Murray v R.

On 19June 2014 in the Crown Court at Preston, before Her Honour Judge Lloyd and a jury, the appellant, Robert Murray, was convicted unanimously of rape contrary to s. 1 of the Sexual Offences Act 1956, assault by penetration contrary to s. 2 of the Sexual Offences Act 2003 and sexual assault contrary to s. 3 of the Sexual Offences 2003. He was sentenced to 6 years imprisonment and appropriate ancillary orders were made. He now appeals against conviction by leave of the Full Court (Treacy LJ, Dove J and the Recorder of London).

The appellant was employed as a security guard at a shopping centre in St. John’s Arcade, Preston. The complainant worked in one of the shops at the same centre.

The prosecution case was that, at around 2pm on 4 April 2013, during a cigarette break, the appellant deliberately led the complainant to a secluded area out of sight of CCTV and sexually assaulted her. In addition to the evidence of the complainant and her colleague, reliance was placed upon CCTV footage showing the appellant and the complainant entering a loading bay and emerging 3 or 4 minutes later.

Crucially for the present appeal, after his arrest on 7April 2013, in interview he denied that he had asked the complainant to join him for a cigarette break and had no recollection of going with her to the back of the bingo hall. On 18June he was shown CCTV footage of them entering the area together and he again denied that any sexual activity had occurred.

The defence case at trialwas a complete denial that any sexual activity had taken place. In support, the appellant gave evidence that when it was time for him to carry out his security check, he asked the complainant to join him and she did so. Although married, he said that he did so because he was interested in a potential relationship with her colleague, Dawn. So far as CCTV cameras were concerned, his understanding was that they were everywhere.

On the important issue of what he had said to the police in interview, he agreed in cross-examination that he had gone into the loading bay area and had arranged to meet the complainant to go for a smoke and did not recall telling police that he had denied doing so. He continued, however, to deny that he was aware of the complainant’s presence in the loading bay area despite CCTV supporting the suggestion that he must have been aware of her presence. He was asked why he had pretended he had not met her when he had seen the CCTV in June and he said he was “shocked”. It was put to him that in interview he had continued to lie by denying that he and the complainant had met up but he said that that was not the case.

In her summing up, Judge Lloyd gave the standard directions as to the burden and standard of proof but did not give any specific directions in relation to the allegation that the appellant had lied. The lies alleged by the prosecution were firstly, in his interview of 7 April 2013, by denying that he had asked the complainant to join him for a cigarette break and by saying that he had no recollection of going with her to the back of the bingo hall and, secondly, in evidence, by his denials that he was aware of the complainant’s presence in the loading area.

In R v Lucas (1981) 73 Cr. App. R. 159, the Court of Appeal (Lord Lane CJ, Comyn and Stuart-Smith JJ) clarified previous confusions in the authorities and set out four conditions for a lie told in or out of court to amount to corroboration (at 162-163):

“[It] must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.” (Emphasis added)

The highlighted third of the conditions forms the basis for what is now known as a Lucas direction in respect of lies told more generally. Such a direction, where appropriate, is founded in the following ultimate question for the jury (see the Court of Appeal (Judge LJ, Wright J and HHJ Colston QC) in R v Middleton (unreported, 23 March 2000), at [21]):

“Assuming that a lie, or lies, have been told… why did this defendant tell this lie, or these lies, in this particular case?”

In R v Burge and R v Pegg [1996] 1 Cr. App. R 163, the Court of Appeal (Kennedy LJ, Curtis and Buxton JJ) emphasised (at 172) that:

“… a Lucas direction is not required in every case in which a defendant gives evidence, even if he gives evidence about a number of matters, and the jury may conclude in relation to some matters at least that he has been telling lies.”

The court then went on to explain what were appropriate cases for a Lucas direction:

“The warning is only required if there is a danger that they [i.e. the jury] may regard that conclusion as probative of his guilt of the offence which they are considering. In Goodway this court cited, with approval, the New Zealand case of Dehar [1969] N.Z.L.R. 763, in which the court said:

“How far a direction is necessary will depend upon circumstances. There may be cases … where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic.”

However, a Lucas direction is unnecessary where there is no risk that the jury may follow the prohibited line of reasoning that a defendant’s lie(s) necessarily demonstrated his guilt. This would generally be the case for example in relation to lies told by a defendant in evidence because the position would be covered by the general directions on the burden and standard of proof, a Lucas direction is unnecessary: see R v Middleton (supra), at [22] and Liacopoulos and Others (unreported, 31 August 1994), per Glidewell LJ at 15B, and R v Walsh [2015] NICA 46, at [34]. Indeed, as the Court of Appeal commented in R v Burge and R v Pegg:

“If a Lucas direction is given where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good.”

Therefore, in R v Walsh, at [35], where the lies were given in evidence and touched on the central issue of whether the defendant was the person who inflicted the injuries upon the deceased which led to her death, the Court of Appeal in Northern Ireland (Morgan LCJ, Gillen LJ and Deeny J), accepted a Lucas direction could have been given but concluded that:

“…had it been given it seems highly likely that it would have been to the disadvantage of the applicant since it is difficult to see any explanation for the various lies which was not connected to [the defendant’s] involvement in the murder.”

In this context, the court in R v Burge and R v Pegg (supra), set out four circumstances (that may overlap) in which a Lucas direction is usually required (at 173):

“1.

Where the defence relies on an alibi.

2.

Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.

3.

Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

4.

Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.”

It should be stressed that these are circumstances where a Lucas direction is usually required and such a direction is not invariably required: see R v Harron [1996] 2 Cr. App. R. 457, at 462.

While bearing all of this useful guidance in mind, the Court of Appeal explained in R v Middleton (supra), at [23]:

“… when, at trial, the question arises, should a Lucas direction be given or should it not, it will usually be more useful to analyse the question in the context of the individual case by examining the principles rather than by laboriously trawling through hosts of reported and unreported cases and learned commentaries.”

In that case, if the jury concluded that the defendant had lied to them when explaining his innocent involvement with the car, his driving of it and the presence of property from the burglary at his mother’s house, the obvious inference was that he was lying to the jury to conceal his guilt. The trial judge accordingly provided directions in relation to the defendant’s alibi, about the burden and standard of proof and further directed:

“If what he [the defendant] tells you may be right … then obviously that would raise a doubt in your mind as to his guilt. It is only if you are satisfied that he has lied to you about his account that you could find him guilty.”

The Court of Appeal (at [26]) held that such directions accurately reflected the reality of the case and, moreover:

“[The] potential inference was for the jury to draw if they saw fit. However, any attempt to embellish the summing-up with a Lucas direction would have served to confuse and complicate an essentially simple issue.”

If it is however appropriate to give a Lucas direction, the Court of Appeal noted in R v Burge and R v Pegg (supra), at 174, that it should be tailored to the circumstances of the case, but it would normally be sufficient to make two basic points:

“1.

that the lie must be admitted or proved beyond reasonable doubt, and;

2.

that the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case.”

Finally, if no Lucas direction is given and defence counsel at trial has not alerted the judge to the danger that the jury would treat a particular lie as evidence of guilt and asked him to consider whether a direction should be given to meet it, this court is “unlikely to be persuaded… that there was [in fact] a real danger”: see R v Burge and R v Pegg (supra), at 173. However, that does not go so far as to prevent an applicant/appellant from arguing his conviction is unsafe by reason of the fact that defence counsel did not raise the question of a Lucas direction if the circumstances of the case provide the foundation for such an argument: see R v Anjum [2003] EWCA Crim 493, at [38].

In R v Anjum, the appellant had been convicted of indecent assault after allegedly picking up the complainant at Heathrow airport, purporting to be the mini cab driver the complainant had ordered. The prosecution invited the jury to treat the fact that the appellant had lied in interview about the identity of the cab company which had booked him, and had lied in interview and in evidence that he was not at Heathrow airport “on spec”, as being additional reasons for doubting his claim that he had not assaulted the complainant. Defence counsel did not raise the possibility of a Lucas direction nor was one given. That did not prevent the Court of Appeal (Auld LJ, Gray and Crane JJ), at [42], finding that in the circumstances of the case:

“It would be natural for the jury, when trying to resolve the conflict of evidence as to what took place in the cab, to look at peripheral evidence, such as whether the appellant was telling the truth in his interview. That is the classic situation where a Lucas direction is required in order to caution the jury against inferring guilt from lies. In our judgment this was a case where a Lucas direction should have been given.”

The critical feature of R v Anjum is that the two potential lies were entirely peripheral to the central issue namely whether the appellant had indecently assaulted the complainant or whether she had left the car after a disagreement about the fare. Nevertheless, the judge had left the case to the jury on the basis that deciding whether the appellant was telling the truth about the peripheral issues "may assist you in determining whether you can accept his evidence on other matters". To that extent, the decision of this court was not at all remarkable.

Mr Emanuel, who did not appear below for the appellant, submits that the trial judge ought to have given a Lucas direction to cater for the possibility that they considered the appellant had been or was lying about:

In our judgment, the evidence relating to the complainant's presence in the loading bay was entirely bound up in the central issue of whether the appellant sexually assaulted the complainant in the circumstances alleged by the prosecution. It does not concern a separate and distinct issue within the meaning of the third category in R v Burge and R v Pegg (supra); neither is it in any sense peripheral within the meaning of R v Anjum (supra). The judge in her summing up summarised the evidence to the extent as we have set out above and that reflected the reality of the case. Mr Emanuel did not suggest a potential innocent reason for such a lie other than one which required speculation.

In relation to what is described as the first lie, it is open to argument whether the appellant's assertions in interview in relation to an arrangement to meet were central or peripheral. The appellant admitted in his evidence that he had arranged to meet up during the cigarette break and, in any event, whatever might have been suggested in cross examination, the case was not left to the jury on the basis that the honesty of the appellant could be tested by reference to a decision on this issue. Neither did counsel suggest that a Lucas direction was necessary on the basis that it was being contended that such a lie would itself be evidence of guilt. What was critical to the case was whether the jury were sure of the evidence of the complainant in the light of the appellant's emphatic denial that he had even seen her on the loading bay, let alone assaulted her.

In the circumstances, the standard direction as to the burden and standard of proof sufficed and the failure to direct the jury that a lie on this issue (even assuming it to be peripheral) did not necessarily establish guilt, but might have been for some innocent reason, does not render the verdict unsafe. Indeed, as the Court of Appeal concluded in R v Middleton (supra), any attempt to embellish the summing-up with a Lucas direction would have served to confuse and complicate an essentially simple issue.

In these circumstances, we dismiss the appeal.