R v David Barry Parkinson

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under these provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 9 June 2023, following a trial in the Crown Court at Chester before His Honour Judge Berkson and a jury, the applicant was convicted of a single count of rape. He had previously pleaded guilty to an assault on an emergency worker, which was count 3 on the same indictment. The jury acquitted the applicant of assaulting one of the parties during the events to which we shall turn. On the same day the applicant was sentenced to nine years' imprisonment on count 1 and to a concurrent term of eight weeks' imprisonment on count 3.

The applicant's applications for an extension of time (488 days) in which to apply for leave to appeal against conviction and for leave under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence from three witnesses have been referred to the full court by the single judge. The three witnesses form the foundation of ground 1 of the application, namely that their evidence casts a long and dark shadow against the conviction. There was a further ground (ground 2) which has subsequently been withdrawn.

The facts of the offences are as follows. On 31 October 2021, the victim and her boyfriend had been on a night out. They finished up in a nightclub. The applicant was also in the nightclub. The prosecution's case was that the applicant had shown an interest in the victim whilst they were there. Indeed, CCTV footage of what had taken place in the nightclub was placed before the jury. The applicant was invited back to the victim's home address, where the three of them continued to drink.

The prosecution contended that the applicant was intent upon having sexual intercourse with the victim and had indeed suggested that they engage in a threesome, but the victim and her boyfriend both said that they were not interested. The prosecution's case was that at this point the applicant became aggressive towards the victim's boyfriend. Her boyfriend retreated upstairs to the bedroom, leaving the victim dozing on the sofa. She was intoxicated and, the prosecution contended, incapable of giving consent to any sexual activity. Notwithstanding her condition, the applicant removed her trousers and underwear and proceeded to penetrate her vagina with his penis whilst she was insensate.

The victim's boyfriend, whilst upstairs, called the police on 999 and said that he thought that his girlfriend was being raped downstairs.

The police arrived at about 4.57 am. An officer, PC Hassan, entered and witnessed sexual activity taking place between the applicant and the victim. He used a PAVA spray on the applicant and arrested him. Count 3 arose from the applicant biting a police officer whilst at the scene and in the course of him being detained.

Another police officer, PC Derbyshire, took an initial account from the victim and noted in her notes of the events that she was "very intox".

In addition, there was body-worn video footage of what was discovered and also the condition of the victim at the material time. This footage and also transcripts of that material were presented to the jury.

At the trial, the victim gave evidence that she was very drunk and was "chilling" on the sofa when the applicant told her boyfriend to leave. The next thing she knew was that the applicant had no clothes on and was pulling off her knickers. She froze. The applicant spat on her vagina and inserted two of his fingers. He was in her face, laughing, as he penetrated her vagina with his penis. There had been no discussion about sex, and she would never have agreed to have sex with him.

The jury had evidence from the police officers in relation to her initial reaction when they arrived. She was recorded as having said, in effect, that there was nothing wrong and that the applicant had not misbehaved.

The victim's boyfriend gave evidence at the trial about the applicant's suggestion that they engage in a threesome whilst they were all very drunk. He also gave evidence about the applicant becoming aggressive and dragging him out of the room, and then him calling 999.

In addition, his mother, SP, gave evidence that the victim's boyfriend had rung her at 5 am that morning and that she and her husband had gone to the scene and had found the victim to be very drunk and distraught.

In addition to the live evidence, there were agreed facts that were presented to the jury. First, there was toxicology evidence. The victim had given a urine sample at about 6.28 am on the day of the event. Her alcohol reading was 348 milligrams per 100 millilitres (the equivalent of 260 milligrams per decilitre, when the legal limit for driving is 80 milligrams per decilitre). The agreed facts stated that this was enough to cause severe intoxication in a normal drinker, dependent upon their tolerance to alcohol.

It was agreed that the victim had given an initial account to PC Derbyshire in which she made clear that she was physically pushed onto the sofa and that the applicant had forcibly had penetrative sexual intercourse with her.

In support of the defence, the applicant gave evidence. His account was very different. He indicated that after return to the victim's flat, it appeared that she was sexually interested in him, and that she may have mentioned a threesome in a "jokey way". The applicant said that the victim's boyfriend left after seeing the victim flirting with him. The applicant thought that he had taken a taxi and left the scene. The applicant said that it was then that the victim had started to kiss and undress him, following which she performed oral sex on him. This then led him to penetrate her vagina for a short time before the police arrived. The applicant said that whilst the victim was drunk, she was quite capable of making her own decisions. She instigated the sexual activity and was enjoying it. In short, the applicant contended that the victim consented to the sexual activity.

As a consequence of this evidence, the central questions in the trial for the jury were: firstly, did the victim consent to the sexual activity, or was she too intoxicated to consent; and secondly, could they be sure that the victim did not reasonably believe that she was consenting?

In advancing this application on behalf of the applicant, Miss McCulloch makes no complaint in relation to the procedure which was adopted at the trial, including the accuracy of the judge's legal directions and his summing up. Additionally, no complaint is raised about the conduct of the trial by trial counsel.

Ground 1, as we have already indicated, relates to the application to admit fresh evidence from three witnesses, which the grounds identify as casting doubt on:

The essence of the evidence to be given by the three witnesses who it is sought to introduce at this stage is as follows. Given the nature of this case these witnesses have been anonymised.

First, GH is a former partner of the victim with whom she had two children. They were together for about eight years. GH said that he left the victim because of her promiscuity after he had heard rumours about her, and her drinking problems. After he had left her, when he returned for his belongings, he was assaulted by the victim. She called the police and complained, which led to him being charged and convicted after trial of assault. On an earlier occasion GH was acquitted of an assault on the victim after trial when the victim, according to GH, made a false accusation of assault and subsequently lied in the proceedings in order to secure his acquittal.

During the course of family proceedings in which GH was seeking contact or access to his children, he undertook a paternity test by way of DNA which indicated that he is not in fact the father of his daughter. GH says that the victim is a big drinker and has threatened his new partner in various ways.

The second witness is SP. She in fact, as has already been recorded, gave evidence at the trial. In her witness statement for the purposes of the appeal, she again reiterates that she is the mother of the victim's boyfriend. She accepts that when she attended the scene, the victim was drunk and slurring her words. SP goes on to say that the victim was often drunk, even whilst expecting the child that she had with her boyfriend. She was drunk over the course of Christmas 2023, which led to the end of their relationship, and she subsequently lied about her boyfriend making threats to kill, which led to her boyfriend being arrested, and difficulties in him seeing their son and subsequent proceedings in the family court in that connection.

The third witness is XT. In her proposed evidence she explains that the victim was a heavy drinker and drank every day. She said that she was aware of occasions when she was drunk and had posted sexually explicit photographs on social media. There was an occasion where the victim attended her house, leaving her children at home with her parents whilst she was very drunk. The victim told XT of an occasion about a week before the incident in question when she had been on a night out with her boyfriend, had begun to talk with a man and then had slipped away with that man in order to have sex with him, and had subsequently lied to her boyfriend about this.

Issues of principle arise in relation to the admissibility of this evidence. The issues are threefold. First, the provisions of section 23(2) of the Criminal Appeal Act 1968 apply, and in particular section 23(2)(d) and whether there is a reasonable explanation for the failure to call the evidence which is now relied upon at the applicant's original trial.

Secondly, section 41 of the Youth and Criminal Justice Evidence Act 1991 provides:

These provisions relate to evidence which is contained in the statements of the three new witnesses relating to promiscuity and sexual activity of the victim.

The third legal strand which is in play in relation to this is the application of the non-defendant bad character provisions contained within the Criminal Justice Act 2003. Section 100 of the Criminal Justice Act 2003 provides as follows:

We have carefully considered the submissions which have been made on behalf of the applicant in support of this application by Miss McCulloch. However, on analysis we are entirely satisfied that the evidence of each of the new witnesses fails one or more of these legal tests and is not therefore admissible.

We deal firstly with GH. His evidence of the victim's promiscuity founded on, for instance, the parentage of his daughter is inadmissible, in our judgment, because it is caught by section 41(1) and cannot be introduced as a result of section 41(3). It is evidence relating to consent: see section 41(3)(a); it does not relate to the time of the event: see section 41(3)(b); it is not so similar as to bring it within section 41(3)(c). His evidence of the assault when he collected his belongings is incapable of being bad character evidence, or of substantial probative value, on the basis that it is accepted that he was himself convicted of assault on that occasion as a result of those events. Whilst he maintains his innocence, that does not assist in relation to the application of the relevant legal test. His evidence about the victim being a heavy drinker is not, in our judgment, of substantial probative value. What was of central significance to the jury in considering this case was evidence such as that from the body-worn video footage, the officers who attending the scene, and indeed the evidence of SP as to the state of the victim on the night in question. The evidence of her being drunk and tired was before the jury and was capable of being evaluated.

Furthermore, we note that the solicitors instructed on behalf of the applicant at trial were told by the applicant that there was some material that the victim was a heavy drinker. Thus, although evidence in this connection was potentially available for the applicant to adduce, it was not placed before the jury. As we have observed, in any event, what was the best evidence – and indeed the most important and critical evidence for the jury – was the evidence of the actual considered condition of the victim at the time when it was said that this offence of rape had occurred.

GH’s suggestion that the victim derived pleasure from causing suffering to his current partner and others is again not of substantial probative value to the question of whether on the night in question the victim was capable of and did consent to have sex with the applicant. Nor is it important explanatory evidence. Nor is the evidence of the victim's drinking on other occasions important explanatory evidence which satisfies the test set out in section 100 of the 2003 Act, which we have set out above.

Similarly, reliance on the victim lying to secure GH’s acquittal is of little value to the issues which had to be decided in this case. As was observed during the course of argument, and as is well known from Lucas directions being given to juries frequently, people lie on different occasions for different reasons. The central question which the jury had to determine in this trial was whether or not the victim was lying on this particular occasion. What may have happened on other occasions did not pass the appropriate test set out in section 100 of the 2003 Act.

We turn to SP. As has already been observed, this witness gave evidence at trial. She could at trial have been asked about her experience of the victim's drinking prior to this occasion. Indeed, in her evidence to the trial, as recorded in the summing up, she explained that she had known the victim for five or six years. The evidence in respect of the victim drinking around Christmas 2023 is not at all relevant to the issues with which the jury had to engage. Her evidence that the victim was prone to post sexually provocative videos on social media again falls foul of section 41(1). It is clearly related – and intended to relate – to the question of consent and does not fall within one of the exceptions to that prohibition. Her bad character evidence about the victim's conduct over her boyfriend's access to their son is again of little or no probative value in relation to the issues which the jury had to determine and which we have already set out.

Finally, we turn to XT. Again, the evidence of the victim saying that she had been on a night out and had left her boyfriend to go to another man's home, where she had had sex with him, is not admissible for a number of reasons. Firstly, it appears to us that in principle the evidence is hearsay. But even leaving that to one side, it is excluded by section 41(1). We reject the submission made by Miss McCulloch that this material was so similar as to be possibly included within the exception contained in section 41(3)(c)(ii). Her evidence is not so similar that it could not be a coincidence. In fact it is not similar since XT describes an event when it appears that the victim willingly travelled to another man's home and had a sexual encounter with him, rather than the sexual activity occurring in her own home whilst her boyfriend was present on the premises. This is simply material which is not capable of being admitted as a consequence of the provisions of section 41 and should be excluded as such.

Again, whilst Miss McCulloch develops her submissions to suggest that even if it is excluded on that basis, it should be included on the basis that it shows that on another occasion for another reason the victim lied, as we have already pointed out, that does not bring it within bad character evidence which is capable of being admitted as a consequence of the provisions section 100 of the 2003 Act.

For all of these reasons we have concluded that, as a matter of principle and taken at face value, the evidence which is comprised in the three witnesses which found this application is not properly admissible. As a consequence of that conclusion, the application must be refused.

We express our thanks to the witnesses who made themselves available in case a different conclusion was reached by the court. We are grateful to them for providing the opportunity, had it been appropriate, for their evidence to be heard. But for all of the reasons which we have given it is not appropriate and their evidence is not properly admissible.

As a consequence, the application for leave to call fresh evidence is refused. Accordingly, it would serve no purpose to give the extension of time which has been sought. For all of these reasons, the application for leave to appeal against conviction is also refused.