R v MIK

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 the 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 that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. In this case the complainant will be referred throughout as "C1".

On 8 December 2023 the applicant was convicted in the Crown Court at Newcastle of rape, contrary to section 1(1) of the Sexual Offences Act 2003. This allegation formed count 4 on the indictment. There was a further count (count 8) of which he was convicted. That was a count of engaging in controlling and coercive behaviour in an intimate or family relationship, contrary to section 76(1) and subsection (11) of the Serious Crime Act 2015. The applicant was acquitted of three other counts of rape (counts 2, 3 and 5), two counts of assault by penetration, contrary to section 2 of the 2003 Act (counts 1 and 6) and an offence of sexual assault, contrary to section 3 of the 2003 Act. The applicant was sentenced to an extended determinate sentence passed pursuant to section 279 of the Sentencing Act 2020, of 12 years comprised of a custodial term of 8 years and an extended licence period of 4 years for the offence of rape under count 4 and a concurrent sentence of 4 years under count 4 and a concurrent sentence of 4 years under count 8 for the offence of controlling and coercive behaviour.

In earlier proceedings before this Court the applicant has had his application for leave to appeal against sentence dismissed. The applicant also applied for leave to appeal against conviction and all but one of the grounds of that application have been dismissed. One ground remains which is put before us for determination, and this ground relates only to the conviction of the application under count 4 for rape.

The facts of the case against the applicant are as follows. The applicant had been in a relationship with C1 (his partner) for over 20 years. The prosecution contended that throughout the relationship the applicant had been controlling and coercive. He prevented C1 from seeing her family and amongst his controlling behaviour was the installation of cameras in her workplace to monitor her movements as well as threatening to kill their dog and assault men who she was seen to talk to.

Count 4 related to incidents when the prosecution alleged that the applicant had anally raped C1. There was evidence from C1's family and friends that they had witnessed violent behaviour between them and seen C1 with a black eye. Her mother gave evidence that the applicant had at times rung her to ask her for help with C1. A paramedic gave evidence on her contact with C1 and her concerns for her. A clinical lead gave evidence that C1 was diagnosed with ASD.

In particular, the prosecution relied upon the evidence of C1, obtained by means of two ABE interviews. In the interviews, mostly in the second interview, C1 described the applicant subjecting her to anal sex (to which she did not consent) and at least initially before her will was broken she told she did not consent or agreed to. It was this evidence which amounted to count 4 which was a multiple-incident count.

C1 was cross-examined about this in a section 28 procedure, and she explained that she had not told the police the totality of her account in the first interview because she had been embarrassed and ashamed about disclosing that she had been raped. She did not report any of her allegations to the police because she was scared of the applicant.

In support of his defence the applicant gave evidence and this accorded with the account that he had given to the police in interview - that all of the sexual activity between him and C1 was entirely consensual. He said that C1 had regularly visited him in prison and sent him sexually explicit images of herself as well as letters showing a loving relationship between them. The applicant attributed C1's behaviour to her autism. The applicant also relied upon numerous contacts which C1 had had over the course of time with the police and other professionals, during which she had made no mention of sexual abuse at all. The defence also relied upon a psychologist who had assessed C1 and who had asked if there had been any sexual abuse in the relationship and she answered "no".

Evidence was given by the applicant's aunt with whom the applicant and C1 had resided from time to time, who explained that she had not been aware of any arguments during phone calls between the applicant and C1 and referred to allegations that C1 had made against other family members.

In the light of the evidence the issue for the jury was whether C1 had consented to the anal penetration and also whether or not the applicant was aware that she did not consent. This was what formed the subject matter of count 4. For the purposes of this application, we have concluded that we can accept the evidence which has been provided in the context of the application and determine the appeal on the basis that it forms the accepted evidential basis.

The ground of appeal which is before the Court relates to what is contended to be the discovery of fresh evidence. That, it is said, is relevant to the issue of consent and the applicant's belief in consent and which would have formed the subject matter of cross-examination of C1 if the matter were to be retried.

After leave to appeal was refused on the papers in early December 2024, it emerged that a mobile phone which had been used by the applicant had been discovered at his aunt's address when it was being cleared and where the applicant and C1 sometimes stayed, as has already been observed. The phone was downloaded and it contained messages which it is contended were between the applicant and C1, coming from a period of around a week in October 2021. It was seen that the messages arose following an incident in September 2021 when C1's sister had seen C1 with a black eye. The police had been notified and the applicant had been arrested. The messages are said to be shortly after the applicant was released from police custody.

The messages which are in particular relied upon by the applicant are as follows:

These messages appear within conversations and in one of the conversations the applicant refers to an occasion when C1 shoved him off her and she ran to the bathroom to shave and wash herself. C1 also refers to "never refusing sex" with the applicant and says "I apologise for never refusing sex. You're my husband. I never thought I'd have to apologise for that."

There is evidence from the applicant's aunt explaining how she came to leave the property and her sister who discovered the phone in the bedroom that the applicant and C1 used to sleep in. When the phone was switched on, as already noted, the messages were discovered. The applicant has provided a witness statement in relation to his knowledge of these texts:

Applications for the admission of new material on appeal are governed by section 23 of the Criminal Appeal Act 1968 which provides as follows:

In the case of R v Beresford (1972) 56 Cr App R 143, the following was observed:

In the case of R v Pendleton [2001] UKHL 66 at [10], Lord Bingham emphasised that:

In [19] Lord Bingham set out the test for the Court of Appeal as follows:

In the case of R v Erskine and Williams [2009] EWCA Crim 1425 at [39], having set out the terms of section 23 of the 1968 Act, Lord Judge LC observed as follows:

In the case of R v Lundy [2013] UKPC 28 the Privy Council considered these questions in the context of the law of New Zealand and offered the following observation in the Board's judgment which was given by Lord Kerr:

In respect of the question as to the impact of the new evidence on the safety of the conviction and the possibility of a miscarriage of justice, Lord Kerr cited the passage above from Pendleton which, as can be seen, emphasises the need for the appellate court to recognise the primacy of the jury's role in determining whether an accused is guilty whilst deprecating speculation about the extent to which new evidence would have affected the minds of jurors. Lord Kerr concluded that:

In the present case the respondent accepts that on their face, albeit incomplete, the texts appear to be credible but contends that the evidence is not fresh evidence. There is not a reasonable explanation for the failure to adduce the evidence at trial. When his case was being prepared it was incumbent upon the applicant to advise of the need to find the phone and for it to be examined. The respondent also contends that it is necessary to consider the strength of the evidence and potential impact upon the safety of the conviction. When the entire conversations are considered they in fact arise in the context of the allegations which the applicant regularly made about C1's infidelity. There was evidence that C1 was accused by the applicant of infidelity and then when she denied it, she was compelled by violence from the applicant to admit her infidelity. Individuals who are mentioned in the messages also featured as people that the applicant had accused C1 of being unfaithful with. The lies she told in relation to allegations of infidelity were already the subject of assessment in the trial.

On the other side of the question the applicant submits that reasonable diligence was used in order to find the phone. The applicant was in custody for significant periods prior to the trial and whilst on bail was on occasions at the other end of the country from Newcastle. It is submitted therefore that the applicant could not have been expected of his own volition to have found the phone.

Further submissions are made that in response to applications for disclosure, bearing in mind that C1 had the same number on her mobile phone throughout, there was a failure on the part of the prosecution to properly run to earth the messages which would have been received on her phone. The applicant says that these messages were important. They bore upon the issue of C1's credibility and related to the allegation that she was lying in her evidence, and in particular, in respect of count 4, lying about the issues pertaining to consent. The text in relation to refusing sex was of particular pertinence to both the question of whether or not C1 consented to anal sex but also the position of the applicant and whether he had a reasonable belief in consent. The text relating to her preparing for sexual conduct were also germane to the defence which the applicant had raised. The submission made on behalf of the applicant is that these texts provide important and independent contemporaneous context for the allegations which the jury were trying.

Having considered the evidence and the submissions which have been made, we are not satisfied that in this case the appellant has properly established that this material could not have been obtained with reasonable diligence on his part such that it could be presented to the trial. The phone in question was known about and it was, prior to his arrest, known to him. It was also known to him at times when he was at large prior to him being charged with the sexual misconduct offences and remanded in custody. In the sense that it was in the premises which he had occupied with C1, it was in his possession. It was not suggested in his evidence, nor could it be suggested, that he did not read the messages; indeed they were received by him and in that sense he was fully aware of them. In fact on many occasions he replied to them.

We are not persuaded that the fact that the applicant was taking drugs or that he had a number of phones which were regularly rotated has any significant impact on this assessment. It is very clear from the material that the applicant was concerned about finding text messages which might assist his case. But the onus of finding them was not exclusively on the prosecution. He also needed to exercise reasonable diligence on his own behalf in order to find them. In this case, in truth, all that was required was for the applicant to ask his solicitors to ensure that there were no phones left at his previous lodgings with his aunt or indeed any other previous address which he had occupied during the course of the period in relation to which he had been charged. It seems that in that respect he did nothing at all about attempting to ensure the phones which had been in premises occupied before entering custody were located in case they had useful material upon them.

We accept that there may well have been problems with the disclosure exercise which was undertaken by the prosecution in this case, in particular in the context that we have been provided with, namely C1's phone number did not alter during the course of the period of these events. However, that is not of assistance to the applicant. As is made clear in the authorities, and as we have just made clear, the onus in respect of these matters is not simply placed upon the prosecution but also placed upon a defendant to make the necessary preparations to ensure that his trial is prepared.

It is necessary for us in the light of the authorities not simply to leave our consideration of the case at that stage because even if the evidence was not fresh (to use the language of the authorities), it is also appropriate for us to consider whether or not in any event it is material which ought to have been placed before the jury so as to preclude a miscarriage of justice. We therefore address the question of whether this evidence might reasonably have led to an acquittal of the applicant or might reasonably have affected the jury's verdict. In this connection it is important to appreciate that this examination must be case specific and directly related to the facts of the case. The application is put on the basis that the messages would have been relevant to count 4 (the multiple-incident count of rape), on the basis that this allegation was essentially the word of C1 against that of the applicant. The messages are not pertinent, it is submitted, merely to the count of controlling or coercive behaviour as there was other evidence which could support that charge. The applicant contends that for the reasons which we have already rehearsed the messages bear upon C1's credibility and also the defence of the applicant. She describes herself as lying in the messages. The messages were also relevant in relation to her preparations for sex and her never refusing to have sex with the applicant.

In our view, these messages need to be put in the context in which they arose. They were sent in the aftermath of an incident in September 2021, as has been set out above, when C1's sister had seen her with a black eye and her sister had told the police leading to the applicant being arrested. C1 then told the police that she had fallen against a kitchen door and that this had caused the injury. Her sister gave evidence that the applicant had admitted that it was him who had hit her. In her evidence C1 said what she told the police was a lie and that she told the police what she did because she was frightened of the applicant and she wanted to protect him. She accepted that she had told the police she could not be without the applicant and a police officer gave evidence that when she attended the address that C1 was very emotional and upset and was blaming herself. She had denied to the police officer that the applicant had ever been violent towards her and kept saying it was her fault. Later, C1's sister said she had received phone calls from C1 asking her to withdraw the statement against the applicant in relation to this incident. In one call she said the applicant spoke to her, and said if she did not withdraw the statement things would get worse. The applicant accepted that there was an incident when C1 had got hurt but said this was all an accident. He had not confessed to hitting C1 to her sister nor did he tell her to withdraw her statement. The jury needed to resolve these conflicts but a number of points emerge, in our view, from the evidential context in which the text messages were written which are pertinent to the arguments in this case. Firstly, the jury had in the trial evidence that C1 was giving contradictory accounts including to the police in relation to the applicant's violent conduct. On her own account she had told lies to the police and her evidence was inconsistent with the account that she gave at the time of the incident. The messages in which she says that she has told lies add little if anything of utility to the material that was already before the jury in relation to inconsistencies in C1's evidence and the lies she told at this time. In her submissions before us this morning, Ms Hall has drawn attention to the distinction between these texts and perhaps the behaviour following the incident of the black eye, namely that the lies told in the context of the black eye incident were told, as C1 said, in order to protect the applicant. In our view, whilst they were said to be for a different purpose, that does not affect the forensic utility of these messages which in truth added little to the picture as to the inconsistencies in C1's evidence and the fact that she had on occasions told lies.

It is however necessary to consider the text messages in context. Secondly, by way of an example, the text about every lie being "like a cancer" is a text which arises in response to the applicant in a conversation about C1's alleged infidelity, an issue about which the jury were fully sighted. They knew that C1 had lied about those issues, she said because she was threatened and pressured by the applicant to admit that she had been unfaithful. Thus these messages again added little to the understanding of the jury in relation to these matters. They all arose in the context of arguments about infidelity and arguments which were then exacerbated by C1 having been forced to tell lies about whether or not she had been unfaithful.

Thirdly, in relation to the text about not refusing sex with the applicant, this text arose again in the context of a wider conversation between the applicant and C1 in which the applicant was becoming jealous and accusing C1 of flirting with other men and threatening to return to prison. During the course of that exchange, he says:

In context therefore, the text which is relied upon by the applicant is a sarcastic response to the applicant's own language in an argument which is based about his anxiety that C1 was being or attempting to be unfaithful to him. Again, this contention between them was well known to the jury. In short, in our view, this material sheds little or no light on the credibility issues which the jury had to resolve above and beyond any of the evidence which they already had. The admission of this material and the questioning of C1 upon it would not have reasonably led to the acquittal of the applicant or affected the jury's verdict, nor would it have affected the view which the jury had formed in relation to whether the applicant had a belief in consent.

We note in passing a fourth point, which is that there are within these text messages many messages which reinforce and indeed involve admissions on behalf of the applicant that he had been violent towards C1 and to that extent support the prosecution's case. This is not a point on which we rely in reaching our ruling but it is necessarily something which is important for us to record and was a matter which formed the subject of argument in the prosecution's submission.

Thus, in our view, looking at the text individually and as a whole in the context of the chronology in which they arose, they are not capable of establishing that they would reasonably have led to an acquittal of the applicant. At the time that the messages were written the jury were already aware that C1 accepted that she had told lies. The issue for them was whether she was lying when she said she had not consented to anal sex and she had made that clear to the applicant. In fact, putting the texts into the context of conversations in which they occurred the lies related to the allegations which the applicant had repeatedly made about C1's infidelity and which C1 under duress accepted she had lied about. These issues were already well evidenced before the jury and the competing accounts were presented by the judge to them in her summing-up. Again, the observation about never refusing to have sex with the applicant needs to be put in its proper context and when it is, it can be seen that it is of very little, if any, forensic weight.

For all of these reasons and notwithstanding the helpful and focused submissions of Ms Hall on behalf of the applicant, we have formed the view that this appeal must be dismissed.