X & Anor v R

The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which we are concerned in this case and no matter relating to any person shall, during their lifetime, be included in any publication, if it is likely to lead members of the public to identify that person as the victim of any of the offences.

On 27 June 2022, in the Crown Court at Newcastle upon Tyne, X (“the appellant”) and Y (“the applicant”) were convicted of the following offences, in respect of which, on 13 March 2023, they were sentenced by the trial judge, HHJ Rippon, as follows:

Originally, there was a co-accused, Z, who was jointly indicted with the appellant on count 9. However, he died, prior to the trial, on 16 May 2022.

Although the appellant was represented at trial, he originally sought leave to appeal against conviction out of time upon grounds of his own composition. The Single Judge granted the appellant limited leave to appeal against conviction, extended time (249 days) and granted a representation order for fresh King’s Counsel. He referred an application for leave to admit fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968, to the Full Court. The appellant applies for an extension of time in which to apply to vary the notice of appeal against conviction to argue two further grounds.

Mr Adrian Eissa KC, who did not appear in the lower court, has been instructed by the Registrar to conduct the appeal on behalf of the appellant, whilst Mr Ian West, who did appear in the lower court, has been instructed by the Crown Prosecution Service on behalf of the respondent.

The applicant was also represented at trial. However, he seeks to renew his application for an extension of time (510 days) in which to apply for leave to appeal against conviction upon grounds of his own composition, after refusal by the Single Judge. He also applies for leave to admit fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968.

Moreover, both the appellant and the applicant seek to renew their applications for an extension of time in which to seek leave to appeal against sentence, after refusal by the Single Judge.

Over a period of about 9 years, between 2009 – 2018, the appellant was in a relationship with the complainant (“C1”). It was the prosecution’s case that both during and after the relationship, the appellant was jealous, abusive, coercive and controlling towards C1. On occasions he was violent towards her, and would often have sexual relations with her without her consent.

It was alleged that one of the appellant’s sexual interests involved ‘threesomes’, and that on one occasion the appellant, together with Z, raped C1.

On another occasion, after the appellant had commenced a new relationship with C2, it was alleged that the appellant and the applicant raped C2.

Count 1 reflected an occasion when, after the appellant had accused C1 of having had sex with someone else, it was alleged that he put his fingers into her vagina and told her that he would be able to tell if she had been with somebody else.

Count 2 reflected an occasion when it was alleged that the appellant punched C1 in the stomach, shortly after she had come out of hospital having had abdominal surgery and had been stitched. The incident was witnessed by C1’s mother and sister.

Count 3 reflected a further alleged assault when the appellant had accused C1 of flirting with his friend when they had been out the night before. C1 denied it and rang the male in question. The appellant grabbed the phone and smashed it, and then punched and hit C1. C1 went to have a shower but the appellant broke the bathroom door open, dragged C1 naked from the shower and down the stairs. He told her he was going to take her naked outside and show everyone what a slag she was.

Counts 4 and 5 were counts of assault by penetration and of rape. They were specimen counts to represent the occasions when it was alleged that the appellant penetrated C1’s vagina with his fingers or had sexual intercourse with her when she had said no.

Count 6 reflected the appellant’s controlling and coercive behaviour during the relationship. The appellant was paranoid that C1 had had sex with other men behind his back. It was alleged that he accused her of infidelity, he went through her phone and made threats about what he would do if he found out that she had been unfaithful.

Count 7 reflected an occasion when C1 was staying at her mother’s house, and was in bed with her sons. The appellant returned from being out with friends. It was alleged that he got into bed with C1 and put his fingers into her vagina.

Counts 8 and 9 reflected an incident, in the early part of 2016, when the appellant invited his friend Z over for a drink. The three of them were drinking. C1 stated that she remembered little of what happened. She remembered being downstairs drinking, the next thing she remembered was being naked in bed and waking up with the appellant having sex with her and Z also being naked in the bed playing with his penis. When C1 asked what was happening, the appellant reassured her that everything was fine. She then blacked out again. The next morning the appellant told her that nothing had happened. However, it was alleged that subsequently, in a series of Facebook messages between the appellant and C1, the appellant disclosed to C1, that he had had sexual intercourse with her without her consent and that Z had attempted to penetrate C1’s vagina with his penis.

Counts 10 and 11 reflected an occasion when it was alleged that the appellant put his fingers in C1’s vagina and then went on to have sex with her when she had told him to leave her alone.

Count 12 reflected an occasion when the appellant had returned home from a night out in which he had been drinking and had taken cocaine. C1 was in bed, and she refused his advances. However, C1 alleged that the appellant forced his hand down her pants and into her vagina.

Count 13 reflected an occasion when the appellant had been accusing C1 of cheating on him. It was alleged that the appellant grabbed C1’s crotch area while she was on the phone to her work. That was the last sexual offence which it was alleged had been committed by the appellant during their relationship.

Counts 15 to 18 reflected occasions when it was alleged that the appellant touched C1 sexually after their relationship had ended, during the handover of their sons with whom the appellant continued to have contact.

Count 19 was a charge of stalking C1. After the appellant and C1 split up, it was alleged that the appellant continued to treat C1 as if she belonged to him and could do as he wished with her. The controlling and coercive behaviour, born out of his paranoid jealousy that had been a feature of the relationship while it subsisted, continued in his stalking of C1 after the relationship had ended.

Count 20 was a charge of witness intimidation. After the appellant was interviewed, he was released under investigation. There was an unplanned meeting between the appellant and C1 during which it was alleged that the appellant called C1 “a fucking rat”.

After the appellant and C1 split up, the appellant formed a new relationship with C2, who was aware that the appellant had been accused of raping C1.

Counts 21 and 22 again arose out of the appellant’s alleged sexual interest in ‘threesomes’. On 9 April 2020, the appellant met the applicant, whom he knew, in the Galleries in Washington. According to the appellant, they had a drink together, and later on they were drinking at the appellant’s home. At some point, the appellant phoned C2 and asked her if he could come over to her flat with the applicant. C2 had been drinking wine and reluctantly agreed. The appellant alleged that he and the applicant arrived together after midnight. C2 recalled that the appellant tried to have sex with her in the kitchen. She then blacked out and next remembered being asleep in the bedroom, before waking up, at which point she felt something trying to go into her mouth. She described after that how “that man pulled us to him and just started thrusting really fast inside of us”. She kicked him off and then started hitting the appellant saying that C1 had been telling the truth. The applicant left the house. Text messages in the weeks before and after the incident were used as evidence that C2 was not a willing participant to a ‘threesome’.

C2 did not know the applicant and initially could not remember his name. However, she subsequently found out the applicant’s name and recognised him from a picture on Facebook. C2 later picked the applicant out during an identification procedure.

The appellant was interviewed by the police on 4 November 2019 in respect of the alleged offences relating to C1. In regard to most of C1’s allegations relating to sexual offences, the appellant said that he could not remember the incident, or denied that it had happened. However, he said that any sexual activity that had taken place was consensual. In relation to the Z incident, the appellant said that they had had a ‘threesome’ but he could remember little about what happened. He did not think Z had had sex with C1, but whatever had gone on was with C1’s consent.

Z was interviewed on 21 November 2019, in which he suggested that there were two occasions upon which he had had some form of sexual contact with C1, one being the subject of counts 8 and 9, whilst the other took place on a separate occasion. Although a superficial reading of the transcript of the interview might have given the impression that this further occasion preceded the events of counts 8 and 9, it is quite clear from a proper reading of the transcript, that Z was suggesting that the further occasion took place after the events giving rise to counts 8 and 9.

Z said that he had had sexual intercourse with C1 a few years ago, when he had been round at the appellant’s house drinking with the appellant and C1. He described how C1 had come downstairs dressed in a net suit, and bent over showing her bum. He said that all three of them went upstairs and lay on the bed. He said that C1 had gone on all fours, and the appellant had had sexual intercourse with her, after which C1 had invited him to have sex with her. He said that he did put his penis into her vagina, but that he wasn’t able to get properly erect and so he had withdrawn. Following which he went to the toilet and left the house.

Z said that more recently, there was another incident when he had been at the appellant’s house, and C1 had come downstairs wearing a net suit showing her bum. He said that the three of them had gone upstairs and that C1 was lying in the middle with the appellant and himself either side of her. He said that C1 then proceeded to manually masturbate the appellant and himself.

The appellant was interviewed on 12 May 2021, in relation to the allegation made by C2. The appellant admitted that he and the applicant had gone to C2’s house. The appellant said that he did not think there was any sexual contact between C2 and the applicant. He denied that he himself had attempted to rape C2 by putting his penis in her mouth when she was asleep.

In the course of the interview the appellant was asked whether he had ever had a ‘threesome’ before, to which the appellant indicated that he had. When he was asked how many times, the appellant replied,

“Once with Z.”

The applicant was interviewed about the incident with C2. He admitted that he and the appellant knew each other and that they had bumped into each other in the Galleries in Washington. He agreed that they had had a drink, but he denied going to C2’s house. He said he had never met C2 and was not involved in any sexual activity with her.

In his Defence Statement, the appellant denied that he had ever forced C1 into having sexual activity with him. He stated that the two of them had an active consensual sex life, and that C1 would often dress up in provocative clothing and dance in a sexual manner around a pole when others were present.

The appellant stated that he and C1 had engaged in a number of ‘threesomes’, including a previous ‘threesome’ with Z. In relation to counts 8 and 9, the appellant stated that whilst he and Z were at home with C1, she had gone upstairs, before coming down in a provocative net bodysuit, and proceeded to gyrate in front of Z, before the three of them went upstairs and consensual sexual activity took place.

The appellant stated that he had never been coercive or violent towards C1 and had never sought to have sexual relations with her after they split up. The appellant believed that the motivation behind the false allegations made by C1, was due to a desire by her to prevent him from seeing their children.

The appellant agreed that he had formed a relationship with C2, and that there was an occasion when she had invited him and the applicant over to her house. The appellant agreed that he and C2 had sexual intercourse together, after which he fell asleep. However, when he woke up he found the applicant on his knees at the end of the bed. The appellant stated that although he did not see what was happening, he assumed that the applicant was having sex with C2. The appellant believed that the motivation behind the false allegation made by C2, was due to her being upset by his infidelity.

In his Defence Statement in relation to count 9, Z acknowledged that he had been present with C1 and the appellant at the material time. He stated that C1 had gone upstairs and came down wearing provocative clothing. She then bent down and asked him what he thought of her bum. After this all three of them had gone upstairs and Z had taken off his clothes, as both C1 and the appellant had encouraged him to do so. C1 had then got onto all fours, and the appellant had proceeded to have full sexual intercourse with C1, following which the appellant had encouraged him to do likewise, but Z stated that he was unable to do so as he could not obtain a sufficient erection.

Z stated that on a subsequent occasion, about one or two years later, in 2017/2018, he was at the appellant’s house when C1 had come downstairs wearing provocative clothing and bent over, before the three of them went upstairs. Whilst on the bed, Z stated that C1 lay in between him and the appellant, after which C1 proceeded to masturbate both of them at the same time.

In his Defence Statement, the applicant agreed that he had known the appellant for many years, but denied that he was a close friend. He agreed that he had bumped into the appellant in the Galleries in Washington, albeit on 3 April 2020, rather than 9 April 2020, and he denied that he had gone with the appellant to C2’s house.

The applicant agreed that at the time he had recently broken up with his long-term partner, but denied that he was sexually frustrated because by then he had another girlfriend. He said that he was now in another long-term relationship with another girl.

The applicant stated that when, during the course of the police interviews, he said that he couldn’t remember something happening, he really meant that it did not happen. He said that when he had told the police that after bumping into the appellant he had gone on to have 6 or 7 pints, he was confused, and what he really meant was that this was the type of quantities which he had when he normally went out for the night, and that he had not been drinking with the appellant that night. Likewise, when he said to the police that the reason why he might not remember being in C2’s bedroom was because of alcohol, he didn’t mean that he was in her bedroom, as he had never been to her house, and was instead referring to the fact that alcohol generally affects his memory.

The applicant stated that he did not know why either the appellant or C2 was saying that he had had sex with C2 or why C2 picked him out at the identification procedure.

At trial, those instructed on behalf of the appellant applied to cross-examine C1 in relation to three incidents at her home, when it was alleged that she had dressed in provocative clothing and gyrated around a pole whilst others, including the appellant, were present.

The first of these incidents was said to have taken place when Z was present. In the written application, which reflected the contents of the appellant’s Defence Statement, it was alleged that the incident had taken place prior to the events giving rise to counts 8 and 9. However, during the course of oral submissions it became clear that the incident which was sought to be relied upon by the appellant was the incident described by Z in his Defence Statement, which was alleged to have taken place in about 2017/2018, a year or two after the events giving rise to counts 8 and 9, in the course of which C1 was alleged to have masturbated the appellant and Z.

The second and third of these incidents were also alleged to have taken place in about 2018, some 2 years after the events giving rise to counts 8 and 9. They involved two other individuals, and on neither occasion was it alleged that the pole dancing had led to sex taking place with either of them.

On behalf of the appellant, it was acknowledged that the incidents amounted to evidence of “sexual behaviour” as defined by section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”), such that by reason of section 41(1), no question could be asked in cross-examination on behalf of the appellant without the leave of the court. It was submitted that the leave of the court should be granted on two bases.

Firstly, it was submitted that although the questions related to a relevant issue, namely the issue of C1’s consent in relation to counts 8 and 9, leave to ask questions about the other incidents should be given under section 41(3)(c)(ii), because they were so similar to the events giving rise to counts 8 and 9, that the similarity cannot reasonably be explained as coincidence.

Secondly, it was submitted that, in the alternative, leave to ask questions about these incidents should be given under section 41(3)(a), because they related to an issue that is not an issue about consent. In the written application, it was submitted that in her ABE interview, C1 had said “that she has never engaged in sexual conduct with Z prior to the events relating to Count 9 and that she has not engaged in a ‘threesome’, with Z or any other.” It was submitted that in order to prevent the appellant from having contact with their children and to slander his character, C1 had begun a campaign of false allegations against him, and that “The purpose of this narrow line of questioning is to establish a reason for her making this false statement of fact.”

The application was opposed by the respondent, and it was pointed out that due to the nature of the appellant’s defence, the issues which would be for the jury to determine in relation to counts 8 and 9, were whether C1 consented to having sexual intercourse with the appellant and Z, and/or the appellant’s reasonable belief in her consent. Moreover, that pursuant to section 41(2)(b), the court may not give leave to ask questions about these incidents, unless it is satisfied that a refusal to do so might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case.

It was submitted that in order for leave to be granted to ask questions about the other incidents, under section 41(3)(c)(ii), sufficient similarity was required to make the evidence probative, and that in the present case there was no sufficient similarity between the events giving rise to counts 8 and 9, and the subsequent incidents. Moreover, given the strength of the evidence supporting the assertion that C1 had not consented to having sexual intercourse with the appellant and Z, arising from the Facebook messages which had been exchanged between the appellant and C1, section 41(2)(b) was not satisfied.

Furthermore, it was submitted that the alternative way in which the appellant sought leave to ask questions about the other incidents, under section 41(3)(a), could not afford a route to obtaining leave, as it was readily apparent that the purpose of asking such questions was to seek to elicit material for impugning the credibility of C1 as a witness.

At the conclusion of the hearing of the application, the judge refused to grant leave to the appellant to ask questions about any of the incidents, and the judge indicated that she would provide written reasons for her ruling in due course.

In the meantime, the appellant had made a written application, under section 41(3)(b), to seek leave to cross-examine C1 and give evidence about her conduct immediately prior to the events giving rise to counts 8 and 9, namely that C1 had changed into a net body suit and danced provocatively around the pole in front of the appellant and Z. The judge granted the application, acknowledging that it was relevant to the issue of consent and/or reasonable belief in consent, in that whilst it was the prosecution case that C1 had been incapable of giving consent due to being incapacitated through drink and/or drugs, the appellant’s case was that C1 was not incapacitated and had given her consent to having penetrative sexual intercourse with the appellant and Z.

In the subsequent written reasons for her ruling, concerning her refusal to permit cross-examination about the other incidents, the judge first of all dealt with the allegation that on three subsequent occasions, C1 had dressed in provocative clothing and gyrated around a pole whilst others, including the appellant, were present. The judge pointed out that Z had not alleged that there was any pole dancing, and that neither of the others alleged that this had led to any sexual activity taking place with C1.

The judge observed that,

“…suggesting that dancing and dressing ‘provocatively’ could or should lead a jury to a conclusion that [C1] was consenting to any actual sexual activity between the parties that followed (then or on any other occasion), or indeed that [the appellant] could reasonably believe that she was, is an affront to the protection s.41 was drafted to provide. One simply does not follow the other.”

In these circumstances, the judge was satisfied that the purpose or the main purpose for asking about these matters would be to impugn C1’s credibility.

In so far as the subsequent incident involving Z was concerned, the judge noted that the incident was alleged to have taken place one or two years after the events giving rise to counts 8 and 9, and that the sexual activity which Z described as having taken place on the subsequent occasion was significantly different from that alleged in counts 8 and 9, in that whilst the conduct alleged in counts 8 and 9 involved penetrative sexual intercourse, the subsequent incident was an allegation that C1 had masturbated the appellant and Z.

In those circumstances the judge did not consider that there was sufficient similarity between the subsequent incident involving Z and the events giving rise to counts 8 and 9, that the similarity could not reasonably be explained as a coincidence.

In relation to the alternative ground upon which the appellant sought to rely, under section 41(3)(a), the judge acknowledged that one of the issues which may arise in a case, which would not be an issue of consent, was “…that the complainant was biased against the accused or had a motive to fabricate the evidence…”, per Lord Hope of Craighead in R v A (No 2) [2002] 1 AC 45 at [79].

The judge considered that even if C1’s denial that she had been involved in a subsequent ‘threesome’ with Z could be considered to be a lie, it was not analogous to and did not carry the probative value of the situation where a complainant can be demonstrably shown to have made a false allegation of sexual abuse. In those circumstances, the judge was of the opinion that the evidence did not come within section 41(3)(a).

In any event, the judge was satisfied that given the sheer number of counts on the indictment, the appellant had ample material upon which he could argue that C1 had launched a campaign of false allegations against him, without the need for reference to the subsequent incidents.

Moreover, the judge stated that having regard to the application under section 41 as a whole, she was satisfied that there was no danger that refusing leave to ask C1 about these subsequent incidents might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case.

In the course of the trial, C1’s ABE interview was played to the jury concerning the events giving rise to the allegations contained in the indictment.

C1 stated that before the events giving rise to counts 8 and 9, she had not had a ‘threesome’, and that she had never had any form of “relationship” with Z, either before or since then.

In relation to counts 8 and 9, C1 stated that,

“…we were just sitting having a drink. Um, I don’t know what happened between just having normal conversations, but then the next thing I can remember, um, I was on the bed. I opened my eyes, and X was having sex with me. And when I looked to the left, Z was lay there was no clothes on, and he was touching himself. Um, so I started shouting, saying, ‘What the fuck’s going on? What are you doing?’ And X was going, ‘Calm down, it’s fine, it’s fine. Don’t worry about it. It’s fine.’ And that’s all I can, all I can remember. Um, I asked X the next day and for the following couple of weeks what had actually happened. Um, and he said that, he was saying to me that nothing had happened. I, I wasn’t touched off Z. Um, and then that’s how he’d left it up until it was a couple of months later, um, and I got a message on Facebook from him saying that he didn’t want to mention the past, um, he knew that it me, but he needed to tell us the truth of what actually happened. Um, and he basically said that Z did try and have sex with me. Um, he put his bits…..inside of me. Um, and then he said it wasn’t working properly, or something. Um, so he stopped. But he actually wrote on there that he knew that I didn’t have a clue what was going on…”

A number of Facebook messages between the appellant and C1 were provided to the jury.

Those which were said to have related to the incident forming the basis of counts 8 and 9 included the following message from the appellant to C1,

“I know you want the past forgot but is playing on my mind. You asked me if Z had done anything other than touch you and I said no, but he did try and put his thing in but it didn’t work ‘cos it wasn’t hard. Hate myself, but I had to tell you because you wanted to know and I don’t want to lie to you. You were bent over and didn’t know what was going on TBH. Now it can be forgot. Doesn’t need to be spoke about again.”,

together with a message from C1 in reply,

“I would’ve went fucking mad if I knew. My stomach is turning.”

In her evidence, C1 confirmed that this series of messages, and what followed them represented the first time when she knew what had taken place on the night when Z had come round to their house.

In cross-examination, C1 agreed that the appellant had purchased a pole which you could dance around. She said that although she had no recollection of having danced around it on the night when Z had come round to their house, it was possible that she had done so. C1 agreed that she owned a lace bodysuit, and couldn’t remember whether she had worn it that night, as she couldn’t remember a lot about the night and did not know what she had done. However, she didn’t believe she would have danced around the pole provocatively, as normally when the pole was brought out everybody would just have a laugh.

At trial, the appellant’s evidence reflected what he had stated in his Defence Statement. In so far as the electronic messages between himself and C1 were concerned, which it was alleged mirrored the offences at counts 8 and 9, the appellant stated that these were not a complete picture of the communications between them. He provided a similar explanation in relation to the electronic messages between himself and C2, which reflected the offences at counts 21 and 22. Moreover, the appellant said that these messages were often sent when the parties had been affected by intoxicants and did not necessarily mean what they appeared to suggest.

A number of agreed facts were placed before the jury, including the fact that,

“6.

Z passed away on 16 May 2022.

7.

Z was indicted on count 9 of the trial indictment alongside X. On the 16^th September 2021, Z had entered a not guilty plea on the basis that all sexual activity was consensual.

8.

Y was born on ……. He appeared before the Juvenile Court on several occasions. Those convictions included burglary, theft, having an article with a blade or point, supplying an article for use in the administration of a controlled drug, possessing a controlled drug, battery, using threatening, abusive, or insulting behaviour. His last conviction was on 2 July 2002 when he was 16.”

C2 gave evidence about the events of 9/10 April 2020 and was cross-examined on the basis that the applicant had never been at C2’s house on the day in question. It was suggested that the applicant had been mistakenly identified by C2. Moreover, when the appellant gave evidence confirming what he had stated in his Defence Statement about what took place at C2’s house, he was cross-examined on the basis that he was lying about the applicant being present at C2’s house that night.

The applicant gave evidence and confirmed that he had lost his job on 8 April 2020, and that on the following day he had met the appellant at the Galleries in Washington. However, he denied having gone for a drink with the appellant, and denied that he had later gone with the appellant to C2’s house.

The appellant’s mother gave evidence to the effect that on the evening 9 April 2020, she had a video call with the appellant whilst he was at his home, during which she had a conversation with the applicant who was also present at her son’s house.

In the course of her summing-up, the judge provided the jury with written directions concerning the law which applied to their consideration of the evidence, including their approach to the identification evidence in relation to the applicant, together with a written route to verdict in respect of the various counts on the indictment, setting out the matters which the prosecution had to prove in relation to each accused on each count.

In relation to the applicant’s previous convictions, the jury were directed that,

“They are old and as an adult [the applicant] has no convictions of any kind. You heard about these convictions because [the applicant] wanted you to know that he had no convictions for any sexual offences. The convictions are otherwise irrelevant and cannot help you in determining whether he is guilty of the offence you are considering.”

The judge went on to direct the jury that the fact that the applicant, and indeed the appellant, had no previous convictions for sexual offences may make it less likely that either of them would have committed any of the sexual offences alleged against them.

The appellant was granted leave to appeal against conviction on the single ground that the judge’s ruling, under section 41(3)(c), relating to the admissibility of the evidence concerning, what was described as the “Fishnet Pole Dancing”, was wrong.

In relation to this ground, Mr Eissa KC, to whom we are grateful for the quality of his submissions, focused our attention upon the evidence concerning the separate occasion upon which Z described that he had had sexual contact with C1 in his Defence Statement. He submitted that there were a number of compelling similarities between what happened on this occasion, and the events giving rise to counts 8 and 9, which ought to have resulted in the judge granting the appellant leave to ask C1 about this subsequent incident, and to adduce evidence concerning it. In this regard, he suggests that these included the fact that both incidents occurred at the house he shared with C1, that drink and alcohol had been consumed, that C1 danced around a pole in a fishnet body suit, and that they proceeded to have a ‘threesome’ in bed together.

Although in his skeleton argument Mr Eissa, adopting trial counsel’s stance at trial, suggested that the separate incident concerning Z had occurred prior to the events giving rise to counts 8 and 9, as we have already observed, it is clear from a proper reading of the interview with Z that the separate incident occurred after the events giving rise to counts 8 and 9. Indeed if there had been any doubt about this matter, Z’s own Defence Statement clarified the matter, and indicated that it had occurred a considerable time after those events.

Mr Eissa, very properly, did not seek to persuade us otherwise, and pointed out that there was no temporal restriction as to the other “sexual behaviour” upon which leave to cross-examine C1 was sought under section 41(3)(c).

Mr Eissa had also sought leave to argue two further grounds of appeal. Firstly, that for reasons other than advanced at trial, the evidence relating to the separate incident with Z was admissible under section 41(3)(a), namely that it was relevant to the issue as to the appellant’s reasonable belief in consent. Secondly, that although no submission to this effect had been made at trial, the evidence concerning the separate incident with Z was admissible under section 41(5), as being capable of rebutting C1’s evidence that she had not had a ‘threesome’ or any consensual activity with Z, and that she had not engaged in fishnet pole dancing.

Mr West appeared on behalf of the prosecution at trial and before us on behalf of the respondent for the purposes of the appeal. He submits that counts 8 and 9, ought to be viewed in the context of the evidence as a whole, which was to the effect that the appellant repeatedly committed non-consensual sexual offences against C1 during the course of their relationship, which was characterised on his part by coercive and violent conduct towards C1.

In this context, the issue for the jury in relation to counts 8 and 9, was whether, as the appellant suggested, C1 was fully conscious and consenting to having penetrative sexual intercourse with the appellant and Z, or whether, as C1 stated, she was effectively unconscious through alcohol and drugs so as not to be able to provide such consent.

It is submitted that whilst the narrative of what preceded the events giving rise to counts 8 and 9 may be relevant to the issue of whether C1 was so incapacitated as to being incapable of giving consent and/or the appellant’s reasonable belief in consent, the fact that C1 may have dressed in a fishnet body suit and danced around a pole is not indicative of her preparedness to consent to have penetrative sexual intercourse, either with the appellant and Z on this occasion or anyone else on any of the other occasions upon which it was alleged that this type of behaviour had occurred.

Likewise, it is submitted that the fact that C1 might have been prepared to engage in sexual activity with Z on a separate occasion, was not relevant to the issue as to whether she was prepared to have penetrative sexual intercourse with him on this occasion. In any event, it is pointed out that not only was it alleged that the separate occasion took place a considerable amount of time after the events giving rise to counts 8 and 9, but it is submitted that the nature of the sexual activity involved was markedly different, such that it did not bear the type of similarity which could not reasonably be explained as a coincidence.

In any event, it is pointed out that the prosecution evidence relating to counts 8 and 9 was extremely strong, and that the contents of the Facebook messages permitted only one answer in relation to the issue of consent and reasonable belief in consent, such that section 41(2)(b) was not satisfied.

In relation to the further grounds of appeal upon which leave is sought, it is pointed out that the separate incident with Z was alleged to have occurred after the events giving rise to counts 8 and 9, such that this evidence would be incapable of having any bearing on the issue of the appellant’s reasonable belief in consent. Moreover, C1 admitted that she may have been involved in fishnet pole dancing prior to the events giving rise to counts 8 and 9, and that her denial of having a ‘threesome’ with Z related to the period prior to those events.

In R v Guthrie (Germaine) [2016] EWCA Crim 1633, Sir Brian Leveson P. reviewed the authorities relating to section 41(3)(c), and provided an invaluable summary of the overall effect of the provision, between [10] – [12],

“10 The principles engaged by section 41 can be summarised briefly. It is accurate that striking similarity is not required: see R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45, para 133. There must be relevant similarity between the previous and current alleged conduct which necessitates an exploration of the circumstances so as to avoid unfairness to the defendant: see R v M (M) [2011] EWCA Crim 129 at [48]. Third, if it would be tantamount to saying that the complainant was a person who was engaged in casual sex in the past and therefore would have been likely to do so on the occasion that the complainant was with the defendant, that cross-examination will not be allowed (R v Harris (Wayne) [2009] EWCA Crim 434 at [17]), that the principal purpose of cross-examination must not be to impugn credibility (R v Harris (Wayne), at para 20), but must be truly probative to the issue of continuity: R v Hamadi (Zeeyad) [2007] EWCA Crim 3048. Furthermore, there must be a sufficient chronological nexus between the events to render the previous behaviour probative: see R v M (M) at para 48. Finally, there is the exercise of judgment in connection with the application.

11 It is an exercise of judgment whether or not to permit leave and its exercise demonstrates the height of threshold in section 41(3)(c) of the Act: R v Hamadi, para 23. In that case, this court found that the following similarities could reasonably be described as mere coincidence falling short of a threshold in paragraph (c). These were that the complainant herself instigated sexual activity, that the activities took place outside in relatively public places in winter and while the complainant was involved in a relationship with her boyfriend.

12 In the instant case we do not accept that the defendant has put forward any sufficient factors or combination of factors that satisfy this high threshold. Any similarity between previous sexual encounters between the defendant and the complainant can be described as part of the background or mere coincidence. Furthermore, in R v M (M) the complainant engaged in sexual behaviour with the defendant on two earlier occasions four months and three months before the time of the allegation. This court held that the trial judge was correct to reject the defendant’s submission that these facts met the high threshold in section 41(3)(c). In the instant case the first time the defendant alleges consensual intercourse took place was about a year before the act complained of and the second time several weeks afterwards. In both R v M (M) and the instant case therefore there was no sufficient chronological nexus between the events to the alleged events to render the behaviour probative. It follows that cross-examination on this issue was not and would not have been truly probative. For these reasons, in our judgment, the judge was entitled to reach the conclusion that he did and this ground of appeal fails.”

Moreover, in R v Wilson & others [2024] EWCA Crim 1514, this court suggested that when considering whether a refusal of leave to ask questions and/or adduce evidence might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case, under section 41(2)(b), it would be useful to consider whether the disputed evidence has substantial probative value in relation to a matter which is a matter in issue in the proceedings, and is of substantial importance in the context of the case as a whole. In the event that it satisfied this test, then it was likely that a court would be satisfied that a refusal of leave to ask questions and/or to adduce evidence would have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case.

In the present case, although it is of interest to note that none of the matters upon which the appellant seeks to rely was mentioned by him during the course of his interviews with the police, (indeed he asserted that there had been only one occasion when he had had a ‘threesome’ with C1 and Z), and that what he stated in his own Defence Statement appears to have relied upon a mistaken understanding of what Z had said during the course of his interview, we approach our consideration of section 41(3)(c), as required by the subsection, on the basis that what Z stated in his Defence Statement about the subsequent incident is true.

Likewise, we accept that “striking similarity” between that incident and the previous events giving rise to counts 8 and 9 is not required. Moreover, although the fact that the separate incidents occurred subsequent to the events giving rise to counts 8 and 9, and at some distance in time is of relevance, it is not of itself necessarily fatal to a successful application under section 41(3)(c), as there is no temporal restriction as to the other “sexual behaviour” which may be sought to be relied upon.

However, although we accept that there were some similarities between the events giving rise to counts 8 and 9, and the subsequent incident described by Z in his Defence Statement, we do not consider that they amounted to ones which could not reasonably be explained as coincidence. In that regard, we note that whereas the appellant’s evidence was to the effect that during the course of the events leading up to counts 8 and 9, C1 was dancing around a pole, no mention of this was contained in Z’s Defence Statement, which asserted that C1 had bent down and asked him what he thought of her bum. Moreover, whereas the nature of the sexual activity involved in counts 8 and 9, involved penetrative penile sexual intercourse, this was not alleged to have occurred in the subsequent incident, which involved masturbation.

Furthermore, although, as we have already observed, there is no temporal restriction under section 41(3)(c), we are satisfied that the fact that the separate incident involving Z took place after the events which formed the basis of counts 8 and 9, and at a very considerable remove in time, were factors which the judge was entitled to take into account, and in our judgment resulted in there being no sufficient chronological nexus between the subsequent incident and the events forming the basis for counts 8 and 9, so as to render the subsequent incident sufficiently probative in relation to the issue of consent.

In these circumstances, we consider that the judge was entitled to determine that leave to cross-examine C1 about the subsequent incident involving Z should not be granted on the basis that section 41(3)(c) was not satisfied.

Likewise, we consider that the judge was entitled to refuse leave to cross-examine C1 in relation to the two subsequent incidents involving the other two individuals. Although they did allege that C1 had been involved in fishnet pole dancing, neither of them alleged that there was any subsequent sexual activity with C1. Moreover, these incidents were also alleged to have taken place subsequent to the events giving rise to counts 8 and 9, and once again at a considerable remove in time. In any event, as the judge observed, it cannot be properly inferred, from the mere fact that an individual may choose to act in this manner, that they have consented to any subsequent sexual activity with those who are present, or that those present could reasonably believe that the individual would consent to any sexual activity between them.

In relation to the further grounds of appeal, upon which leave is sought, Mr Eissa properly accepted that in the event that we concluded that the separate incident involving Z was alleged to have taken place after, rather than before the events giving rise to counts 8 and 9, then it could not be submitted that this incident had any relevance to the issue of the appellant’s reasonable belief in C1’s consent to sexual intercourse with himself and Z.

As to the third ground of appeal, although in a proper case questions may be asked and evidence given about a complainant’s sexual behaviour, where it is necessary to rebut or explain evidence relating to that behaviour which has been adduced by the prosecution, under section 41(5), we do not consider that it is arguable that this is one of those cases. In this regard, what C1 had said during the course of her ABE interview was limited to a denial that she had previously had a ‘threesome’, and that she had never had any form of relationship with Z. As to the former assertion, this was not in any way negated by the alleged subsequent incident with Z, whilst the latter assertion was so vague as to be largely meaningless. Moreover, C1 did not suggest that she had never engaged in fishnet pole dancing, rather she stated that she was not particularly good at it, and in any event conceded that although she did not have a clear memory of the events which formed the basis of counts 8 and 9, she may have danced around the pole that evening dressed in a lace bodysuit.

In any event, when considering the application made by the appellant for leave to ask questions about these incidents, we agree with the judge that, under section 41(2)(b), the refusal of leave would not have had the effect of rendering unsafe any conclusion of the jury on any relevant issue in the case. In this regard, we note that not only was evidence given by the appellant about the fishnet pole dancing which was alleged to have taken place before the events forming the basis of counts 8 and 9, but C1 conceded that this may have occurred. Moreover, the admitted facts included reference to the fact that Z would have stated that the sexual activity was consensual. In reality, the prosecution evidence arising from the Facebook messages provided an extremely strong case against the appellant in relation to these counts.

In these circumstances, we dismiss the appellant’s appeal against conviction on the ground upon which leave to appeal had been granted by the single judge, and we refuse the application for an extension of time and leave to appeal in relation to other two grounds upon which leave was sought.

As Mr Eissa properly acknowledged, the question as to the admissibility of the further evidence in this case, depended upon the success or otherwise of the ground of appeal in relation to the judge’s ruling concerning the cross-examination of C1, in that the witnesses spoke either to the occurrence of fishnet pole dancing, or to the subsequent incident involving Z. We have in any event considered the evidence de bene esse, but as his appeal against conviction has been dismissed, so too must the application to admit fresh evidence.

The appellant is now 37 years of age. He has no previous convictions, but was cautioned for an offence of threatening behaviour in 2006. There are a number of character references which attested to the more positive aspects of the appellant’s character.

The court had the benefit of a Pre-sentence report dated 22 December 2022, in which it was noted that the appellant continued to maintain his innocence in relation to his offending. The author of the report concluded that the appellant posed a very high risk of sexual violence in intimate relationships.

In her sentencing remarks the judge stated that,

“X, you are 34 years of age. You were convicted by a jury of 21 counts, 19 representing your long-term and substantial sexual, emotional, violent and controlling abuse of [C1], and your rape and attempted rape of [C2], the woman you began a relationship with when [C1] finally ended hers with you.

You successfully invited two other men to assist you in carrying out a particular fantasy of yours, ‘threesomes’, with your necessarily insensible partners because each woman had made it perfectly plain they would not participate willingly: subjecting them to dreadful degradation of rape and attempted rape by other men as you watched, encouraged and participated.

…..

In summary, X, for the decade your relationship with [C1] lasted you subjected her to the most abusive, violent and controlling behaviour, which often descended into very serious, degrading and humiliating sexual abuse. I do not doubt there were times within the relationship that were better if not good and you have two sons together. But [C1] would be hard-pressed to bring those to mind if she was asked given the overwhelming destruction by you of her peace of mind and personality as a result of your persistent and horrific abuse.”

The judge had before her victim impact statements from both [C1] and [C2]. In relation to the former, the judge observed that,

“Your decade long abuse of her has profoundly impacted her in countless dreadful ways. She lost her home, she lost her job. She has post-traumatic stress disorder, nightmares, flashbacks. She lost her self-confidence, all of it. She suffers shame and guilt that she allowed her boys to witness what they did, live how they did for so long. She thought she deserved no better than you. I have no doubt that she will live with the effects for the rest of her life..”

Whilst in relation to the latter, the judge observed that,

“But the impact of your offending against her and that of Y will be substantial and long-lasting. I hope that she will not mind if I do at least acknowledge that she had to leave her hard fought for family home as a result of what you did to her there, because that is an impact that aggravates your offending against her significantly.”

The judge had regard to the relevant sentencing guidelines in respect of the various offences, and in relation to the offences of rape, although individually she determined that the offences of rape would be category 2A offences, with an appropriate starting point of 10 years’ custody and a category range of between 9 – 13 years, she reminded herself of that part of the guidance which indicates that, “Offences may be of such severity, for example involving a campaign of rape, that sentences of 20 years and above may be appropriate.”

The judge concluded that,

“X, you raped [C1] at least eight times. The additional attempted rape of her only an attempt because your accomplice Z on that occasion couldn’t quite manage penetration. You assaulted her by penetration at least 10 times. [C2] was raped by you with Y as your accomplice. Your behaviour is analogous in my judgment to a campaign of rape. It is not the same, but it is analogous. In my view many rapes are not less serious because they are committed against one or two women rather than one rape of three or four and they are certainly not less serious because they are committed on women who knew, trusted and loved you rather than strangers.”

The judge had regard to the mitigation available to the appellant including his lack of previous convictions and the separation from his children. The judge also concluded that having regard to various factors, including the contents of the Pre-sentence report, and the fact that following his arrest in relation to the offences concerning [C1], the appellant went on to form a relationship with [C2] during which he raped her, that the appellant was a dangerous offender.

The judge considered whether the extent of the offending justified the imposition of a sentence of life imprisonment, but concluded that it did not. However, she was of the opinion that a standard determinate sentence of imprisonment, even if it was coupled with a Sexual Harm Prevention Order, would not suffice to meet the risk which the appellant posed, and therefore imposed an extended sentence of imprisonment.

On behalf of the appellant, Mr Eissa, made no criticism of the judge’s determination that the nature and scale of the appellant’s offending amounted to a campaign of rape, nor did he seek to criticise her determination that the appellant was a dangerous offender. However, he submits that, not only was the length of the custodial term imposed too long, but that bearing in mind the court’s ability to have imposed a Sexual Harm Prevention Order, a standard determinate sentence of imprisonment would have sufficed. In this regard, he points out that the appellant is still relatively young, and he will have time to mature over what will inevitably be a relatively long period of imprisonment.

The verdicts of the jury reflected the fact that over a period of about 9 years, and in the context of a coercive and sometimes violent relationship, the appellant had subjected C1 to repeated acts of sexual humiliation, including a number of offences of rape which, on one occasion included encouraging Z to attempt to do so, whilst C1 was incapable of giving consent. Moreover, following the end of his relationship with C1, the appellant formed a new relationship with C2, and once again raped her, and encouraged the applicant to do so, whilst she was incapable of giving consent. These latter offences being committed after the appellant had been interviewed by the police for the offences in relation to C1.

In these circumstances, it was inevitable that the judge would conclude that the appellant was a dangerous offender and that he would be facing a long period of imprisonment. Thus, the only questions which arise are as to the length and nature of the sentence of imprisonment. As to the former, the period of imprisonment had to reflect not only the various offences of rape committed against C1, but also the criminality arising from various offences which he committed against her during the course of their relationship, all of which had had a severe psychological impact upon her, and it would appear adversely affected the children. Moreover, the period of imprisonment also had to reflect the further criminality arising from the offences he committed upon C2.

In these circumstances, we consider that the judge was entitled to have regard to that part of the sentencing guideline for offences of rape, which refers to the type of offences which are of such severity as to justify periods of imprisonment of 20 years and above, and that whilst the period of imprisonment which was imposed upon the appellant was of considerable duration, we consider that it was justified by this very serious catalogue of sexual and other offences committed by the appellant against the two complainants.

As to the nature of the sentence of imprisonment, whilst we accept that the appellant is still relatively young, and he will have time to reflect upon his conduct whilst in prison, we note that the appellant was not dissuaded from committing offences of rape against C2 , following his arrest in relation to the offences which he committed against C1, and that he continues to deny his guilt in relation to all of his offending. In these circumstances, given the entrenched mindset of the appellant, we consider that, in order to protect members of the public from serious sexual harm, the imposition of an extended sentence of imprisonment was justified in this case.

Accordingly, we do not consider that there are any arguable grounds of appeal concerning the total sentence imposed in this case, namely an extended sentence of 30 years, comprised of a custodial term of 25 years and an extended licence of 5 years.

However, the Registrar has brought to our attention, the fact that in so far as the extended sentences imposed in relation to counts 2, 3, 13, 15, 16, 17, 18 and 19 are concerned, neither “the earlier offence condition” nor “the 4 year term condition” under section 280 of the Sentencing Act 2020, was met, such that the court had no power to impose an extended sentence in relation to those counts.

Therefore we will grant the extension of time and limited leave to appeal against sentence so as to quash the extended sentences imposed upon the appellant in relation to those counts, and to substitute sentences of imprisonment in relation to those counts of the same length as the custodial term which had been originally imposed, namely count 2, 1 year’s imprisonment, count 3, 1 year’s imprisonment, count 13, 1 year's imprisonment, count 15, 18 months’ imprisonment, count 16, 18 months’ imprisonment, count 17, 3 years’ imprisonment, count 18, 3 years’ imprisonment and count 19, 3 years' imprisonment.

Otherwise, the sentences imposed by the judge remain, such that the total sentence is an extended sentence of 30 years pursuant to section 279 of the Sentencing Act 2020, comprised of a custodial term of 25 years and an extended licence of 5 years.

In addition to the applicant’s own grounds of appeal, we have also considered the various items of correspondence and other documents sent to the Registrar, both from the applicant and his current partner.

Firstly, the applicant asserts that he now has alibi evidence in relation to 9 April 2020, which shows that he did not meet the appellant at the Galleries in Washington, nor did he later go either to his house, or to C2’s house.

In support of these assertions, a letter, apparently from his previous employer, has been produced confirming that the applicant was at work between 07.25 – 16.00 on 9 April 2020. There is also an email, apparently from the owners of the public house where the appellant stated that they had gone for a drink, confirming that the public house was closed on 9 April 2020.

Furthermore, it is suggested that Facebook evidence is available to show that the applicant’s primary location on 9 April 2020, was at the applicant’s home address, and that there is a “technology TIMELINE” which shows that on 9 April 2020, the applicant’s activities end at 00.57.

The difficulties with this further evidence, assuming it is correct, is that not only would it not have precluded the applicant from meeting up with the appellant at the Galleries in Washington at some point during the day, but the prosecution’s case was that the appellant and the applicant only arrived at C2’s house in the early hours of the morning; a matter which was confirmed by DC Stewart in the letter which she sent to the applicant and his current partner dated 12 October 2022, in which she stated that phone records indicated that they did not attend C2’s home until after 01.14 on 10 April 2020.

Furthermore, both in interview with the police, and more particularly during the course of his evidence at trial, the applicant admitted that he had met up with the appellant at the Galleries in Washington on 9 April 2020.

Secondly, the applicant asserts that since giving evidence at trial, the appellant has stated that another individual rather than the applicant went with him to C2’s house on 9 April 2020. No witness statement to this effect has been provided by the appellant, and not only is it entirely contrary to the evidence which the appellant gave in his police interview, his Defence Statement and in evidence at trial, but the appellant’s mother gave evidence that she saw and spoke to the applicant whilst he was at the appellant’s home on the evening of 9 April 2020.

Thirdly, the applicant asserts that the appellant has informed him that prior to the identification procedure in which C2 identified the applicant as the second male at her home on 10 April 2020, C1 had showed C2 a photo of the applicant. Once again there is no witness statement to this effect from the appellant or any other evidence to establish that this occurred. However, even if this was true, there was already evidence before the jury that, prior to the identification procedure, C2 had seen a video clip of the applicant, in relation to which the judge provided the jury with legal directions warning of the possibility of mistaken identification.

Fourthly, the applicant suggests that he was incompetently represented by his legal team, and in particular they permitted evidence of his previous convictions to be placed before the jury. In this regard, as the applicant wished the jury to know that he had no previous convictions for sexual offences, it was prudent for the jury to be told about his previous convictions for other offences, to allay any concerns which the jury might have had that the applicant had previous convictions for more serious offences. In any event, the judge properly directed the jury to ignore those convictions, and instead directed the jury that the applicant’s lack of previous convictions for sexual offences may make it less likely that the applicant had committed the offence of rape.

Fifthly, it is suggested that the applicant is dyslexic and should not have been interviewed by the police without an appropriate adult being present, such that his interviews should have been excluded from the trial. The difficulty with this ground is that not only is there no evidence before us that the applicant suffers from any learning difficulty to the extent that an appropriate adult would have been required, but having waived privilege, it is apparent that this was not raised by the applicant with his legal team, nor is there any evidence that they ought to have been aware of it.

In reality, the evidence implicating the applicant as being present with the appellant at C2’s house in the early hours of 10 April 2020 was extremely strong, and for the reasons which we have sought to explain none of the grounds of appeal raise arguable concerns in relation to the safety of the applicant’s conviction.

Accordingly, the renewed application for an extension of time and leave to appeal against conviction is refused, as is the application for leave to admit fresh evidence as, amongst other matters, it is apparent that the evidence does not afford any ground for allowing the appeal.

The applicant was 34 years of age at the date of the offence of rape, and is now 39 years of age. The court had a number of character references from those who knew the applicant, and also a Pre-sentence report dated 30 September 2022, which noted that the applicant accepted no responsibility for his offending. It went on to detail that the applicant had held down a number of jobs, and that he had had a long-term relationship, as a result of which he had two children. Although it was noted that he had no previous convictions for sexual offences, in view of the nature of the index offence and his attitude toward it, he was assessed as posing a high risk of committing contact sexual offences.

In her sentencing remarks, the judge observed that,

“Y your culpability is significantly less than your co-defendant’s, but it is still a 2A offence. Harm is 2 because [C2] was particularly vulnerable because she was insensible and unconscious and has suffered (inaudible) and you must have known that. Culpability A because you were one of two men acting together. The planning, I am satisfied, was all X’s. The offence occurred only because X arranged it. The starting point is one of 10 years with a range of nine to 13 years. There is the sole aggravating factor of the location because you raped her in her own home, although in the circumstances I am satisfied that that has taken place – taken account for harm.”

The grounds of appeal concede that the judge was entitled to determine that the offence of rape was a category 2A offence under the relevant sentencing guideline. However, it is submitted that the mitigation available to the applicant, together with his role in the offending, should have resulted in a shorter sentence being imposed on him.

As the judge pointed out, a category 2A offence, under the relevant sentencing guideline for rape, has an appropriate starting point of 10 years’ custody with a category range of between 9 – 13 years. The fact that the offence took place in C2’s home was an aggravating factor, and C2 undoubtedly suffered a considerable degree of psychological harm as a result of the offence. These matters entitled the judge to increase the sentence within the category range, before reducing it to take into account not only his role in the offending, but also the applicant’s personal mitigation.

Having carried out that exercise, we consider that the figure reached by the judge, namely 9 years adequately took into account those reducing factors, and consider that there are no arguable grounds that the sentence imposed upon the applicant was either manifestly excessive or wrong in principle. Accordingly, the renewed application for an extension of time in which to apply for leave to appeal against sentence is refused.