Ryan John Rostron [2019] EWCA Crim 1333

Ryan John Rostron v R [2019] EWCA Crim 1333 concerned a renewed application for an extension of time and leave to appeal against convictions on the basis of fresh evidence said to demonstrate a retraction of rape complaints; the Court of Appeal refused the application and declined to receive the fresh evidence.

On 23 November 2015 at Cambridge Crown Court, Mr Rostron pleaded guilty to threatening to destroy or damage property. Following trial on 23 May 2016, he was convicted by a majority of 11 to 1 of making a threat to kill, two counts of rape and assault occasioning actual bodily harm. He applied for an extension of time of 654 days to appeal against conviction and sought leave to rely on fresh evidence under section 23 of the Criminal Appeal Act 1968.

The offences arose in the context of a relationship between Mr Rostron and the complainant. Count 1 involved Mr Rostron stopping a car during an argument, forcing the complainant into the boot and threatening to kill her, then threatening to kill them both by driving under a lorry. Counts 3 and 4 arose from an incident early in the relationship when Mr Rostron took the complainant to fields behind his house, hit and kicked her, knocked her to the ground and insisted she suck his penis, then had vaginal sexual intercourse with her without her consent before asking “Have I just raped you?” Count 5 involved striking the complainant with a metal bar, causing a deep laceration requiring hospital treatment. The defence case at trial was that the complainant had fabricated the allegations maliciously out of jealousy of the applicant’s relationship with his sister.

The fresh evidence comprised primarily a statement dated 1 March 2018 from Mr Daniel Gibbs, who claimed to have met the complainant in a club in King’s Lynn in autumn 2016. He stated that they returned to his house and during the night she told him Mr Rostron had been convicted of raping her. When Gibbs pressed her for information, she allegedly said Mr Rostron deserved to be in prison for terrible things he had done to her but that she had fabricated the rape allegation as revenge for Mr Rostron sleeping with her sister. Gibbs claimed he researched the name Rostron online and contacted the applicant’s mother via Facebook on 22 May 2017. He also claimed to have tried to report the alleged retraction to police but received no response. The applicant’s present solicitors were instructed in June 2017 and took a statement from Gibbs in September 2017, though this statement was not made available to the court.

When police interviewed the complainant on 13 June 2018, she stated she had first met Mr Gibbs at the wedding of the applicant’s friend, Mr Matthew Wardell, where Gibbs was best man and she saw Gibbs and the applicant speaking. She saw Gibbs again at the Seventh Heaven Club where she worked. She admitted having sex with Gibbs on two occasions six months apart about two years previously. She said Gibbs knew her real name from her Facebook page and that only close friends and family used her nickname. She admitted speaking to Gibbs about the applicant but only to tell him he was in prison. She said she last saw Gibbs two to three months before the interview when he visited a bar where she worked with Mr Jordan Reed and Mr Christian Grange, and they had discussed the applicant because he had threatened Gibbs for sleeping with her. Detective Sergeant Nicola Lamport made a statement dated 24 July 2018 about contact with potential witnesses. Ms Jade Palmer had originally described a violent relationship in which the applicant beat the complainant but stated adamantly that the applicant had not raped the complainant. She also said the applicant and Gibbs knew each other. When DS Lamport spoke to her about the statement, Palmer claimed misrecording and insisted she had said they had mutual friends, not that they were friends. She refused to sign an amended statement, saying it showed the complainant as victim and the applicant in a bad light, and wished to remove references to assaults by the applicant, though she confirmed they were true. Both Palmer and Ms Toni Harrison confirmed they were present when Gibbs and the complainant had sex at Gibbs’ mother’s house on a second occasion different from their first date. Mr Christian Grange told DS Lamport he thought the applicant and Gibbs would know each other through the same circle of friends. He confirmed a visit to a club with Gibbs and Reed on 26 January 2018 when Gibbs and the complainant appeared friendly, and admitted receiving threats from the applicant because of his relationship with the complainant but refused to assist police.

The applicant lodged further fresh evidence including a statement dated 18 September 2018 denying knowing Gibbs, denying paying or threatening him, and denying being bothered that Mr Grange had slept with the complainant. He confirmed knowing Mr Wardell and attending his wedding reception with his aunt and uncle but not with the complainant. He stated he knew someone named Jordan Reed but that Reed was not his cousin. A statement from Mr Lee Else dated 16 October 2018 stated the complainant had contacted him on Facebook asking him to provide her number to the applicant in prison. Mr Wardell’s statement dated 19 October 2018 confirmed Gibbs was best man at his wedding on 28 June 2014 which the applicant also attended. Wardell claimed he never introduced them and was not aware they spoke at the wedding. He did not recall the complainant being at the wedding because the applicant attended only with his uncle and aunt. A further statement from Gibbs dated 25 October 2018 said that after speaking to the complainant in bed he did not know the applicant’s full identity, though he accepted the complainant had told him the applicant’s name in a restaurant. He agreed he went to a strip club and saw the complainant with Reed and Grange. He did not recall meeting the applicant at Wardell’s wedding and had not had direct contact with the applicant regarding the appeal, only with the applicant’s mother. A statement from Jade Palmer dated 26 October 2018 disputed DS Lamport’s account of attempts to take a statement from her.

The court applied the guidance set out in R v V(S) [2013] EWCA Crim 150, [2013] 1 Cr App R 35 regarding the proper approach to applications based on alleged retractions of rape complaints. Following that guidance, the court heard evidence de bene esse from the applicant, Mr Gibbs, Mr Wardell, Ms Palmer and Mr Else before deciding whether it was necessary to hear from the complainant. The Vice President, Lady Justice Hallett, giving the judgment of the court, observed that even where a retraction was admitted by a witness, that would not necessarily determine an appeal. The issues were whether the evidence of Mr Gibbs was capable of belief and whether it undermined the complainant’s credibility to such an extent as to render the convictions unsafe.

In oral evidence, the applicant confirmed his written statement save that Jordan Reed was a distant cousin. Mr Gibbs admitted using the Shapers Gym as did the applicant, Mr Wardell and others, and admitted having friends in common with the applicant, but denied ever meeting the applicant. He insisted he had to research online to discover who he was. He denied seeing the applicant at the Wardell wedding though he saw the applicant’s aunt and uncle, who were customers of his. Gibbs explained he was so shocked by what the complainant told him he could not sleep and it preyed on his mind. When pressed on why he delayed contacting the applicant’s mother, he stated he had spoken to Mr Wardell about it in 2016 and asked if he knew the applicant, which Wardell confirmed. Although he claimed to have carried out Facebook research soon after speaking to Wardell, he did not contact police or the applicant’s mother until May 2017. In response to a leading question, Gibbs gave as one explanation that he was in a relationship at the time and did not want his then partner to discover he had slept with the complainant. In cross-examination, Gibbs admitted seeing the complainant twice after the alleged retraction. He denied having sex with the complainant on the second occasion at his parents’ house with Palmer and Harrison present, but admitted taking the complainant upstairs several times, claiming he was attempting to extract confirmation that her rape complaint was false so he could record it on his telephone. Initially he claimed not to have rung the applicant’s mother, but when confronted with the first draft of his second statement before amendment by solicitors, he admitted ringing her twice, claiming the first call was to find out what was happening in the applicant’s case and the second to commiserate on the death of the applicant’s brother, whom he knew. He also knew the applicant’s mother’s ex-husband who lived near him.

Mr Wardell said he knew the applicant from the gym and insisted the applicant went to his wedding with his aunt and uncle but not the complainant. He explained that at the end of the evening the applicant wanted to go clubbing but Wardell was not allowed. He was sure the applicant and Gibbs did not know each other and were not introduced at his wedding. He said Gibbs mentioned to him during a chat in 2016 that he had slept with the complainant, speaking of his conquest. Wardell was confident Gibbs had slept with her twice. Gibbs added that the complainant told him she had made a false allegation of rape. Wardell said he contacted the applicant’s mother and told Gibbs to do the same very soon after their conversation. Ms Palmer claimed DS Lamport misrecorded what she said about the applicant and Gibbs being friends, stating she only told DS Lamport they shared mutual friends. She was confident they did not know each other. She did know of an occasion when Gibbs and the complainant slept together because she was present with Toni at his parents’ house. Mr Else confirmed receiving a message from the complainant stating she wanted to speak to “him”, which he assumed meant the applicant, though he did not know her purpose. DS Lamport confirmed the statements she compiled were based on what Jade Palmer had told her at various times.

The court was entirely satisfied that Mr Gibbs’ account was incapable of belief and declined to receive it. In those circumstances, the court did not need to hear from the complainant. The court identified a number of reasons for rejecting Mr Gibbs’ account. As to the timeline, although Gibbs claimed the retraction occurred in autumn 2016 and he spoke to Wardell immediately, Gibbs did not manage to contact the applicant’s mother or try to report the matter to police until several months later. As to the second occasion at Gibbs’ parents’ home, the court rejected as highly unlikely Gibbs’ first-time assertion in the witness box that he took the complainant upstairs to record her admitting she had made a false allegation, noting it would have been far easier simply to report the alleged retraction. The court considered this an untruthful explanation and it caused the court to doubt entirely his account that on the first occasion the complainant had told him she had made a false allegation after which he wished to have nothing more to do with her. The court found numerous inconsistencies in the various accounts Gibbs had given and he was able to produce no sensible explanation for them. If, as became apparent only when he gave evidence, he knew how to contact the applicant’s mother after speaking to Wardell in 2016, there was no obvious reason why he would allow an apparently innocent man to languish in prison. The court rejected his belated assertion that he was trying to keep the truth from his then partner and questioned why he did not explain earlier that he had spoken to Wardell, noting he made no mention of this in his written statements and made it clear in those statements that it was only by his own researches that he fortuitously found out in May 2017 how to contact the applicant’s mother. In the light of what the court then knew, the Facebook exchange with the applicant’s mother appeared contrived and inconsistent with the evidence called. The court also noted differences from the accounts he later gave about his contact with the complainant, for example telling the applicant’s mother he had a meal with the complainant during which she told him she had fabricated the allegation.

As to the relationship between Gibbs and the applicant, the court noted that on the papers there appeared to be virtually no connection between them other than what the complainant had said, yet they lived in a small community. The court found that Gibbs was not a complete stranger to the Rostron family as had been portrayed. He knew the applicant’s dead brother, knew the applicant’s mother well enough to ring her and offer condolences and knew her telephone number, knew her ex-husband and did work for the applicant’s aunt and uncle. The court found the account inherently implausible, noting there was no reason for Gibbs to press the complainant for more information as to why a man he claimed not to know was in prison. It would be very unusual for a woman to sleep with a virtual stranger and tell him she had made a false allegation of rape against another man. Nor was there any satisfactory explanation for his delay in contacting the family or police thereafter. The court also considered it significant that if the complainant was not at the Wardell wedding in 2014 when she and the applicant were contemplating becoming re-engaged and was known as his partner, one questioned how she knew so much about it, including that Gibbs was best man and the applicant’s aunt and uncle were present.

The court found Mr Gibbs’ account frankly incredible even after making every allowance for the frailty of human memory and difficulties in giving evidence. The other witnesses, Mr Wardell and Ms Palmer, were in the court’s judgment prepared to assert facts they could not possibly know were true, namely that the applicant and Gibbs did not know each other and had never met, when they knew both lived in the same relatively small community, attended the same social events such as Wardell’s wedding, attended the same gym and mixed with the same friends. This all appeared to be an attempt to assist their friend. Mr Else’s evidence added nothing to the appeal even if true.

In short, the court declined to receive the fresh evidence and refused the renewed application for leave to appeal against conviction, finding Mr Gibbs’ account of a retraction incapable of belief.