Kay [2017] EWCA Crim 2214
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R v Kay [2017] EWCA Crim 2214 concerned an appeal against conviction for rape, the Court of Appeal (Criminal Division) allowing the appeal and quashing the conviction.
Mr Kay had been convicted on 23 September 2013 by a majority verdict of 10 to 2 of raping A and sentenced to four years and six months’ imprisonment. He was acquitted of two further counts of rape concerning a different complainant, B. He applied for an extension of time of approximately two years and five months in which to apply for leave to appeal against conviction.
The offence was alleged to have occurred in early February 2012. The applicant, then aged 20, had contacted A, aged 16, via Facebook. They exchanged messages and arranged to meet. During their second meeting at his home, A alleged that the applicant had raped her on the sofa. She said she had told him she did not want to have sex and had pushed his chest, but he had penetrated her and continued despite her saying it hurt and asking him to stop. She did not report the matter until she made an ABE interview on 28 July 2012. When arrested, the applicant initially denied knowing A but later accepted they had met and had consensual sexual intercourse. His defence at trial was that A and B had colluded or concocted false allegations, or that their accounts were otherwise unreliable. In relation to A’s allegation specifically, the defence case was that any intercourse was consensual and that the applicant had reasonably believed A was consenting.
At trial, the prosecution adduced evidence including A’s ABE interview, which became her evidence in chief, and an exhibit consisting of three pages of Facebook messages between A and the applicant. However, A accepted in cross-examination that she had deleted some Facebook messages, ostensibly to free up storage space. The prosecution also relied on evidence from friends and family members to whom A had made complaints. The defence highlighted numerous inconsistencies in A’s evidence, including contradictions between what she told the police, medical professionals, friends and family about the extent of her sexual history before and after the alleged rape, and contradictions about the nature and extent of her contact with the applicant after the incident. Mobile telephone analysis showed that 429 text messages had been sent by A to the applicant and 410 by him to her between 1 and 17 February 2012, with further messages in March, although the content could not be retrieved. The applicant gave evidence that the intercourse was consensual and that A had been a willing participant.
Following conviction, the applicant instructed new solicitors who obtained the case papers in May 2014. After further investigation, counsel advised in March 2016 and the application for leave to appeal was lodged on 23 March 2016, approximately two years and five months out of time. The applicant raised two grounds of appeal: first, that the trial judge had misdirected the jury on consent and reasonable belief in consent, effectively withdrawing the latter issue from the jury; and second, that fresh evidence in the form of further Facebook messages was now available which undermined A’s credibility and went to the safety of the conviction.
The main ground pursued on appeal concerned the Facebook messages. After the trial, in May 2014, the applicant’s brother asked his partner, Miss Maddison, to search the applicant’s Facebook account. She located an archive folder containing further messages of which she took screenshots. The applicant’s solicitor subsequently logged on to his account in September 2016 and printed the messages. It transpired that although A had deleted 29 messages from her account, they remained in the applicant’s archived folder. The full exchange revealed significant omissions from the version exhibited at trial. In particular, the edited version had misleadingly suggested that the applicant had told A he was the same age as her (something about which he was vigorously cross-examined and which he denied), whereas the full exchange showed he had not. More significantly, the edited version supported A’s account that contact after the alleged rape related only to her pregnancy concern, whereas the deleted messages showed that on 19 March A had voluntarily given the applicant her telephone number, ending the message with kisses, and between 21 and 23 March had asked him why he was ignoring her. An exchange in which he said “sorry” had been presented to the jury in a context suggesting an apology for wrongdoing, whereas the full version showed it was a response to her complaint that he was ignoring her. The Crown served further statements from A and the officer in the case. A stated she could not explain the incomplete recovery but denied deliberately deleting messages to mislead. The officer stated he had been present when the messages were printed and that no messages were missed. A digital specialist confirmed that whole messages, but not parts of messages, could be deleted.
The court held that the fresh evidence satisfied the criteria under section 23 of the Criminal Appeal Act 1968. It was capable of belief and would have been admissible at trial. The court accepted that in a case of one word against another, the full Facebook exchange provided very cogent evidence both as to the truthfulness and reliability of A, who had in any event given contradictory accounts about other relevant matters, and as to the reliability and truthfulness of the applicant’s account. Applying the approach in R v Pendleton [2002] 1 WLR 72, the court was satisfied that the further evidence raised a reasonable doubt as to whether the applicant would have been convicted had it been before the jury, rendering the conviction unsafe. The court also considered that there was, in the unusual circumstances of the case, a reasonable explanation for the failure to adduce the evidence at trial. The applicant had been aware the exhibited messages were incomplete and had urged the prosecution to obtain the full exchange; the police had had his phone and laptop and could have accessed his Facebook account. He stated that he had contacted Facebook and searched his inbox folder but had been unaware that an archive folder existed. Although no great expertise was required to locate the archive, and the applicant had left it until after trial to seek assistance from his brother, the court was satisfied that a reasonable explanation existed.
The court acknowledged that the delay in bringing the appeal was not excusable but held that the overriding consideration was whether it was in the interests of justice to extend time. Given the merits of the appeal and the reasons for the delays, the court granted leave, extended time and admitted the fresh evidence. The conviction was held to be unsafe.
In relation to the first ground of appeal concerning the trial judge’s directions on consent, the court held that although the direction was not helpful in its precise terms, the Recorder had made plain that both the absence of consent and the absence of any reasonable belief in consent had to be proved by the prosecution to the requisite standard. It was not left solely on the basis that if the jury believed A then the applicant was guilty. The Recorder had emphasised that the prosecution had to prove not only lack of consent but also that the applicant did not have a reasonable belief that A was consenting. Accordingly, there was no merit in this ground. The court noted with concern that the jury had not been provided with written directions as to the elements of the offence or a route to verdict, observing that such assistance would have been of great value given the different issues relating to the two complainants and the nature and features of the case, as directed in CPD VI 26K.12.
In short, the Court of Appeal quashed the conviction on the basis that fresh evidence in the form of the full Facebook message exchange, which had been edited in misleading fashion before the jury, rendered the conviction unsafe in a case that turned on the credibility of the complainant and the applicant.