ruling was whether the Polish convictions should properly be admitted in evidence under section 101(1)(d) or (g) of the Criminal Justice Act 2003, having regard to section 103.

The prosecution case was that these were relevant to an important matter in issue between the defendant and the prosecution (see section 101(1)(d)); and that the relevant issues included whether the appellant had a propensity to commit offences of the kind of which he was charged (see section 103(1)(a)). The prosecution also said that the appellant made or was going to make an attack on the claimant's character (see section 101(1)(g)).

Mr Aylett, for the appellant, virtually conceded before the judge that the Crown could pass the gateways in sections 101(1)(d) and (g). But he submitted that the court should not admit the evidence because section 101(3) should apply. Under that subsection, the court must not admit the evidence in the face of a defence application to exclude it, if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

It is submitted that the appellant would almost inevitably be convicted if the jury heard the details of the previous convictions in Poland. The jury could not be asked to keep than from their minds. This was coupled with a submission with reference to the decision R v Humphris [2005] EWCA Crim 2030, and now supplemented by this Court by R v Ainscough [2006] EWCA Crim 694, that in this jurisdiction, where there is a dispute between the prosecution and the defence about facts which supported previous convictions, it is not enough for the police simply to rely on material such as unsubstantiated details from the Police National Computer.

The submission to the judge in the present case was that facts to go before the jury should not go beyond what might in this jurisdiction be gleaned from a memorandum or certificate of conviction. The rather greater details from the Polish documents, excluding the evidence and reasoning, should not be permitted. The judge ruled in favour of the prosecution and left it to the parties to agree the form in which these matters should go to the jury.

Proposed grounds of appeal 1, 2, 3 and 6 seek to challenge the judge's ruling under section 101(3) and section 103. In addition to the consideration of fairness under section 101(3), it is now said that the evidence did not show propensity.

We see no force in these grounds. The judge's ruling in substance measured up to the standards outlined by this Court in R v Hanson [2005] EWCA Criminal 824, not least with regard to the question to which the circumstances of the Polish convictions were plainly material, assuming they were otherwise admissible and duly proved.

As to section 101(3) and fairness, convictions in the present case would not, if the jury so decided, depend wholly or mainly on the evidence of the previous convictions, nor indeed on the unsupported evidence of the complainant alone. There was, of course, an issue credibility between her and the appellant. But there was other evidence supporting the complainant's account. We are no more impressed with proposed grounds 1, 2, 3 and 6 than was the Single Judge, and the application in relation to them is dismissed.

Proposed grounds 7 and 8 are also, in our judgment, insubstantial. Ground 7 complains that the judge gave an insufficient direction to the jury as to the reasons why the appellant was unrepresented in Poland, simply saying that he could not afford to pay a lawyer. We think that what the judge said was entirely adequate. We do not consider that that affects the safety of the appellant's conviction.

Ground 8 says that the fact that the jury acquitted the appellant on count 1 showed, after the event, that the judge was wrong to admit the evidence, since the alleged kidnapping was part of the reasoning in support of the propensity argument. We reject that and have to say that we do not follow the reasoning. The prosecution may have failed to make the jury sure on one count on the indictment. But that does not mean that the subject of that count was not in issue between the defendant and the prosecution at an earlier stage.

As we have said, the Single Judge gave leave to appeal against conviction on ground 5 and in doing so he wrote:

We take this with the lately arrived submission of Mr Aylett to mean that, even if the Polish convictions were admissible, the detail was not duly proved. In this context, it is of course, necessary to distinguish between whether evidence is admissible and, if it is, by what means it has to be proved.

In Hanson, Rose LJ, the Vice-President said this:

We pause to observe that the Vice-President's expectations, expressed in the latter part of that passage, was in substance that which happened in this case.

The most relevant passage from the decision of this Court in Humphris was cited by Maurice Kay LJ in Ainscough, where he said at paragraph 18:

Mr Aylett's additional submissions are as follows. At common law, he says, convictions were inadmissible (see Hollington v Hewthorn [1943] 1 KB 587, a case concerning whether a motoring conviction was admissible in a negligence action against the convicted driver. He then says that the rule was overturned by section 73 of the Police and Criminal Evidence Act 1984. This deals with proof of convictions, not their admissibility. It provides that a conviction in the United Kingdom may be proved by producing a certificate of conviction. Section 74(1) makes admissible in the circumstances there set out the fact that a person other than the accused has been convicted. Section 74(3) provides that, where evidence is admissible of the fact that the accused has committed an offence, he shall be taken to have done so unless the contrary is proved. Section 75 applies where evidence is admissible that a person has been convicted of an offence by virtue of section 74. But since section 74(3) by itself does not make evidence that the accused has committed an offence admissible, that does not help. It is, we think, questionable whether section 73 of the 1984 Act affected any rule to be derived from Hollington v Hewthorn although at least one text book supposes that it did.

Section 74(3) did, it seems, perhaps make an inroad into Hollington v Hewthorn, if the accused's conviction was otherwise admissible. But that subsection alone did not, we think, make it admissible (see the opening words of subsection).

Mr Aylett's reasoning is that section 73 only refers to convictions in the United Kingdom. That is correct. It is suggested that the rule in Hollington v Hewthorn must still apply to convictions outside the United Kingdom, so that the equivalent of a certificate of conviction from a foreign court would not be admissible.

This has some support, tentative we think, from Professor Spencer in his book, "Evidence on Bad Character", where he points out that section 73 of the Police and Criminal Evidence Act 1984 only applies to convictions in the United Kingdom. He refers to section 7 of the Evidence Act 1851 and points to a problem with the Channel Islands and the Isle of Man. The text then says at page 101:

There is then the following passage on page 104 under the heading "Foreign Convictions":

We shall deal with that particular problem a little later in this judgment, but observe, as we have earlier, that Hollington v Hewthorn was not concerned with a criminal case.

Mr Aylett submitted that Hollington v Hewthorne is concerned with evidence of propensity. We are entirely unpersuaded that that is so. He submits that section 74(3) of the Police and Criminal Evidence Act 1984 puts the burden of rebutting the truth behind a United Kingdom conviction on the defence. It does not apply to foreign convictions, for the good reason that their provenance and the quality of their justice may be variable. It is very difficult for the defence to call evidence to dispute the facts underlying a foreign conviction. If the prosecution want to prove propensity, they should only be able to do so by calling live witnesses. Asked by the Court why foreign convictions do not come within the bad character provisions of sections 101 and 103 of the Criminal Justice Act 2003, Mr Aylett submitted that they did not, because Hollington v Hewthorn survived for foreign convictions. We do not see how this submission is able to single out foreign convictions. If Hollington v Hewthorn has survived it would have survived for United Kingdom convictions also, which plainly it has not.

Miss Morris makes submissions to the contrary, as follows. The evidence from Poland was in the correct form as required by the section 7 of the Evidence Act 1851 and in substantially the form considered appropriate in the R v Humphris. This latter point we regard as substantially correct. There was in substance a statement from the complainant in the form of the record of evidence.

Section 7 of the Evidence Act 1851, this provides:

Then:

Miss Morris submits that that Victorian statute enables foreign court proceedings to be proved by properly authenticated copy court documents. Proper authentication is by means of the seal of the foreign court. These Polish court documents in the present case were duly sealed.

Miss Morris then goes on to say that the rule Hollington v Hewthorn, if it ever applied to criminal proceedings, was abolished by section 99(1) of the Criminal Justice Act 2003. This provides that the common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished. Subsection (1) of section 99 is by subsection (2) subject to section 118(1) as it preserves various rules of law. These do not include the rule in Hollington v Hewthorn for convictions in a foreign jurisdiction.

It is submitted that section 118(1)(i)(c) preserves section 7 of the 1851 Act. But more to the point, section 118 refers to rules of law, not to the statutes, and section 7 of the 1851 Act is not repealed by the 2003 Act.

Miss Morris submits that foreign convictions are now embraced within section 101 and 103 of the 2003 Act by the very terms of those sections, and with reference to the definition of bad character in section 98. There is also some help, if help is needed, from the labyrinthine recesses of sections 117 and 116.

In our judgment, this subject has become overcomplicated, and complication tends to obfuscation. It is, as we have said, necessary to distinguish between admissibility and how admissible evidence may be proved. In our judgment, the Polish convictions were admissible pursuant to and subject to sections 101(1)(d) and (g), and section 103 of the 2003 Act. The rule in Hollington v Hewthorn was abolished for criminal cases, in so far as it may ever have applied or have survived, by section 99(1) of the 2003 Act.

The convictions were provable, as opposed to admissible, under section 7 of the 1851 Act, whose formalities were complied with in this case. That meant that the whole Polish record, including all the record of evidence, was provable both by section 7. It was also in a form such as that referred to in R v Humphris.

Against this state of possibility, a sensible short version was agreed and put before the jury. Within the confines of sections 101 and 103, there was the safeguard of fairness in section 101(3) available to and relied on by the defence. The entire Polish record, or large parts of it could never, we think, fairly have been admitted in full. Even without sensible agreement by the defence, the court could, and in this case obviously would, have required the prosecution to limit the material to go before the jury to kind of short details which were in fact before the jury in this case. It was also open to the defendant to give evidence denying or challenging the underlying factual basis for the convictions, and he did so. The rebuttable presumption in section 74(3) of 1984 Act did not apply.

For these reasons, in our judgment, the judge's ruling was not wrong in the result, although much of the territory we have endeavoured to cover was not covered by him, because the submissions were not before him. But the analysis, in our judgment, shows that both ground 5 and the contention that the Polish convictions were not admissible at all, both fail. There is no basis for this Court to conclude that on the strength of them that the appellant's convictions were unsafe.

Proposed ground of appeal 9 is that the Crown failed to prove compatibility of Polish and English law. We have already dealt with the substantive charges in the Polish Penal Code. There was a statement from the British Embassy in Warsaw that in Poland you are innocent until proved guilty, and that the burden of proof is on the prosecution. Poland is not the only European State that does not have jury trials. Poland, we understand, adheres to the European Convention on Human Rights. This ground has no substance.

Proposed grounds 10 and 11 are that the judge was wrong to restrict cross-examination on sexual photographs in the possession of the defence. This matter arose more than once during the trial. The judge originally refused leave to rely on or ask questions about these photographs; relying on section 41 of the Youth Justice and Criminal Justice Act 1999. This restricts evidence or questions about a complainant's sexual history. But in doing so, he ruled that the evidence was relevant. It was then later pointed out that the decision of this Court in R v F [2005] EWCA Crim 493 meant that the court had no discretion, if the evidence is relevant. So the judge modified his ruling.

He ruled, however, that only the two sexual photographs might be put to the complainant. She should be asked to look to them and asked whether they had anything to do with her and whether she recognised anything. If she said "no" to those questions, that was the end of it and there should be no further questioning. The pictures, the judge ruled, could be put before the jury if the appellant gave evidence. That is what then happened. The complainant was asked if what was then referred to as a document had anything to do with her. She said "no". Asked if she recognised anything in relation it to it, she said that she did not have a clue. She did not have any sort of clue what the sort of photographs were about. The appellant then gave evidence. The photographs went before the jury. The appellant's daughter gave evidence that she had found the pictures among her father's business papers and had given them to his solicitor. She recognised the woman in the pictures as the complainant. She gave no very convincing explanation as to why she had not mentioned this in her statement.

Mr Aylett points out that, apart from the question of cross-examination, the defence wanted to put a third photograph before the jury which was photograph more easily recognisable as being of the complainant. He also refers to a jury question where the jury asked whether there was any positive independent evidence as to who these photographs showed.

In our judgment, even if the judge had been wrong - and we do not decide that he was - to refuse to allow further cross-examination or to refuse to allow the third photograph to go before the jury, we are entirely unpersuaded that this affects the safety of the appellant's convictions, when two of the pictures did go before the jury and the evidence we have related was given.

In all those circumstances, the renewed applications for leave to appeal against conviction are refused. In so far as leave to appeal was given, the appeal is dismissed. 

LORD JUSTICE MAY: The appellant renews his application for leave to appeal against sentence. We remind ourselves that the sentences were 10 years' imprisonment for rape, with an extension period of 10 years under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 with concurrent sentences on the other two counts. We have already related the facts underlying this case in the judgment that we have just given.

In sentencing the applicant the judge said that the verdicts of the jury meant that they thought that the complainant may have gone willingly to the flat to talk about money that she owed to the appellant, but that they must have been satisfied that he subjected her to a sustained physical and sexual assault, from which eventually she managed to escape in the way that she described. The judge said that, having appreciated the likelihood of arrest, the appellant took numerous steps to avoid detection and then, once he had been apprehended, contested the case on the basis that the activity was entirely consensual. The fact, of course, he was convicted is not an aggravating fact or, but he did not have the benefit of a plea of guilty to any of the offences of which he was convicted.

The judge said that the offences were so serious that only custodial sentences were appropriate. It was plain when the complainant gave her evidence that she had been deeply and adversely affected by what the appellant had done to her. She had explained in a victim impact statement just how much her life had changed, and how the offences would continue to affect relationships with men. The impact on her, the judge said, had been severe.

The judge then referred to the previous convictions in Poland, which had been the subject of the conviction appeal, for rapes committed at knife-point in 2001, where the victims were attacked in locked cars and afterwards left tied to trees in a forest. Notwithstanding the assessment made in the pre-sentence report, these matters taken together made him a high risk of reoffending against women in a sexual and predatory manner. There was, said the judge, no weakness in the Polish evidence or the assessment of the experienced writer of the pre-sentence report.

It was noted that the jury had acquitted the appellant of kidnapping, and that some of the complainant's evidence was open to question. But none of that went to his credit or diminished the seriousness of what he did.

In the light of the evidence at the trial, the contents of the pre-sentence report, the victim impact statement and the judge's own assessment of the case after hearing the various witnesses, the judge imposed the sentence to which we have referred. He made it an extended sentence because he considered that the normal licence provisions were inadequate for the purpose of preventing the commission of further offences and securing the appellant's rehabilitation.

The appellant's antecedents, including the convictions in Poland, have been adequately described. The pre-sentence report noted that he had come to the United Kingdom in 2001, set up his own building company. Until his arrest he was living with his wife and daughter. He continued to deny the offences and failed to take any responsibility for the present case or that involving his previous convictions in Poland. The writer of the report considered that he showed no remorse for the complainant. He described himself as "the victim". His continued denial of culpability and the placing of blame on his victims meant that he was assessed posing a high risk of harm to women by sexual offending in a similar way.

There was also a psychiatric report which gave the opinion that there were no psychiatric explanations for his behaviour.

Mr Aylett, in a succinct and well directed submission, submits only that the extension period of 10 years was disproportionately great.

He refers to the decision of this Court in R v Nelson [2002] 1 Cr App R(S) 134, at page 565, where, at paragraph 19, it is said that the court must consider whether a particular extension period can be justified on the evidence available. A long extension period should usually be based on a clear implication from the accused's record, or from the pre-sentence report and from a psychiatric report. The objective of this legislation should be to fix the extra period by reference to what could realistically be achieved within it. Reference in Nelson is also made to the decision of R v Gould [2000] 2 Cr App R(S) 173, which makes clear that a court imposing an extended sentence must bear in mind that the accused may ultimately have to serve the whole of it. The whole of it in the present case would mean 20 years and 10 years as an extension period is the maximum that was permitted by that statute. The submission is that 10 years' imprisonment, subject to reductions that may be available, plus the risk of a further 10 years' imprisonment is disproportionate.

We are persuaded by that submission. We give leave to appeal against sentence and we allow the appeal by reducing the extension period, but not the period of imprisonment, from 10 years to 5 years. To that extent the appeal against sentence is allowed.