R v Frazer Giscombe

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those 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 is an application for leave to appeal against conviction which has been referred to the full court by the single judge.

On 1 July 2024, in the Crown Court at Nottingham, the applicant was convicted of two counts of rape (counts 1 and 2).

On 18 October 2024 before the same court, the applicant was sentenced to an extended determinate sentence of 16 years, comprising 12 years' custody and an extended licence period of 4 years. A sexual harm prevention order was also made for an indefinite period and a restraining order was imposed until further order.

The complainants were, in August 2021, two 15-year-old friends. On the night of 5 August, they had been out in Nottingham to celebrate a birthday and for that purpose had been drinking. Towards the end of the evening, they met the applicant and his brother (it was common ground that they did not before that know each other), both of whom had bought alcohol.

The two friends went to the applicant's home, where they had more to drink. The applicant's brother was there also. They later left the applicant's home in a taxi soon after midnight. The police were called after that, and the girls were medically examined and DNA swabs were taken. C1, as we shall call her, showed evidence of recent vaginal penetration.

The applicant, having been arrested, exercised his right to silence when interviewed by the police, save to say that he was shocked by the allegations and that he had not raped either C1 or indeed C2, as we shall call the second complainant.

The prosecution case was that the applicant, on the contrary, had raped both girls and in circumstances necessarily where neither of those girls consented to what happened.

To prove the case, the prosecution relied on various matters.

First, there was the evidence of C1 who gave an ABE interview on 7 August 2021. She said that, when they had gone back to the applicant's house, things had started well, but then the applicant had tried it on with her, saying, "You know you want it". She went on to explain that C2 had got dizzy and went to lie down. C1 went to where C2 was. The applicant went with her and raped her. He also bit her. When he left her, she explained, she (C1) then became aware that the applicant was on top of C2 whom she thought was asleep.

Secondly, there was the evidence of C2, who gave an ABE interview two days later on 9 August 2021. She stated that, after going to the applicant's house, there had been drinking, music and dancing, but she began to feel tired and dizzy and so went to lie down in a bed where she fell asleep. When she woke up, her clothes had been removed. She stated, as she put it, that "the driver of the car" was having sex with her.

Thirdly, there was also evidence about the girls and the state that they were in. Thus, the taxi driver said that one of the girls was crying and holding her shoes and kept saying that she felt dirty and that she had been raped. He explained that he offered to take them to the police but they wanted to go to a friend's house. At that friend's house, the girls could not get in and a neighbour was awakened by them. One of the girls, the neighbour explained, was very upset and saying that she had been raped and was bleeding. There was, furthermore, evidence from the police who attended shortly after 2 am. That evidence entailed a description of the girls as being in distress.

Fourthly, there was forensic evidence which showed the presence of the applicant's semen on swabs taken from C2's vagina. It showed DNA present in the area of C1's vaginal opening that was consistent also with the applicant's DNA. It also showed a mixed DNA profile consistent with the applicant's DNA on the outside of C1's breast and the presence of DNA consistent with that of the applicant in the low vaginal swabs from C1.

The defence case at trial was that the applicant did not engage in any sexual activity with C1 and that he had consensual vaginal sex with C2. The issue for the jury, accordingly, was whether, first, the applicant penetrated the vagina of either complainant with his penis; secondly, whether the complainants consented; and thirdly, whether the applicant reasonably believed that either of the complainants consented to the penetration.

The application for leave to appeal, at least as framed in writing and as explained orally today, focuses on what might be described as a somewhat unfortunate occurrence at trial. This is the fact that C2 gave evidence and indeed was cross-examined initially without having been sworn. What happened, rather, was that her ABE interview had been edited in such a way that it did not include her being sworn or asked to affirm. It was then played in that form to the jury on the first day of the trial. The court then adjourned overnight with cross-examination taking place the following morning (the second day of the trial). After this, C1 proceeded to give her evidence in the same manner, namely evidence in-chief by way of an ABE interview and cross-examination in court behind screens. This all happened (i.e. C2 first giving evidence and then C1 giving evidence) without anybody noticing that C2 had not been sworn or asked to affirm. We note that no such issue arises in relation to the evidence therefore that C1 gave at trial.

The position in relation to C2 only occurred to defence counsel, Mr Shelley, who appeared at trial and appears before us also today, in the evening of the second day of the trial. The next morning (the third day of the trial), quite properly, Mr Shelley drew the omission to the attention of prosecution, Mr Dee, who likewise appears before us today. He agreed with Mr Shelley that, in the circumstances, C2's evidence was inadmissible. The matter was then raised with the Recorder, both Mr Shelley and Mr Dee inviting the Recorder, in such circumstances, to discharge the jury and essentially allow the trial to start again.

The Recorder sensibly asked both counsel to look into the law, which prompted counsel to draw the Recorder's attention to the Youth Justice and Criminal Evidence Act 1999, specifically section 55, which, under the heading "Determining whether witness to be sworn", provides as follows at subsection (1):

Subsection (2) then goes on to say this:

The Recorder's attention was also drawn to section 56, headed "Reception of unsworn evidence", which is in the following terms:

It was Mr Shelley's submission before the Recorder - Mr Dee having by that stage, and in the light of sections 55 to 56, changed his position - that since C2 was at the time of trial over the age of 14 and was both competent and permitted to swear on oath or to affirm, she had not been entitled to give her evidence unsworn. Put differently, Mr Shelley's point was that, had it been suggested that she should be allowed to give unsworn evidence prior to her starting her evidence, the Recorder would inevitably not have agreed to this. Mr Shelley submitted, furthermore, that section 56(5) has no application in the present case because that is a provision which only applies where the court has ordered, under section 55(2), that a witness may give evidence without being sworn, and that is not what happened in the present case. Instead, a mistake was made and C2 gave evidence which was unsworn without anybody noticing that this was what was happening.

The Recorder, having heard these submissions on the part of Mr Shelley, gave a written ruling in which he rejected the submissions. He said as follows:

The Recorder, accordingly, dismissed Mr Shelley's application that the jury be discharged and gave directions as to the way forward as follows:

This was in the face of opposition from Mr Shelley, who submitted that, having exposed flaws in her evidence under cross-examination the previous day, it would lead, as Mr Shelley put it in his Advice on Appeal, to "a multitude of incorrect conclusions by the jury that each of the inconsistencies exposed under cross-examination were now being neutralised by either the Recorder or prosecuting counsel". Mr Shelley also submitted that, in any event, the wordings of the oath and affirmation are forward looking, not retrospective, and so it would be inappropriate to ask C2 to take the oath or to affirm after evidence had already been given by her.

C2 was, in the event, recalled and sworn. When asked by the Recorder if she had been telling the truth in what she had said the previous day, she said that she had indeed been telling the truth. Mr Shelley then proceeded to put his points to C2 again, albeit in summary form. He went on also to suggest to C2 that, in saying that she had told the truth the day before, having now been sworn, she was, by making that statement again, not telling the truth.

In the event, as is already apparent from what we have stated, the applicant was convicted.

The submissions made by Mr Shelley before the Recorder have been repeated before us, although, on reflection, Mr Shelley did not press before us today his more formalistic submission concerning the applicability of section 56(5). Rather, Mr Shelley submits that, as defence counsel, in the face of the solution offered by the judge as to the way forward, he was forced into a position which was unfavourable to the applicant's case, in that he was left with no option other than again to put to C2, albeit in summary form, the fact that she was mistaken in the identification of her rapist but on this second occasion in circumstances where, Mr Shelley suggests, the emphasis was lost and the jury would have been left with the impression that the defence were "now scrabbling around, with C2 giving answers furthermore which were more resolute and definite than they had been the first time around". We will return to this aspect shortly.

First, however, and for completeness if nothing else now that Mr Shelley has explained that he does not maintain his submission as to the applicability of section 56(5), as to sections 55 and 56 of the 1999 Act, there is no doubt that this is not a case in which section 55(2) is applicable. C2 was over 14 at the time of trial and had sufficient appreciation as to the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. Indeed nobody, whether the Recorder or counsel, thought at the time that section 55(2) was applicable for the simple reason that nobody realised that C2 had not taken the oath or affirmed. Had they done so, nobody would have thought to invoke section 55(2); rather, C2 would have been sworn or would have been asked to affirm.

The question, in such circumstances, as the Recorder noted, is whether section 56(5) has any application, but the first thing to note in this regard is that section 56(5) is concerned with what the Court of Appeal should do in the event that a witness has given unsworn evidence when he or she should not have done so because he or she falls within section 55(2), namely is a person, as previously stated, who is over 14 and has sufficient appreciation as to the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath or affirming. Given that section 56(5) concerns the position that pertains before the Court of Appeal, it was not strictly speaking a matter for the Recorder to address that provision. We can understand, however, why the Recorder had regard to it in deciding what was the appropriate way forward in relation to an unusual and indeed somewhat difficult situation.

That said, and put simply, the position before the Recorder was straightforwardly this: C2 had given unsworn evidence in circumstances where she was not able to do so and nothing in section 56(1) - (4) means that that unsworn evidence was admissible since those subsections are concerned with the case where a witness "(by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath ..." (see section 56(1)(b)).

Although strictly speaking not a matter for the Recorder, we need nonetheless to decide whether, as Mr Shelley submits before us and as he submitted before the Recorder, section 56(5) applies only in circumstances where a witness has been permitted to give unsworn evidence under section 55(2). We, as previously mentioned, address this issue notwithstanding that, on reflection, Mr Shelley does not maintain the point.

The issue arises because section 56(5) does obviously now apply given that the matter is now before the Court of Appeal. Accordingly, although we note what the Recorder had to say concerning the appropriate construction to be afforded to section 56(5), we are not as such reviewing the correctness of what he had to say in his ruling for the purposes of the present application for leave to appeal against conviction.

We have not found the issue concerning the applicability of section 56(5) particularly straightforward. Ultimately however, and as it happens in agreement with the approach of the Recorder and as Mr Shelley now himself accepts, we have concluded that section 56(5) is not restricted in its scope to a case where the court has decided pursuant to section 55(2) that a witness should be permitted to give unsworn evidence. This is because nowhere in section 56(5) is it stated that it is only if there has been such a decision pursuant to section 55(2) that section 56(5) applies.

Against this is the fact that section 56 appears to follow on from section 55, and so it would make sense, reading sections 55 and 56 together, if section 56(5) were only to be regarded as applying to a case covered by section 55(2). However, it should be noted that, whereas sections 56(1)-(4) are also expressly linked to section 55(2), in the sense that they are stated, in effect, only to apply in the event that section 55(2) is applicable and a witness has given unsworn evidence pursuant to that provision, section 56(5) does not, as previously mentioned, state that it is only applicable if section 55 has operated in the particular case. True it is that section 56(5) refers at the end to section 55(2), but it does not do so by stating that section 56(5) only applies where section 55(2) has been invoked; instead it refers to the witness being "a person falling within section 55(2)", in the sense that, as the brackets make clear, the witness "should accordingly have given his evidence on oath".

We note in this connection that Blackstone's Criminal Practice 2026 at paragraph F4-31, in referring to section 56(5), does not suggest that it only applies where there has been a direction pursuant to section 55(2).

We should observe also that we agree with the Recorder's view (expressed in paragraph 15 of his ruling) that section 56(5) reflects a change from the provision before the coming into force of the 1999 Act. Thus, in R v Sharman [1998] Cr App R 403, as in the present case, an ABE interview was played and the complainant cross-examined without anybody noting that the complainant had not been sworn. The Court of Appeal decided that, in such circumstances and as the Recorder noted in his ruling, the evidence given was inadmissible and so that the convictions were unsafe.

In so doing, the Court of Appeal followed the approach adopted in an earlier Court of Appeal case, namely R v Simmonds (unreported April 3, 1996), which Mantell LJ inSharman described in this way at page 409E-F:

Evans LJ explained in Simmonds, as appears from what Mantell LJ in Sharman went on to say at page 410-C, that:

Be that as it may, the position now being covered by the 1999 Act, then, applying section 56(5), it is clear that the fact that C2 initially gave unsworn evidence in the present case cannot amount to the only reason why an appeal should succeed; in other words, the Court of Appeal should consider the case in the round rather than focus exclusively on the fact that a witness has given unsworn or unaffirmed evidence when that witness ought not to have done so.

Mr Shelley, as we have previously observed, acknowledges this before us today.

In coming on to consider the position in that way, we should say straightaway that the fact that C2 was sworn on the third day of the trial after she had completed her evidence - at least, in the event, her initial evidence the day before - does not mean that the evidence on the second day amounts to sworn evidence; it clearly was not because, when she gave that evidence, she had not yet been sworn. It is for this reason that section 56(5) applies at all. That said, it should not be overlooked that, although we have not seen the transcript of the cross-examination that took place on the third day after she had been sworn, when she gave evidence during that cross-examination, she was indeed then giving sworn evidence. This therefore is not a case where the only evidence that C2 ever gave at the trial was unsworn evidence.

Nor, importantly, was C2's evidence the only evidence that was before the jury since, as Mr Dee explains both in the Respondent's Notice and orally, there was other evidence to support the case against the applicant - this, furthermore, in circumstances where, as Mr Dee also points out, C2 was a weak witness for a number of reasons: first, she was heavily intoxicated at the time of the incident, a urine sample taken from her having a blood alcohol equivalent reading of 205 mg/dl in circumstances where the legal driving limit is 80; secondly, she was asleep when the incident happened and awoke in the middle of it; and, thirdly, she had no idea what had happened to C1. In contrast, C1, who was awake and had an equivalent blood alcohol reading of a mere 59 mg, gave evidence in relation to both rape counts.

As to the other corroborative evidence, there was the forensic examination which showed the presence of the applicant's semen inside C2's vagina. This showed that she was mistaken when she initially stated that it was the applicant's brother who had raped her. The forensic examination also showed the presence of DNA consistent with that of the applicant in the low vaginal swabs taken from C1, and so consistent with him having sexual intercourse with her. Furthermore, C1 had injuries consistent with her account of the incident, namely marks consistent with being bitten, bruises which were photographed and a hymenal tear consistent with recent sexual intercourse. C2 also had bruising. Moreover, there was evidence of immediate distress and a complaint of rape to the taxi driver, as well as to another witness, Prince Acha. Lastly, there was also the fact that the applicant did not give an account in interview, and nor did he give evidence, from which the jury were entitled to draw appropriate inferences should they have chosen to do so.

We are satisfied, in the circumstances, applying section 56(5) and viewing the matter in the round, that there was ample evidence in this case on which the jury could convict the applicant even putting C2's unsworn evidence to one side.

The remaining question is whether the applicant's conviction should be regarded as unsafe given the Recorder's decision to allow C2 to be sworn after her cross-examination had finished and Mr Shelley's submission that this would have given the jury a poor impression of the defence case.

We acknowledge that this is what also happened in Simmonds, and in that case the appeal was allowed. However, to repeat, this was before the introduction of section 56(5).

We are unpersuaded by the submissions advanced by Mr Shelley before us today for a number of reasons.

First, we consider it unlikely that, the jury having had it explained to them why C2 was being recalled, the jury would then have taken the view that by Mr Shelley revisiting some of the matters raised with C2 in the initial cross-examination, there was a lack of confidence on the defence's part as to the progress that had been made the day before when questions had been put to her in that initial cross-examination. It is rather more likely, in our assessment, that the jury would have understood why Mr Shelley was doing what he was doing, which was that there had been a slip-up as regards the taking of an oath the day before for which Mr Shelley bore no more responsibility than anybody else.

Secondly, if C2 became more resolute and definite the second time that she was cross-examined, as Mr Shelley suggests was the case, it does not follow that the jury would have been any more convinced by that evidence than they would have been by the evidence that she gave when first cross-examined. If anything, it seems to us that the jury might well have asked themselves how it was that her evidence had become more convincing the second time round and concluded that what she was saying should be viewed with some circumspection.

Thirdly, we have no reason to doubt what Mr Dee has to say about the jury not being told that they could disregard any of the answers that she gave in cross-examination or that they could give them less weight because an oath was not administered prior to her being cross-examined.

Fourthly, the Recorder was in a good position to form his own assessment as to whether C2 had taken her responsibilities seriously when first being cross-examined not under oath. As he explained in the passage to which we have previously referred, he was clear that there were no "reasonable grounds for concluding that her evidence may have been different in any significant way, or at all, if the oath had been administered before she started giving evidence".

Lastly, again as Mr Dee points out and we do not understand to be disputed, in closing the case, Mr Shelley himself relied heavily on the inconsistencies in C2's evidence, both within what she had said at various times during the progress of the investigation leading to the trial and in the evidence that was subsequently given. It follows that the jury were being invited by the defence in closing to take into account evidence given by C2 which was unsworn evidence, namely the evidence given in her initial cross-examination. There is no reason to suppose that the jury would have declined that invitation on the basis that C2 had not at that stage been sworn or affirmed.

Standing back and applying the approach described in section 56(5), we conclude that the applicant's convictions are safe. Accordingly, although we grant leave to appeal against conviction, we nonetheless dismiss the appeal.