Ali & Anor, R v

On 20 May 2014 in the Crown Court at Cambridge before Judge Lucraft Q.C. and a jury the appellants were convicted of various sexual offences.

Ali (now aged 29) was convicted of 4 counts of rape under section 1 Sexual Offences Act 2003 (counts 1, 5, 9 and 21); 7 counts of trafficking within the United Kingdom for sexual exploitation under section 58(1) Sexual Offences Act 2003 (counts 6, 8, 10, 12, 16, 20 and 23); two counts of making indecent photographs of a child under section 1 Protection of Children Act 1978 (counts 15 and 27); one count of engaging in sexual activity in the presence of a child under section 11 (1) Sexual Offences Act 2003 (count 24); and one count of intimidation contrary to section 51 (1) Criminal Justice and Public Order Act 1994 (count 28).

Ashraf (now aged 20) was convicted of 5 counts of trafficking within the United Kingdom for sexual exploitation under section 58(1) Sexual Offences Act 2003 (counts 6, 10, 12, 16 and 23); one count of sexual assault under section 3 Sexual Offences Act 2003 (count 7); one count of sexual activity with a child under section 9 Sexual Offences Act 2003 (count 14); one count of engaging in sexual activity in the presence of a child under section 11 (1) Sexual Offences Act 2003 (count 25); and one count of intimidation contrary to section 51 (1) Criminal Justice and Public Order Act 1994 (count 28).

On 20 June 2014 the judge sentenced Ali to an extended sentence comprising 20 years’ imprisonment with an extension period of 5 years on counts 1, 5, 9 and 21. He imposed concurrent terms of 4 years’ imprisonment on counts 6, 8, 10, 12, 16, 20 and 23; 1 years 6 months’ imprisonment on counts 15 and 27; 4 years 6 months’ on count 24 and 2 years 6 months’ imprisonment on count 28. The total sentence in Ali’s case, therefore, was an extended sentence comprising 20 years’ imprisonment with an extension period of 5 years.

On the same day the judge sentenced Ashraf to 2 years’ detention in a young offender institution on count 6; a concurrent term of 1 year’s detention in a young offender institution on count 7; a consecutive term of 3 years’ detention in a young offender institution on counts 10 and 12; a concurrent term of 1 year 6 months’ detention in a young offender institution on count 14; a concurrent term of 3 years’ detention in a young offender institution on counts 16 and 23; a consecutive term of 4 years 6 months in a young offender institution on count 25 and a consecutive term of 2 years 6 months’ detention in a young offender institution on count 28. The total sentence in Ashraf’s case was 12 years’ in a young offender institution.

There were various consequential or ancillary orders that we do not need to summarise for the purposes of this judgment.

They had three co-accused. James Daly was acquitted by the jury of rape (count 4); Akash Yasin was acquitted on the direction of the judge of sexual assault (count 13) and trafficking (count 12); and Mohammed Aslam was acquitted on the judge’s direction of rape (count 19) and engaging in sexual activity in the presence of a child (count 26).

Ali appeals againstconvictionby leave of the single judge in relation to the four counts of rape under section 1 Sexual Offences Act 2003, counts 1, 5, 9 and 21; the seven counts of trafficking within the United Kingdom for sexual exploitation under section 58(1) Sexual Offences Act 2003, counts 6, 8, 10, 12, 16, 20 and 23; and the one count of engaging in sexual activity in the presence of a child under section 11 (1) Sexual Offences Act 2003 count 24, and he renews his application for leave to appeal against sentence. Ashraf appeals against sentence by leave of the single judge.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the victims of these offences shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify any of them as a victim of this offending.

In brief, the allegation was that the defendants targeted young girls from the Peterborough area, often from troubled backgrounds, whom they befriended and groomed for sexual purposes. They drove the victims to a variety of out-of-the-way locations where it was alleged they sexually assaulted or raped them, usually having first plied them with alcohol. On two occasions, rooms were booked at hotels where they stayed overnight with a number of girls for the purpose – as suggested by the prosecution – of holding sex parties. The sexual activity on one of these occasions was said to have taken place in the presence of a 14 year-old girl. During these hotel visits the appellant Ali took indecent photographs, including one sequence when Ashraf urinated over a girl in a shower and another of a girl having oral sex.

The detail of the particular offences of which Ali was convicted and in relation to which there are grounds of appeal against conviction are set out below.

By section 1 Sexual Offences Act 2003:

As regards the offences of rape, the central issue in the case as regards the appellant Ali was that of consent. The prosecution alleged that the defendants deliberately targeted and groomed these girls with the aim of using them for sexual purposes. They were selected because of their circumstances, including such factors as their ages, troubled backgrounds and humdrum lives which made them susceptible to the sexual advances of older males, who plied them with alcohol, flattered them, drove them to various locations and took them to “parties” at hotels. At the core of the prosecution’s case was the allegation that the victims became sexually compliant, and that any apparent consent on their part was not genuine or real.

Ali’s case was that there was clear evidence of consent, and that no reasonable jury could conclude that the relevant complainant had not consented, still less that Ali did not reasonably believe that she had consented. He contended that the Crown impermissibly invited the jury to ignore the evidence from the alleged victims – which it was suggested was to the effect that they had consented (save as regards count 1 and, possibly, count 21) – and to substitute their own moral judgment about the sexual relations that had occurred.

The judge’s direction to the jury on consent was as follows:

That direction was clearly based to a significant extent on observations by Elias LJ in R v Robinson [2011] EWCA Crim 916, to which we turn in greater detail later in this judgment.

It is to be noted that whereas Mr Hynes Q.C. on behalf of the applicant Ali advanced a submission of no case to answer on counts 5, 9 and 21, there was no submission on count 1. We address, to the extent necessary, the substance of those submissions and the judge’s ruling as part of our consideration of the grounds of appeal as regards the individual counts.

As set out above and discussed hereafter, the central issue raised on this appeal in this context is whether there was sufficient evidence on which the jury could convict demonstrating the complainant in question did not consent.

By section 58 (1) Sexual Offences Act 2003:

The judge directed the jury in accordance with the elements of the offence just set out, and he added as a direction in law that travel in this context includes any journey, however short, whether in a vehicle or on foot. His written direction to the jury on this issue was as follows:

The appellant’s defence was that the meetings with the girls had been to befriend them, and the occasions when they were driven around had not been for a sexual purpose.

At the close of the prosecution case, Mr Hynes had submitted that the de minimis principle applied to “travel within the UK”. He argued that applying a normal and everyday meaning to the word “travel” leads to the conclusion that an unplanned journey of only a few miles is outwith the ambit of this offence. We note that this is the only submission that the appellant Ali has raised in relation to his appeal on this count. The judge ruled that it had been demonstrated that for each of the seven trafficking counts, the individual concerned had been driven “some distance”, albeit possibly only a few miles. The judge concluded:

The sole issue, therefore, raised on this appeal in this context is whether, applying the de minimis principle, a point is reached when the nature and quality of the ”travel” is insufficient (for example, if only very short distances are covered) with the result that the judge should withdraw the case from the jury. It is argued that the travel arranged and contemplated by the appellant did not involve sufficient distances, formality or regularity as to come within the natural and normal meaning of that word. In essence, it is submitted that relatively short ad hoc car journeys are not covered by this statutory provision. Therefore, it is the appellant’s case that the judge should have allowed his submission of no case to answer.

By section 11(1) Sexual Offences Act 2003:

There was evidence that the relevant sexual activity took place in front of a 14 year-old girl in a room at the Days Inn Hotel, which included the defendants and LR, GB and SG. Ali’s defence was that no sexual activity took place, albeit there was clear evidence that this had occurred.

Mr Hynes advanced a submission at the close of the prosecution case that there was no case to answer on the basis that “there was no or no proper foundation for the necessary finding that the sexual gratification must be derived from the presence of the other, rather than that presence being incidental. Furthermore, it was contended that there was no or no sufficient material for the inference that there was no reasonable belief that SG was aged at least sixteen – as she had been instructed not to reveal her true age and had not done so until later and, in relation to other evidence, hotel staff had the collective age at fifteen to sixteen”.

This submission is repeated as part of the appeal on this count and, additionally, it is contended that if the relevant rape count is quashed, there would be no factual basis to support this count.

We note there was evidence from SG that it was known that she was only 13 years old. As summarised by the judge:

Furthermore, SG gave evidence that she had seen Ali having sex with two of the girls. She said that two of the other girls were on the bed with the men, including Ali, having sex. Again, the judge summarised this evidence in the following way:

Against that background, on the submission of no case to answer, the judge concluded:

The issues raised on this appeal in this context are i) was there sufficient evidence that the presence of SG was for the purpose of sexual gratification; ii) was there sufficient evidence demonstrating that the appellant had no reasonable belief that SG was at least 16 years old; and iii) there was a real risk that SG may not have been able to view the relevant alleged events which were said to have taken place in the bathroom.

There were two counts reflecting what was said to be non-consensual sexual activity as regards CP. For count, 1 Ali was alleged to have raped CP when she was under 16 between 1 January 2008 and 31 December 2008. It is of historical relevance that the allegation relating to CP in count 3 was that of inciting a child to engage in sexual activity contrary to section 10(1) Sexual Offences Act 2003, in that it was suggested that between 1 January 2008 and 31 December 2008 he arranged for her to be left in a car with James Daly for him to rape her. For count 3 it was contended that she was under the age of 16 when the offence occurred and Ali could have had no reasonable belief that she was over the age of 16. Submissions of no case to answer were not made as regards either count. The defence to these offences was that there had been no sexual activity. Ali was convicted of count 1 and acquitted of count 3. As regards CP, we therefore only need concentrate on count 1.

The basis of the conviction on count 1 was clear. CP gave evidence that when she was inebriated on vodka, Ali drove her to a driveway. He then had sexual intercourse with her notwithstanding the fact that she said “no” and “no, I don’t want to” and indicated that she wanted to go to sleep. Her account was that she told Ali in clear terms that she did not wish to have sexual relations (she was too weak and too drunk and wanted to go home), but he nonetheless persisted. They had sex on a few later occasions.

It is, therefore, unsurprising that Ali did not advance a submission of no case to answer at the close of the prosecution case as regards count 1 and Mr Hynes’s limited argument on this appeal is that if this court decides that the other counts of rape are unsafe, this count should be quashed “because it would be […] tainted” by the evidence which the jury had heard on the other counts of rape.

This rape was said to have occurred between 1 March 2010 and 31 October 2010. It was accepted that Ali and SS had been in a sexual relationship. There was an issue at trial as to whether this took place before SS was 16 years of age. Her account was that most of their sexual relations occurred when she was 15 years old. The appellant’s case was that she had been 17 or 18 years old. Notwithstanding that dispute, as set out above, for the purposes of this appeal it is argued by the appellant that the real question was whether SS consented. It is submitted that there was no evidence on which a reasonable jury could convict because SS did not at any stage assert that she had not consented.

In evidence, SS said that she met the appellant through her sister. When they met, they tended to drive around the Peterborough area, drinking alcohol. The appellant, who knew she was 15 years old, asked for her telephone number. Initially she did not give it to him, but later she sent the appellant a text message which included her telephone number because she was bored. The judge summarised her evidence regarding the first time they had sexual intercourse as follows:

Although she described having “fallen” for the appellant and that she did not feel under pressure to have sex (the appellant sulked rather than forcing himself on her), she gave the following description of their contact, as summarised by the judge:

It is contended that, on the basis of her age, there was no evidence that SS was “immature”, since she was 15 years old at the relevant time. It is emphasised that the decision to embark on a sexual relationship was mutual, having been agreed in advance and there was a lack of evidence of grooming, as demonstrated by their habit of driving around Peterborough drinking alcohol. In the circumstances, it is said the judge wrongly allowed the case to go to the jury.

The judge’s reasoning in refusing the appellant’s submission of no case to answer on this count was:

As regards count 9, the judge’s summary of LR’s evidence was as follows (the appellant Ali was referred to as “Mr Nice”).

When she was cross-examined, Mr. Hynes suggested to her that no sex had taken place on 5^th January 2013, albeit in evidence Ali accepted that sexual intercourse had occurred which he maintained was with LR’s consent.

There is also evidence from HK about the state of LR on this occasion before she left the car and on her return:

A number of police officers gave evidence about stopping the car in Stamford at about 10.00pm. They described LR as doing most of the talking and trying to calm HK down who was crying. It was suggested that LR was not drunk and was capable of talking.

It is relevant to note that after she had given evidence, LR sent a number of exchanges on Facebook with another witness, GB, a witness who did not attend court to give evidence but whose witness statements were read to the jury. The exchanges, as summarised by the judge in his ruling, were as follows:

On behalf of the appellant it is emphasised that LR had known Ali since late 2012 and she had initiated this meeting because she wanted to drink. At trial, the submission of no case to answer was advanced for this charge on the basis that LR’s own account was that the complainant had agreed to sexual contact. In those circumstances, it was suggested there was no proper basis for concluding that consent had been vitiated, for instance by the amount of alcohol that had been consumed. Mr Hynes underlined that LR was able to walk unaided and to have sexual intercourse standing up, whilst essentially fully clothed. She did not appear drunk to the police: when they stopped the car she appeared confident and did most of the talking. Therefore, given the evidence as to the condition of LR and her state of mind, it is argued that the direction by the judge to the jury amounted on an improper invitation to ignore the evidence of the complainant as to what happened during this incident. Mr Hynes submits that the prosecution could not properly avoid the evidence from the complainant that she gave her consent, albeit she was drunk. Additionally, Mr Hynes argues that the prosecution’s case on this count should be viewed in the context of counts 17, 18 and 19 (alleged rape of LR by Ali, Ashraf and Aslam on 16/17 February 2013), in relation to which the judge determined there was no evidence of lack of consent, notwithstanding she had drunk a significant amount of vodka.

In giving his judgment on a number of counts of rape concerning LR and other complainants, the judge observed:

Ali was convicted of raping GB, who did not give evidence during the trial. The judge permitted her statement (viz. her Achieving Best Evidence (“ABE”) interview) to be read pursuant to section 116 Criminal Justice Act 2003 on the basis that it had been established she was in fear. In particular, she was afraid of having to relive the events of 16 and 17 February 2013. The judge, in admitting the evidence, observed that there was a complete and accurate recording of the ABE interview. He was of the view that the appellant had a sufficient ability to challenge the contents of GB’s statement on the basis of the other evidence in the case, including the contradictory first account by GB. The judge concluded that this evidence had considerable probative value against the appellant, and it would assist the jury in their evaluation of other evidence in the case.

Mr Hynes submitted that the difficulties with this witness’s account, set out below, were such that the judge should have refused to admit it in evidence. In her initial interview she denied that sexual contact with the appellant had occurred. Her later account of sexual relations in the shower with the appellant was at odds with other evidence in the case. During the Facebook exchange summarised at [44] above, she did not refute the suggestion that what occurred had not been rape. There was evidence disclosed to the appellant that tended to indicate that GB was sexually active at the time of these events, that she was mature for her age and that she was an experienced drinker. There were a number of admissions before the jury which were directly relevant to GB’s evidence, that included incidents of violence on her part over a number of years that led to the police being called (these included threats made with hammers and knives). In February 2012 she consulted her GP because she thought she was pregnant following a mishap with a condom (she did not want her parents informed and the doctor described her as being very mature). In June 2012 she was violent in her parents’ car when very drunk, and she told lies about what had occurred. In October 2012 it was alleged that she had had sex with a man who had supplied her with Mkat. She was drunk and assaulted a number of police officers, whilst claiming that she drank large quantities of alcohol and used Mkat and cannabis most weekends. In April 2013 she was arrested for a public order offence, assaulting a police officer and assault occasioning actual bodily harm. In November 2013 she was discovered unconscious by the ambulance service when under the influence of cocaine and alcohol.

The appellant submitted that there was no case to answer on this count but the judge decided there was sufficient evidence to go before the jury. Mr Hynes invited the judge to direct an acquittal on count 21 pursuant to section 125 Criminal Justice Act 2003 on the basis that GB’s evidence was so unconvincing that any conviction of the appellant based on it would be unsafe. The judge ruled that he was not satisfied that any conviction founded wholly or in part on this evidence would be unsafe because it was so unconvincing and bearing in mind its importance to the case against the appellant.

The judge’s summary of principal evidence relevant to GB was as follows:

On this appeal, it is argued that the evidence of GB was inherently weak and contradictory, and that the judge should not have permitted the ABE interview to be introduced during the trial without the appellant being afforded the opportunity to cross-examine the witness. Furthermore, it is argued that the judge should have directed an acquittal on this count.

We turn next to count 24. The judge’s directions to the jury on the elements of this offence were as follows:

The judge’s ruling on this issue following the submission of no case to answer was as follows:

The appellant argues there was no, or no proper, foundation for the jury to conclude that sexual gratification was derived from the presence of at least one other individual, rather than her presence simply being coincidental. Additionally, it is contended that there was no or no sufficient material to found the inference that there was no reasonable belief that SG was aged at least sixteen.

The Crown submits that on the substantive sexual offences there was sufficient evidence on each count for the count to be left to the jury and the Judge was correct to take this course. As regards the trafficking offences, the Crown contends that the statute provides no defence and creates no exception for short journeys. It is contended that it was open to the jury to decide that the collection of the girls and driving the around as a journey the purpose of which was sexual gratification. We have not set out the respondent’s submissions in greater detail because they are reflected in the analysis set out below.

It is necessary to consider certain aspects of the principles that apply in these circumstances. There are many instances when the complainant’s evidence as to whether she consented will determine if there is a case to go to the jury. In our judgment, however, in particular situations such as the present the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent, given it is possible that the circumstances may have limited or distorted the individual’s appreciation or understanding of his or her role in the sexual relations and the true nature of what occurred.This issue was explored in Malone (1998) 2 Cr App R 447, when Roche LJ in giving the judgment of the court observed (at page 457 G):

One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent on the part of the victim. As the judge directed the jury in the summing up in this case, where there is evidence of exploitation of a young and immature person who may not understand the full significance of what he or she is doing, that is a factor the jury can take into account in deciding whether or not there was genuine consent. This was directly recognised by this court in R v Robinson (per Elias LJ):

Although, as Elias LJ observed, grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual may have been placed in a position in which he or she is led merely to acquiesce rather than to give proper or real consent. One of the consequences of grooming is that it has a tendency to limit or subvert the alleged victim’s capacity to make free decisions, and it creates the risk that he or she simply submitted because of the environment of dependency created by those responsible for treating the alleged victim in this way. Indeed, the individual may have been manipulated to the extent that he or she is unaware of, or confused about, the distinction between acquiescence and genuine agreement at the time the incident occurred.

The critical distinction between consent and submission was explored in Stephen Olubumni Olugboja (1981) 73 Cr App R 344. Dunn LJ in giving the judgment of the court observed (at page 350):

Hallett LJ indicated in Hysa [2007] EWCA Crim 2056 that questions of capacity and consent should normally be left to the jury. It is, therefore, only in clear cases that a judge should conclude that there is no evidence on which the jury could properly convict in a case of this kind and accede to a submission of no case.

In summary, in a case in these circumstances in which a vulnerable or immature individual has allegedly been groomed by the defendant, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given.

Against that background, we turn to the individual counts.

Although SS gave evidence which, at face value, appeared to indicate she had consented, as the judge observed this needed to be viewed in the context of her account of her meeting Ali, the way he treated her, how often they met, her consumption of alcohol, and the particular events that led to sex between them on the first occasion. She denied she had been put under pressure, but when asked how she felt afterwards, she said she honestly could not remember. She was quite drunk, having been drinking vodka, albeit she thought she had been aware of what was going on. She was 15 years old when this occurred and she regretted what had happened. Despite the fact that at the time it did not feel that what she had done was wrong, now looking back she considers it was reprehensible, as the defendant knew how old she was and he knew it was against the law.

Although later regret at having had sex does not, standing alone, negate consent that is freely given when the incident occurred, it provides part of the overall context which enables a court to assess whether or not the alleged victim truly consented at the relevant time. In our judgment, as regards Count 5 it was for the jury to assess SS’s suggested immaturity, the extent to which she was groomed by Ali and other defendants and the effect of the consumption by her of a considerable quantity of alcohol at the time of these events, and whether these and other factors materially had an impact on her ability truly to agree to what occurred. The appellant had a potentially powerful argument that SS had participated in the planning of this event, but that single factor was not determinative of this issue. Instead, it was simply one of a number of competing considerations that the jury needed to weigh when deciding whether there had been proper consent.

As set out above, questions of capacity and consent should normally be left to the jury, and on count 5 the diverse evidence demonstrates that this was not one of those clear and unequivocal instances when a judge should conclude that there is no evidence on which the jury could properly convict, and as a result ought to accede to a submission of no case to answer. Instead, this was a complex factual situation leading to credible competing submissions as to whether there had been true consent; that evidence required careful assessment by a jury. In our judgment, on this count the issue of consent was properly left to the jury.

The position is substantially clearer on count 9. LR was drunk, having consumed a significant amount of vodka – indeed, she said she was drunk, to a level of 8 or 9 (when 10 is completely inebriated), and as a result her memory of what occurred was unsurprisingly imperfect. On her account, the appellant took advantage of her drunkenness and her need to urinate in order to have sex with her, at night, in the snow, whilst she was facing a wall. She was unable to say if there had been any discussion in advance, and she only recalled what had had happened when she was reminded the following day. In essence, her evidence was that she did not want to admit to herself that she had been raped.

HK remembered LR stumbling when she got out of the car, apparently unaware of where she was going.

On this evidence, there was a clear issue for the jury to resolve, as to whether LR had genuinely consented. On the evidence from LR and HK, a court could sustainably conclude that LR had, at most, acquiesced when the appellant opportunistically engaged in sexual relations with her whilst she was very drunk. That conclusion is unaffected by the later exchange between LR and GB after LR had given evidence, as set out above at [44]. It is particularly important in situations such as the present, in which vulnerable young people are involved, that the admissible evidence is considered in the round. Cases should not be withdrawn from the jury because the judge is led artificially to focus on limited areas of the evidence. When the circumstances of this incident are considered generally, there is a clear basis for concluding that LR did not give proper consent.

GB’s account was wholly clear that she had not properly consented to what occurred, and she had been raped. She said that the appellant was aware that she was not “100% willing” and yet he nonetheless persisted. The night in the hotel had been the worst in her life, and she had wanted to be able to forget about what had occurred.

As set out above, the essence of the appellant’s complaint is that the judge should have refused to admit the statement by GB in evidence and that the judge should have directed an acquittal on count 21 pursuant to section 125 Criminal Justice Act 2003. The appellant contends that GB’s evidence was so unconvincing that any conviction of the appellant based on it would be unsafe. There were undoubtedly a number of points that could be advanced as regards this witness’s reliability. She denied, initially, that sexual contact with the appellant had occurred and her later account of sexual relations in the shower with the appellant conflicted with certain other evidence in the case. During the Facebook exchange with LR set out at [44] above, she did not contradict the assertion that she had not been raped. There was a suggestion that she was sexually active and mature at the time of this incident, and was used to alcohol. There were a number of admissions before the jury which were directly relevant to GB’s evidence and their assessment of her reliability and credibility. These have been considered earlier in this judgment, but they essentially all concerned incidents when she had been violent or inebriated.

In our view, the judge was wholly correct to permit the statement to be read pursuant to section 116 Criminal Justice Act 2003 because it had been established she was in fear (most particularly of having to confront the events of the night of 16/17 February 2013). There was evidence before the jury from a social worker that at the time of the trial GB was emotionally traumatised by what had occurred, and was unable to answer questions about what had happened. There was an accurate record of the ABE interview. Pursuant to section 124 Criminal Justice Act 2003, the appellant had a wide-ranging opportunity to challenge the contents of GB’s statement on the basis of the other evidence in the case, including the witness’s first account. The judge was right to conclude that this evidence had considerable probative value against the appellant, and it would assist the jury in their evaluation of other evidence in the case.

There was no reason for the judge to conclude, applying section 125 Criminal Justice Act 2003, that the statement provided by GB was so unconvincing that the conviction of the appellant would be unsafe, bearing in mind it was of critical importance to the case against him. Her statement was a credible account by someone who had been intimidated and had not given proper consent. The contradictions between her earlier and later accounts were explicable on the basis, as with many witnesses in situations of this kind, that initially she was reluctant to disclose what had occurred. Otherwise, there were classic “jury points” to be taken on her evidence, but viewed separately and collectively these factors did not lead to the conclusion that her account was so unconvincing that any conviction based on the statement would be unsafe.

Given this court has not decided that the other counts of rape are unsafe, this count does not fall to be quashed on the basis suggested by the appellant: “because it would be […] tainted” by the evidence which the jury had heard on the counts of rape discussed above.

For this count, the appellant argues there was no, or no proper, foundation “for the finding thatsexual gratification must be derived from the presence of the other, rather than that presence being incidental”. Additionally, it is contended that there was no or no sufficient material to found the inference that there was no reasonable belief that SG was aged at least sixteen, as it is averred she had been instructed not to reveal her true age and had not done so until later. Further, it is emphasised that a member of the hotel staff estimated the collective age of the young women as being 15.

In our view the judge was right to focus, as he indicated, on the detail of SG’s evidence, namely that whilst she was sitting on a chair for a long period that night, the others on the bed kept asking her about her virginity as she was still 13 and was too young. Although in cross-examination she indicated that it was only later that she revealed her true age, it was for the jury to decide whether her original account on this issue was reliable: that they knew she was too young at the age of 13. She indicated that this was said by all of them, including the appellant. Her evidence was that they were having sex on the bed, and that this happened “a lot” of times. The judge summed up this part of the evidence as follows:

This provided sufficient evidence for the jury to infer that the appellant intentionally engaged in sexual activity in the presence of SG for the purpose of obtaining sexual gratification as a result of being observed by SG, knowing, believing or intending that she was aware that he was engaging in sexual activity. Further, the jury could sustainably conclude that he did not reasonably believe that SG was aged 16 or over. No single aspect of the account by SG as to her age was determinative of the issues the jury needed to decide on this count, in that they needed to consider the evidence in the round. Given there was significant pressure placed on SG to participate in the sexual activity that was already taking place in public involving a number of people, it was a fair inference for the jury to draw that her continued presence enabled the appellant et al to derive additional sexual gratification. There was no reason, therefore, to stop the case on this count at the close of the prosecution case.

As set out above, the sole issue raised on this appeal in this context is whether, applying the de minimis principle, a point is reached when the nature and quality of the ”travel” is insufficient (for example, if only very short distances are covered) with the result that the judge should withdraw the case from the jury. In essence, it is argued that the travel arranged and contemplated by the appellant did not involve sufficient distances, formality or regularity as to come within the natural and normal mean of that concept.

The question, therefore, is whether relatively short ad hoc car journeys are covered by this statutory provision.

We underline that the offence is committed by someone who intentionally arranges or facilitates travel and has the necessary intention or belief, as set out in within s.58(1)(a) or (b) Sexual Offences Act 2003 (see in this regard the replacement section 59A Sexual Offences Act 2003, which in this regard is similarly worded). It is highly significant that in order to prove the offence it is not necessary to show actual travel. The prosecution instead has to prove no more than the intentional arranging or facilitation of travel with the requisite intention, namely “to do anything to or in respect of the complainant” at any stage or any place which, if done, would involve the commission of a relevant offence. The crime is also committed if the perpetrator believes that someone else will treat the complainant in this way.

In our view the key factor in the present context is that travel – a journey – is contemplated and the fact that it may be short does not affect whether or not the offence is committed. The judge correctly observed that the appellant was the driver of the car on each occasion, and in that sense there was clear evidence that he intentionally arranged or facilitated travel. It is self-evident that walking, for instance, between adjacent rooms, or other journeys involving truly minimal distances (for instance of a few feet or yards) may well be outside the ambit of this provision because there is a clear geographical element to this offence; but in the present case, substantive journeys took place involving a number of miles. The legislation does not specify a minimum distance or duration for the travel or journey, no doubt because victims can be “trafficked” within or across a small area or locality. The cases before our courts indicate that victims are exploited in this way within small, tight-knit communities, and it would unjustifiably undermine the reach of this statutory provision to introduce a requirement that journeys over a specified distance or time need to be contemplated or covered before a person is “trafficked” for the purposes of sexual exploitation. It would lead to absurdity to try to stipulate, for instance, a minimum number of miles, or that the journey must be planned with a clear destination, before the provision is engaged. On the evidence, this count was properly left to the jury.

It follows that we dismiss the appeal against Ali’s convictions.

For Ali it is argued that the sentence is manifestly excessive because the sentencing guidelines were applied mechanistically and without regard to the facts of the individual offences. It is suggested the judge failed to guard against repeated application of the same aggravating features, thereby leading to an excessively high starting point for each offence. It is contended, furthermore, that the judge erred in concluding that the appellant was dangerous, and he paid inadequate regard to the principle of totality.

On Ashraf’s behalf, Mr Bruce emphasises the short period of time over which his offending extended and the fact that he had no relevant antecedent history, and it is suggested that the trafficking offences should have been treated as a “C 1” offence, namely he had a limited function that was performed under direction, for which the starting point is 18 months’ and the range 26 weeks to 2 years’. It is argued the judge misapplied the relevant sentencing guidelines; certain aggravating factors were double counted; the starting point on each of the counts was too high; and the total sentence, in the result, was manifestly excessive.

In passing sentence the judge observed that it was clear from the evidence that the defendants had sought out young girls. Most of them had difficult backgrounds and the defendants had exploited their vulnerability, taking advantage of their consumption of alcohol so that they became easy prey. He accepted that some of the girls had been attracted to the appellants; they had described themselves as bored; and they were lured into a life that offered fun and excitement. However, the accused had groomed the girls and then used them for their own selfish sexual desires.

Addressing the position of Ali, he placed the four offences of rape in category 2 given that each of the four complainants was vulnerable due to difficult personal circumstances. For the purposes of culpability there was undoubted planning and alcohol had been used, thereby making Part A the relevant bracket. This gives a category range of 5 – 13 years’ imprisonment and a starting point of 8 years’ imprisonment. The judge stressed that the aggravating features included the deliberate targeting of particularly vulnerable victims, the location and timing of the offending (e.g. the use of remote locations at night) and at least one of the victims was threatened. However, the judge stressed that he needed to ensure that he took the aggravating factors into account only once during the sentencing process, and therefore he clearly recognised that he need to avoid “double counting”. The only mitigating factor was the lack of previous convictions. In those circumstances the judge determined that a lengthy sentence was called for in a case in which four victims had been raped over a period of 5 years.

Furthermore, the judge considered the dangerous offender provisions were engaged because of the significant risk of serious harm resulting from specified offences being committed by Ali in the future. He noted the appellant had falsely denied sexual relations with at least two of the victims. The probation officer concluded that Ali’s approach was to trivialise the offences and he demonstrated a clear lack of understanding as to what he had been doing. The writer had also gained the impression that he had manipulated Ashraf by ensuring that the latter was obviously linked to the victims, for instance by arranging to meet them and organising the hotels. Ali also suggested his conviction was the result of discrimination and racism. He sought to blame the victims, suggesting they had been deceitful about their ages. He was assessed as posing a high risk of sexual reoffending against children, with the corresponding risk of serious harm resulting from the commission of future specified offences. He passed concurrent extended sentences of 25 years with a custodial term of 20 years and an extension period of 5 years.

As to the trafficking offences, the judge determined that they fell within category 1 because, for the purposes of harm, the victims were under 18 and they were deceived as to the purpose of the trips. Ali’s role was best described as an operational or management function within the hierarchy (thereby making it category B as regards culpability). The aggravating factors included the exploitation of girls from particularly vulnerable backgrounds, the use of alcohol and the steps that he took to ensure that the offences were not reported to the authorities. The judge expressly reminded himself that he had to bear in mind the overlap between these offences and the individual sexual offences relating to each of the complainants. On their own the trafficking offences came within the bracket which provides a starting point of 6 years’ and a range of 4 and 8 years’ before any uplift is applied to reflect the aggravating factors. There were 7 such counts spanning 3 separate dates. On each of the seven counts the judge imposed a sentence of 4 years’ imprisonment.

Count 24, which involved sexual intercourse in the presence of a 13 year old, came within Category 1 of the Guideline and it took place in the context of “sex parties”. This offence concerned the specific targeting of a vulnerable child and fell within band with provides a start point of 4 years’ in a range of 3 to 6 years’ imprisonment. It was aggravated by the location of the offending and the presence in the room of other children. The judge imposed a concurrent sentence of 4 years 6 months’ imprisonment.

For Ashraf, the probation officer indicated that he showed a failure to accept that what he had done was wrong. The writer regarded any expression of remorse on his part as contrived rather than genuine. While he accepted some responsibility for his actions, Ashraf also blamed his victims and the criminal justice agencies for what he regarded as harsh charges. Alcohol appeared to have been a key factor in the commission of the offences. He was viewed as posing a high risk of harm to post-pubescent teenage girls and a medium risk to the general public.

On the five counts of trafficking within the United Kingdom for sexual exploitation, the judge unsurprisingly indicated that many of the conclusions he had reached in relation to Ali applied in Ashraf’s case. As set out above, he highlighted that these offences involved the exploitation of girls from particularly vulnerable backgrounds, the use of alcohol and steps that been taken to prevent the victims from reporting what had occurred. Those features warranted uplift from the initial starting point, resulting in concurrent custodial sentences of 1 year 6 months, 2 years and 3 years. For count 7, the charge of sexual assault which involved touching the breast of the victim over her clothing, the judge decided this was a category 3B offence with a starting point of a high level community order and a range of a medium level community order to 26 weeks’ custody. The aggravating factors were, as with Ali, the location and the timing of the offence, the victim’s age and her vulnerability. The judge decided that the custody threshold was passed and the appropriate term was 12 months’ custody. The charge of sexual activity with a child (count 14) involved urinating over a 14-year-old girl in the shower, when she was worse off for drink and in her underwear. The judge determined it came within Category 3 as regards harm and the aggravating features that brought it into category A culpability were the use of alcohol, grooming and an element of specific targeting. The starting point was 26 weeks, with a range of a high-level community order and 3 years’ imprisonment. The judge imposed a custodial term of 18 months. With count 25, Ashraf was charged with engaging in sexual activity in the presence of a child (sexual intercourse with a child in the presence of a 13 year old). As set out above, this offence took place in the context of a “sex party”. A vulnerable child was specifically targeted, and as a category 1 case in bracket A, the starting point was 4 years’ custody, with a range of 3 – 6 years’. As with Ali, the offence was aggravated by the location and the presence of other children. There was a consecutive term of 4 years 6 months in a young offender institution on this count and a further consecutive term of 2 years 6 months’ detention in a young offender institution on count 28 (intimidation).

Addressing, first, Ali’s renewed application for leave to appeal against his sentence, we are unhesitatingly of the view that his overall sentence, although long, was entirely merited. The dangerousness provisions were undoubtedly satisfied, given the extent and seriousness of this offending. As to totality, it is of central significance that he was responsible for raping 4 young girls, as part of a campaign of sexual exploitation in which he deliberately selected vulnerable and youthful victims, who he mistreated and degraded. The judge expressly ensured that he did not “double count” any of the aggravating features. Given the period of time over which this offending extended (5 years), the range and seriousness of the offences and the lack of any mitigation save for his antecedent history and his age, an overall extended sentence of 25 years with a custodial term of 20 years and an extension period of 5 years was not arguably manifestly excessive.

In granting Ashraf leave to appeal against sentence the single Judge observed:

In our view, the judge failed adequately to reflect, in comparison with Ali, the lesser role played by Ashraf, the far shorter period of time over which his offending extended and the absence of any conviction for rape. Although the offences for which he was convicted were serious, he was only involved for six weeks and there are grounds for concluding that he was, at least to an extent, manipulated by Ali. In each instance, the judge adopted a high starting point, and although this approach was justified when the various offences are viewed in isolation, the combination of concurrent and consecutive sentences has resulted in a sentence that is manifestly excessive. Given particularly Ashraf’s relative youth, this sentence should have been shorter. In the event, we quash the sentence on count 25 of 4 years’ 6 months custody and substitute a consecutive sentence of 6 months’ custody, leading to an overall sentence of 8 years’ custody. To that extent this appeal is allowed.