McPartland & Grant [2019] EWCA Crim 1782; [2020] 1 Cr App R (S) 51
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In R v McPartland and Grant [2019] EWCA Crim 1782 the Court of Appeal (Lady Justice Thirlwall DBE, Mr Justice Fraser and Sir David Foskett sitting as a judge of the Court of Appeal Criminal Division) dismissed the appeals against conviction by both appellants and reduced one sentence on appeal.
Mr Kieran McPartland, aged 33, was convicted after trial of rape (count 4) and assault by penetration (count 3) and sentenced to 11 years’ imprisonment and three years’ imprisonment consecutive, making a total of 14 years’ imprisonment. Mr Richard Grant, aged 31, was convicted of rape (count 2) and sentenced to 11 years’ imprisonment. The jury were unable to agree on a further count of rape against Grant (count 1) and a verdict of not guilty was subsequently entered. Both appellants appealed against conviction and sentence by leave of the single judge.
On the evening of 26 June 2016 the complainant, X, was out celebrating her birthday in Plymouth with friends. In the early hours of 27 June she met the appellants outside Revolution club and went with them to another pub and then to Grant’s home. She later reported that whilst at the house she had been raped by both men. At trial the prosecution alleged that Grant had vaginally raped X on two occasions (counts 1 and 2), that McPartland had penetrated her vagina with his fingers (count 3) and orally raped her (count 4). The central issue was consent, save that McPartland denied digital penetration.
X gave evidence in an ABE interview that during the evening she had consumed 18 Jägerbomb shots, three quarters of a bottle of Malibu with lemonade, four double vodka mixers and two shots. She met the appellants outside Revolution at approximately 2.30 am and went with them to the Two Trees pub. After that she got into a taxi with them to Grant’s home. Inside the house the two men smoked cannabis and the fumes made her nauseous. She recalled being in the bedroom but could not remember how they ended up there. Grant proceeded to have vaginal intercourse with her while McPartland simultaneously penetrated her mouth with his penis. She tried to get them to stop and was pushing them away. She felt very drunk and told them she was going to be sick. She ran to the bathroom and heard McPartland say to Grant “mate, how come you get to fuck her?” Whilst in the bathroom one of the men tried to penetrate her vagina from behind with his penis. She returned to the bedroom feeling ill, dizzy and tired. Grant then had intercourse with her again (count 2) and she kept telling him to stop. McPartland then penetrated her vagina with his fingers (count 3) and tried to put his penis in her mouth. She told him to fuck off and that she would call the police. She left in a taxi, asked the driver for the address, went home where she woke her flatmate Laura and disclosed what had happened, and later reported the incident to police.
In cross-examination she accepted that she could not recall the precise sequence of events but maintained that she was telling the truth. She accepted that she had sent messages to friends about the incident on her mobile phone and that she had deleted them. She denied having deleted them after being asked to provide the phone to the police, a request made for the first time two years after the event and which she initially refused. A taxi driver gave evidence that he picked up X and the appellants outside the Two Trees pub and did not think any of them were drunk. Another taxi driver gave evidence that he collected X from Grant’s address in the early hours and that she looked confused, her voice was shaking, she started to cry and was talking to herself saying “maybe it was my fault”. X’s flatmate Laura Merchant-Martin gave evidence that X had been out with her on 26 June but left at around 2 am. She was woken in the morning by X who was crying and said she had been raped. Sulzeer Burke gave evidence that he had been out with X and had met the appellants. He noticed Grant flirting with X and that she seemed to be joining in. The next morning X came into his room and disclosed that she had been raped. He also gave evidence that in February 2017 he saw McPartland at another club and they spoke about the incident. McPartland had said he had stayed downstairs while X and Grant went upstairs and had not seen her again as he had passed out. When cross-examined he said McPartland appeared quite drunk at that meeting as he was unsteady on his feet and slurring his words.
Grant gave evidence that he had met McPartland at Revolution club. They had known each other for around ten years but were not close friends. They met X and Sully Burke outside at around 2.45 am and decided to move on to the Two Trees pub. They had no more than two drinks in the pub and none of them was drunk at that stage. Both he and McPartland were chatting to X. At one stage he was touching her bottom. A gay man had been hitting on him and X had said “look I’m sleeping with him tonight.” They decided to go back to his house, stopped at a petrol station on the way to buy more alcohol, and at his house he smoked cannabis with McPartland. X then said they should go upstairs. They went to his bedroom where he took off his trousers and X took off her underwear. He kissed and touched her and they had vaginal intercourse. He then saw McPartland penetrating her mouth with his penis. She initially made no complaints but then told McPartland to stop otherwise it would be rape. This upset McPartland who stopped and said they should get X to leave. He went downstairs and smoked more cannabis with McPartland. He went back upstairs to check on X. At some point she was sick and he was in the bathroom rubbing her back. A little while later he had vaginal intercourse with her again. A taxi arrived shortly after and X seemed fine. He went downstairs leaving her with McPartland for a couple of minutes. They came downstairs and X left in the taxi. He then went on to another party with McPartland. In cross-examination he denied that he had intended to have sex with X earlier that evening. She had consented to the sexual activity with him and McPartland and was participating. She did not object to anything he had done. When she objected to what McPartland was doing he had stopped straightaway.
McPartland gave evidence consistent with Grant’s about their friendship and the events of the evening. At the house he smoked with Grant. X was tipsy but not drunk. She then said they should go upstairs. He asked Grant if that included him. Grant asked X if she wanted them both to come up and she said yes. In the bedroom Grant and X started kissing and touching each other. They undressed and started having vaginal intercourse. He initially thought he would also have intercourse with X but then changed his mind. He accepted that he had penetrated her mouth with his penis but she then said to stop and that if he did it again it would be rape. He felt vulnerable at that stage as she could make false allegations against them. He asked Grant to get her to leave and went downstairs. He went back upstairs and saw that X was being sick. He could see that Grant was behind her rubbing her back. X later left in a taxi and was fine. She was not upset and spoke to him normally before she left. He denied digital penetration and said he had been put off by the fact that it was obvious Grant had ejaculated. He accepted in cross-examination that he had amended his defence statement to remove the assertion that it looked like Grant was having sex with X when she was in the bathroom. He had realised this was not correct. He denied that he had told Sully Burke that he had remained downstairs and had passed out.
Both appellants submitted that the judge should have adjourned the trial to allow analysis of X’s mobile phone to see whether and when she deleted messages about these events. The case had been listed for trial in late February 2018, nearly two years after the events complained of. In early February 2018, following press coverage of failures to disclose relevant material from social media in trials of sexual offences, prosecuting counsel advised the CPS that X should be asked about her social media accounts. On 14 February the officer in the case spoke to X and asked if she had a Facebook account. She confirmed that she did and that she used Facebook Messenger to send messages to friends. She also had Instagram and Twitter accounts. On 17 February the police officer texted X and said the CPS wanted to download her Facebook account. She refused her consent. On 18 February she made a statement explaining that she had used only Facebook Messenger to send messages to her friends about the incident and that she had deleted the messages about four or five months earlier. She explained that she had changed phones but had retained the same number and account. She had given her old phone to her sister who was unaware of the incident. She refused to give her new phone to the police. The police took further advice and X agreed to hand over her new phone. In a further statement on 25 February she said she had used Facebook Messenger, Snapchat and WhatsApp to send messages to friends, all of whom she named. She said she deleted her messages regularly. Over the weekend before Monday 26 February on which the trial was due to start the police downloaded her Facebook account and reviewed it along with her Instagram and Twitter accounts. They were unable to access her Snapchat account. They looked for material that might assist the defence or undermine the prosecution and found nothing. They interviewed four people X had named as people she may have contacted and reviewed some messages. They were not disclosable. One of the people to whom X had sent a message shortly after the evening in question was her friend who gave evidence for the Crown. Although X had deleted the message from her phone the police were able to retrieve it from the witness’s phone. It was about a skirt that the witness had lent to X that evening. It was irrelevant and so not disclosable but was in due course provided to the defence.
The prosecution informed the defence of the existence and review of the mobile phone as it was happening and all relevant statements were provided. The case had been listed without witnesses on 26 February for other reasons. The Crown were ready to proceed. The defence were concerned that it was not possible to see messages that had been deleted. They wanted to explore when messages had been deleted and why. They pointed to the fact that it was at 5 pm on 23 February that she had been asked about her various accounts and it was the same day that threads had been deleted from Facebook Messenger. She had met the police officer on 24 February. The Crown had made enquiries as to how long it would take to obtain messages deleted from Facebook Messenger. The process was said to involve applications to courts in the USA and would take at least five months. The judge said he had a deep sense of unease and agreed to look at the position again. This issue was considered again in detail on 1 March 2018. On that date the defence applied for the trial to be adjourned so that there could be further exploration of the deleted messages on X’s phone and an order that X should hand over her old iPhone with a password so that it could be examined. The judge refused the applications and gave a detailed ruling while the jury were in retirement.
During the trial X was cross-examined at length about when and why she had deleted the messages. It was put to her repeatedly that she had done so after she had been asked to provide her phone to the police. She said, repeatedly, that she deleted messages from time to time as a matter of routine. She accepted that she had deleted messages on 23 February. It was put to her that she had deliberately deleted photographs. She said she would not have deleted photographs if the police had asked to look at them. She did not remember being asked to keep anything. The Court of Appeal held that by the time of the hearing of the application it was clear that: the allegations were not made in the context of people who knew each other, still less who were in a relationship; there was no suggestion of any contact between X and either of the appellants before or after these events; X was open about the fact that she had messaged her friends about the incident and named them all; there was no basis for any assertion that X had said to any of her friends at any stage that she had agreed to sexual contact with the appellants or that they may have thought she had, whether by message or in person; each of the people with whom she communicated had been spoken to by the police, two of them gave evidence and were cross-examined. The court held that the submission that further exploration of the phone might have revealed that she had deleted relevant messages after being asked to produce her phone went nowhere in the absence of any basis for the suggestion that the messages contained something which may have been of assistance to the defence. The mere fact of deleting messages, if she did, did not support that suggestion. There was no inference adverse to X to be drawn from the fact that she did not initially want to hand over her phone to the police. She was perfectly entitled to refuse to do so. As the judge observed, it would be a normal human reaction not to want the contents of her phone to be put into the public domain during the trial. The court rejected the suggestion that it is now entirely usual practice in cases involving allegations of sexual assault that the mobile phone of a complainant should be examined. What is a reasonable line of enquiry depends on the facts of each case. On the facts here it was questionable whether it was reasonable to ask X to hand over her phone at all. But even if it were reasonable there was no basis for analysis beyond that which was done in the light of the evidence from the friends. The court was quite satisfied that the judge was right to refuse to adjourn the trial. The application was based on speculation built on speculation. X was cross-examined at some length on this subject. The judge was not required to repeat all the evidence on the topic again, both counsel having addressed the jury about it comprehensively. The court rejected this ground of appeal.
Both defence counsel submitted that the judge should not have permitted counsel for the Crown to cross-examine McPartland on his defence case statement. The judge had refused a subsequent application by Mr Rafati to discharge the jury. In his first defence case statement, filed in January 2018 after a conference with counsel but unsigned, McPartland wrote “As he climbed the stairs he saw Mr Grant and her in the toilet. She’s being sick at this stage and Mr Grant was positioned behind her and it looked to Mr McPartland like he was having sex with her.” After a further conference with counsel the statement was amended on 8 March 2018, once the trial was underway and just before McPartland gave evidence. The words “and it looked to Mr McPartland like he was having sex with her” were deleted. In examination in chief McPartland said that when he had gone upstairs he had looked through the bathroom door and saw X being sick and “Richard Grant was behind her rubbing her back.” On behalf of Grant, in cross-examination, he was asked to confirm that when in the bathroom Grant appeared to be rubbing X’s back. The judge noted the evidence thus: “He said she had been sick and he did not really see them having sex in the bathroom.” Mr Norsworthy for the Crown sought to cross-examine on this point. Both defence counsel objected. The judge considered there was no basis for the objection and the cross-examination took place. McPartland’s evidence was not easy to follow. In short he said both that he had not said what appeared in the original statement back in January 2018 and also that what appeared in the statement was what he thought in January 2018 but was not