Robert Halliday [2019] EWCA Crim 1457
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**R v Robert Halliday [2019] EWCA Crim 1457** was a renewed application to the Court of Appeal (Criminal Division) comprising Lord Justice Holroyde, Mr Justice Goss and Mr Justice Knowles in which the applicant sought leave to appeal against both conviction and sentence following his convictions for two offences of rape and the imposition of an extended sentence. The court refused both applications.
Mr Halliday had been convicted of two offences of rape committed against VA on the night of 17–18 November 2017. VA, who was heavily intoxicated and had been refused entry to a restaurant and by taxi drivers, got into Mr Halliday’s car at around 1.30 am believing it to be a taxi. More than an hour later he dropped her at a McDonald’s take-away some considerable distance away, wearing only her knickers on her lower half, and she immediately complained she had been forced to have sex. Her evidence was that Mr Halliday had driven her to a cemetery, pushed her head down towards his penis and made her take it in her mouth, then ordered her into the back seat where he raped her vaginally. Mr Halliday claimed the sexual activity had been consensual and that VA had kissed him and suggested sex after being embarrassed at having urinated on the passenger seat. His Honour Judge Head sentenced him to an extended sentence comprising 13 years’ custody and seven years’ extended licence.
The prosecution had adduced bad character evidence from a witness, SP, who alleged that in July 2015 Mr Halliday had digitally penetrated her vagina without consent after giving her a lift when she was heavily intoxicated in the early hours of the morning. Mr Halliday had been charged with assault by penetration arising from that incident but the prosecution had offered no evidence in 2016 and he had been acquitted.
The first ground of appeal challenged the admission of SP’s evidence. Miss Hamilton, appearing for Mr Halliday, submitted that the prosecution had offered no evidence in 2016 because SP was regarded as unreliable, that the prejudicial effect of her evidence outweighed its probative value, that it amounted to using a weak allegation to bolster another weak allegation, and that it introduced undesirable satellite litigation. The court rejected those submissions. Lord Justice Holroyde noted the striking similarities between the two accounts given by women who did not know one another: both incidents occurred late at night after Mr Halliday had travelled significant distances alone to city centres where he loitered with no apparent reason; in each case he picked up a lone, visibly intoxicated and extremely vulnerable woman who believed he was a taxi driver; each was driven to a secluded location and subjected to serious sexual assault involving penetration; he took items of property including mobile phones; and in each case he claimed the woman had actively instigated the sexual activity. The court held that the decision to offer no evidence in 2016 was understandable given SP’s intoxication and doubts about her memory when her evidence stood in isolation, but there was no allegation that the CPS or prosecuting counsel had condemned her as deliberately untruthful. Applying R v Z [2000] 2 AC 483, the court held that SP’s evidence was admissible and had obvious probative value in rebutting Mr Halliday’s innocent explanation, particularly given the unlikelihood of similar accounts from two unconnected women. The jury were entitled to assess SP’s credibility and reliability for themselves and no unfairness arose.
The second ground of appeal concerned remarks made by prosecuting counsel in his opening speech which, contrary to an express ruling by the judge, suggested a causative link between the alleged assault and SP’s subsequent inability to give evidence in 2016 due to trauma. Miss Hamilton submitted that the judge should have discharged the jury. The court deprecated prosecuting counsel’s conduct in saying something he had expressly been told not to say, but held that the judge had been best placed to assess whether the remark gave rise to unfair prejudice and had been entitled to conclude that discharge was neither necessary nor appropriate, particularly as SP could be cross-examined about her reasons for not wishing to give evidence in 2016.
The third ground challenged the judge’s refusal of defence applications under section 41 of the Youth Justice and Criminal Evidence Act 1999 to adduce evidence that SP had behaved in a sexually uninhibited way after drinking and had been “all over” a man in a bar shortly before getting into Mr Halliday’s car. The court held that the judge’s ruling was plainly correct, as the evidence would clearly amount to the type of cross-examination section 41 was intended to prevent by suggesting that because a complainant had consented to sexual activity on another occasion she must therefore have consented on this occasion.
The fourth ground challenged the admission of evidence that nine days before encountering VA, Mr Halliday had been driving in the early hours in an area of Leicester known for prostitution. The defence submitted this served no legitimate purpose and invited prejudicial speculation. The court noted there was no factual challenge to the evidence and that Mr Halliday’s explanation that he had gone to meet a woman for sex (whom he refused to name) could be contrasted with his admitted lie that he had gone to Leicester on the night of the rapes to visit a friend who lived in the area. The jury were entitled to consider whether the two trips were connected and the evidence was admissible and relevant to support the prosecution case that Mr Halliday had been acting as a predator rather than, as he claimed, a good Samaritan.
The fifth ground contended that the cumulative effect of the challenged rulings rendered the trial unduly complex, lengthy and distracting, working to Mr Halliday’s severe prejudice. The court rejected this submission, holding that whether taken individually or collectively the grounds did not even arguably cast doubt on the safety of the convictions.
As to sentence, Miss Hamilton submitted that the judge should have placed the offences in Category 2B rather than 2A of the relevant guideline; that he was wrong to find harm features of severe psychological harm, abduction and prolonged detention; and that the finding of dangerousness was wrong. The judge had placed the offences in Category 2A (starting point 10 years, range nine to 13 years) and uplifted the starting point to the top of the range, namely 13 years, having regard to the features of the offences and the fact there were two rather than one.
The court held that the judge was plainly entitled to find significant planning, not initially directed at VA specifically but at looking out for and moving in on a vulnerable lone woman, placing the case in Culpability A. The court acknowledged that late service of VA’s victim personal statement was a legitimate complaint, emphasising the importance of compliance with the Practice Direction requirement identified in R v Chall [2019] EWCA Crim 865, but held that Miss Hamilton had been well able to deal with the points in her submissions and no adjournment had been sought. Following Chall, expert evidence was not a necessary precondition of a finding of severe psychological harm and other evidence, including a victim personal statement, could suffice depending on the circumstances. The court accepted that this was not perhaps a typical abduction case but held the term could properly be applied to Mr Halliday’s conduct in taking VA into his car under the false pretence of taking her home and then driving in the opposite direction whilst she protested. Although the two acts of rape were of comparatively short duration, they were encompassed within one to one-and-a-half hours of detention. Even if the judge was wrong to rely on abduction and prolonged detention as additional reasons for Category 2 harm, they would undoubtedly be serious aggravating features. The case plainly fell into Category 2 harm because VA was particularly vulnerable due to her personal circumstances, being heavily intoxicated. Given Culpability A and the overall circumstances, the custodial term of 13 years at the top of but within the Category 2A range could not even arguably be said to be manifestly excessive.
On dangerousness, the judge had been sure that Mr Halliday had committed the offence against SP and that it represented the start of a pattern of planned offending repeated against VA. He had regard to Mr Halliday’s history in his twenties of soliciting prostitutes from a car and indecent assault, his admission of engaging in casual sex outside an established relationship, the two sexual attacks within two-and-a-half years in strikingly similar circumstances targeting drunkenly vulnerable women late at night far from his home by pretending to be a compassionate lift-giver, and the steps taken to suppress evidence after the attack on VA. The judge was sure that emerging unscathed from the prosecution concerning SP had given Mr Halliday a feeling of invincibility. The court rejected the submission that the judge had merely adopted the view of a probation officer who had wrongly had regard to the SP matter, holding that the judge was plainly entitled to make his findings and for compelling reasons to assess Mr Halliday as dangerous. In short, the applications for leave to appeal against conviction and sentence were both refused, the convictions being safe and the sentence being neither wrong in principle nor manifestly excessive.