Ryan Mark P [2019] EWCA Crim 1247

R v Ryan Mark P [2019] EWCA Crim 1247 concerned an appeal by a 34-year-old man against conviction for rape before the Court of Appeal (Lord Justice Davis, Mr Justice Lewis and Mr Justice Julian Knowles), which was dismissed.

The appellant had been convicted on 28 November 2016 at his third trial before His Honour Judge Simon Davis at the Crown Court of one count of rape (count 1) by a majority of 11 to 1 and was sentenced to eight years and six months’ imprisonment. He was acquitted on two further counts of rape (counts 2 and 3). The first trial in November 2015 had ended with the jury unable to agree. The second trial in July 2016 had to be discharged after the jury retired because of a problem with a particular juror.

The offences alleged that on 1 September 2013 the appellant had raped his 17-year-old step-niece, the complainant, at the family home in Ruislip. The complainant had moved from Australia to live with her paternal grandmother and the appellant, who was the grandmother’s son, also resided there. Following a family birthday party on 31 August 2013, the complainant went to bed at around 10.30 pm having consumed a considerable amount of alcohol. She said the appellant entered her room between 11.30 pm and 2.00 am and vaginally raped her (count 1), anally raped her (count 2), and then returned about 20 minutes later and vaginally raped her again (count 3). The following day she disclosed the allegations to her cousin and was medically examined. The appellant was arrested on 7 September 2013 and denied all allegations consistently thereafter.

The prosecution case relied on the complainant’s evidence, evidence of her complaints to relatives, forensic evidence of abrasions and bruising to her vagina, evidence that the appellant had behaved in a sexually charged way towards her during the party, and the presence of semen on her dress. There was no DNA evidence attributable to the appellant. The defence case was that the allegations were false. The appellant said he had found the complainant slumped on her bedroom floor, had picked her up and put her on the bed, and on another occasion had returned to restore stereo equipment, but had not raped her. Evidence from the appellant’s mother suggested the complainant had denied being raped when asked directly, though the mother was cross-examined about supporting her son and washing the complainant’s dress the following day.

The appellant applied for leave to appeal on 5 July 2018, some 18 months out of time. The grounds were prepared by Mr Martin-Sperry, who had appeared at the first trial but not the second or third. The single judge granted the extension of time and permission to appeal on ground 1 but refused permission on ground 2, which was renewed before the Full Court.

Ground 1 contended that the appellant had been unfairly deprived of the opportunity to advance a defence of confabulation—that the complainant genuinely believed her account but it was false—due to lack of disclosure of relevant medical and social records and the inability to have the complainant examined by a psychologist. Mr Martin-Sperry sought to rely on evidence that the complainant had allegedly been subjected to sexualised behaviour or penetration with objects in Australia in 2001 when she was around five years old, recorded in disclosure materials including a statement from Dr Ingall, a consultant paediatrician, who had stated that the complainant’s actions were “almost always a production of abuse” and that she believed the complainant “has experienced or seen something which has triggered this behaviour”. There was also a statement from the complainant’s cousin saying the complainant had experienced difficulties with a boy in Australia, though no details were provided. Mr Martin-Sperry had sought an adjournment before the first trial to obtain expert evidence on confabulation, which Mr Recorder Grenfell QC refused in a detailed ruling, though the Recorder later directed that any expert reports for the retrial were to be served by 1 February 2016.

The defence did not serve any expert report by that date. Eventually on 14 July 2016, shortly before the second trial, the defence served a report from Dr Ho, a psychiatrist rather than a psychologist, who had not examined the complainant and whose brief report focused on mental health and personality disorder. Dr Ho stated there were “limitations with regard to extrapolating specific conclusions” without a full psychiatric assessment and concluded there did not appear to be symptoms of personality disorder. On confabulation he said only that “it is entirely possible that previous sexual or traumatic incidents could have a bearing on a person’s perception of the world” and that whether the complainant had developed a personality disorder was “difficult to establish conclusively at this stage”. Judge Edmunds QC on 15 July 2016 rejected an application to adjourn and to admit Dr Ho’s report, stating it was far too late, no reason had been advanced for the delay, and the report was not admissible as it did not identify any grounds for concluding the complainant suffered a disorder raising confabulation but merely stated that personality disorder could not be completely ruled out. The judge described an application to vacate the trial so the complainant could be examined by Dr Ho as “hopelessly late”. Mr Martin-Sperry made clear before the Court of Appeal that he raised no challenge to that ruling. Following the second trial (which was discharged), counsel Mr Cross advised that the prosecution’s agreement should be sought for Dr Ho to examine the complainant and for up-to-date medical and Social Services records, and that Dr Ho should comment on whether personality disorder might lead to confabulation. There was no evidence that the defence thereafter approached the prosecution to arrange such an examination or that any further report from Dr Ho was obtained. The third trial proceeded before Judge Simon Davis without any expert evidence on confabulation and without any further application to adjourn. The judge also refused a section 41 Youth Justice and Criminal Evidence Act 1999 application to question the complainant about past alleged incidents in Australia; no challenge was made to that ruling on appeal.

Lord Justice Davis, giving the judgment of the court, held that the conviction was not rendered unsafe by any lack of disclosure or expert evidence. The court was satisfied that the defence had at all times been given full and proper disclosure. Although disclosure had been late at the first trial, no such difficulties existed by the second or third trial. Mr Cross, counsel at the second and third trials, had confirmed he had seen all the materials including Dr Ingall’s statement. After the first trial the defence had been in a position to adduce expert evidence on confabulation, having been given permission and a direction to serve any expert reports by 1 February 2016, yet had failed to do so in a timely manner. The court rejected any suggestion that difficulties at the first trial had “infected” subsequent proceedings; the retrial was an entirely new trial and the defence could have started afresh on the confabulation issue with appropriate expert evidence. That did not happen. Dr Ho’s late report was properly rejected by Judge Edmunds as inadmissible and speculative. The court emphasised that it remained complete speculation whether confabulation was an available theory, as it had never been properly evidenced. To the extent that the argument might suggest default by the defence team, privilege had never been waived and there was no basis for thinking the defence had failed to approach matters properly. The various applications under section 41 were properly rejected given the lack of expert evidence on confabulation. The court could see no unfairness in what occurred and no basis for thinking the conviction unsafe on this ground.

Ground 2 contended that the verdict on count 1 was inconsistent with the acquittals on counts 2 and 3, as this was part of one incident over about 20 minutes and the only logical approach was either to convict on all counts or acquit on all. The court noted that Judge Davis had properly directed the jury to consider each count separately and give separate verdicts, and Mr Martin-Sperry did not challenge that direction. The court applied the strict approach to inconsistency of verdict set out in R v Fanning [2016] 2 Cr App R(S) 19 and R v Fletcher [2017] EWCA Crim 1778. The court held there was a logical basis for the jury’s verdicts. The jury may have been looking for corroboration of the complainant’s account. Evidence of abrasion to the vagina was capable of supporting vaginal penetration (count 1) whereas there was no such evidence for anal penetration (count 2). Furthermore, in some of the complainant’s subsequent complaints she may have reported being raped once rather than more than once, which could explain the acquittal on count 3 (the second alleged vaginal rape). There was no basis for saying the conviction was unsafe on this ground, and the renewed application on ground 2 was refused.

In short, the Court of Appeal held that the defence had been afforded full disclosure and ample opportunity after the first trial to adduce expert evidence on confabulation but failed to do so, and that the verdicts were not inconsistent given the available corroborative evidence, with the result that the appeal was dismissed and the renewed application refused.

R v Fanning [2016] 2 C r App R(S) 19
F [2017] EWCA Crim 1778