Simpson [2001] EWCA Crim 468

Regina v Simpson [2001] EWCA Crim 468 concerned an appeal against conviction for rape, which the Court of Appeal (Criminal Division) allowed in exceptional circumstances.

Mr Simpson was convicted on 26 January 2000 at Manchester Crown Court of raping a 20-year-old woman. He appealed on the basis that the conviction was unsafe, contending that where the issue turned entirely on whether the jury believed the complainant or the defendant, and where no independent evidence assisted either side, the conviction could not stand.

The complainant and the appellant met in a nightclub in the early hours of 8 May 1999. They kissed inside and outside the venue. A close girlfriend of the complainant, accompanied by her boyfriend, suggested all four go to her home together. They travelled by taxi, during which more kissing occurred, and arrived at the house well after 2 o’clock in the morning. After a drink and some conversation, the complainant went upstairs to the lavatory. On her return she saw a light on in another room containing a computer and went to look at it. The room also had a bed. She maintained that the appellant came in and kissed her, that she was scared, and that when she said “no” he replied it would be all right. She said that he undressed her and himself, made her lie down, performed oral sex on her, had sexual intercourse with her despite her saying “no” repeatedly, and then tried to make her perform oral sex on him. She said she pushed him away, that he picked up his clothing, left the room and shortly thereafter left the house. She was upset, sat with a duvet around herself, and later went to her girlfriend’s room to complain of what had happened. When police were called at 5.24 am she was in such distress she could not give an account at that time. Medical examination revealed a tear to the hymen consistent with first intercourse but no other injuries. The appellant’s account was that all activity was consensual, that the complainant helped him undress, that oral sex and intercourse took place by mutual agreement, and that he left because his pregnant partner was at home and he was concerned she might be worried. The whole incident had lasted some 45 minutes on his evidence.

The trial took about a day and a half. Prosecuting counsel, Mr Lever, made no closing speech, considering it a case for the jury to decide without positive argument for conviction. Defence counsel made a speech in which he properly advanced a number of jury points, including discrepancies in timing that cast doubt on the complainant’s account; the fact that at least an hour and a half was missing between the appellant leaving and the police being called; the absence of any injury; the complainant’s failure to call out for help despite knowing her friend and her friend’s partner were in the adjoining room; and the possibility that her distress was caused not by rape but by the appellant’s callous behaviour in taking her virginity and simply leaving. However, in advancing the argument that the complainant might have been upset at losing her virginity in a casual encounter with a man who left immediately, counsel made extended and ill-judged remarks to the effect that life was not a Mills and Boon novel and that many women would rather forget losing their virginity up against a wall in a back alley. The Recorder summed the case up, directing the jury that they must not convict because of any feeling that the appellant had behaved badly. He reminded them of the evidence and made certain prosecution points using the formula “The prosecution say this”, although Mr Lever had not made a closing speech and had not said what the Recorder indicated.

The jury retired and after some time asked to be reminded of the definition of “reckless” and “belief in consent” and to be reminded of the evidence given by the complainant and the appellant about what had happened in the house between their arrival and the appellant’s departure. Mr Campbell-Tiech submitted on appeal that in those circumstances the jury should also have been reminded of the burden and standard of proof. The jury retired for over seven and a half hours before returning a majority verdict of ten to two.

Mr Lever had written to the Court of Appeal following refusal of leave by the single judge, a course described by the court as wholly exceptional. In his letter he expressed the view that defence counsel had inadvertently misjudged the way he put the point about the complainant’s distress, saying that the remarks about losing one’s virginity up against a wall in a back alley were dwelt upon at some length and that he could feel the antagonism of the jury to the way the point was expressed. That letter played an important part in the full court’s decision to grant leave.

The Court of Appeal considered the effect of defence counsel’s remarks. Mr Justice Collins, delivering the judgment, emphasised that trial is by jury, that the jury heard the evidence and saw the witnesses, and that the court was most reluctant to intervene where there was evidence entitling the jury to convict. Mr Campbell-Tiech did not suggest any misdirection or non-direction save for the submission that in the circumstances of counsel’s final speech the Recorder ought to have ensured, as best he could, that no lingering prejudice against the appellant remained. The court accepted that the Recorder was in a difficult position, since any criticism of defence counsel might undermine the good points counsel had made. It accepted that he gave the standard direction about not being prejudiced because the appellant had behaved badly. However, the court held that in this case it went further, because what was said on the appellant’s behalf had added to any inflammation caused by his conduct. The court noted that the Recorder adopted a form of summing‑up in which he said “The prosecution say this” and “The prosecution say that”, even though Mr Lever had not made those points in any closing speech. The court observed that where prosecuting counsel has not made points and a judge attributes them to the prosecution, there is a danger that he might appear to be siding with the prosecution. In a case as difficult and sensitive as this, any apparent tipping towards the prosecution might have had an effect which would not arise in other cases.

The court held that if the effect of what counsel said was as clear as Mr Lever indicated, it was necessary for the Recorder to say something, perhaps along the lines that the jury might have been irritated both by Mr Lever not assisting them with a final speech and by what defence counsel had said, but that they must be careful not to hold against the defendant anything said on his behalf and must concentrate only on the evidence. The court acknowledged that in the absence of the inflammatory remarks the jury might still have convicted, but emphasised that there were significant weaknesses in the prosecution case, including discrepancies on timing which showed that the complainant cannot have been telling the whole truth about what she felt and did in the early hours that morning. The court stated that it could not avoid the conclusion that the jury’s distaste for the appellant may have featured in the ultimate verdict. It took into account that the jury was in retirement for nigh on seven hours and fifty minutes and then convicted by a majority, a factor to which, in the exceptional circumstances, it had regard. In short, the court allowed the appeal on the basis that in the exceptional circumstances of the case, including the inflammatory remarks by defence counsel and the Recorder’s handling of them, the conviction was unsafe.