Case No: 2003/00651/B4
Neutral Citation No: [2004] EWCA Crim 666
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
(PEARLMAN HHJ)
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 26 March 2004

Before :

LORD JUSTICE POTTER
MR JUSTICE FORBES
and 
HIS HONOUR JUDGE TILLING 
(SITTING AS A JUDGE IN THE CACD)
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Between :

	R	Crown	
	- and -		
	DARREN CASH 	Appellant	

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Mr Martin Hicks QC (for the Appellant)
Mr Philip Levy (for the Crown)

Hearing date : 9 March 2004
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JUDGMENT 

Lord Justice Potter: 
1.	On 9 March 2004 we allowed the appeal in this case and stated that we would give our reasons later.  Those reasons are now set out below.
2.	This is the appeal of Darren Cash against his conviction upon a retrial by a majority verdict (10:2) upon counts 1 and 2 of an indictment which respectively alleged rape and kidnapping of Deborah Ben-David (“the complainant”).  Following his conviction the appellant was sentenced to 7 years’ imprisonment upon each count, such sentences to run concurrently.  
3.	There was a co-defendant, Michael Cash, a cousin of the appellant.  He too was convicted of rape and sentenced to 9 years’ imprisonment. 
4.	The appeal follows the grant of leave by the single judge on the basis of an application to adduce fresh evidence relating to the appellant’s mental capacity at the time of the offences alleged.  The appeal has been long delayed because prior to and at the time of trial the appellant’s very considerable mental disability was not apparent to his advisers or to the court.  Trial counsel originally advised that there were no grounds of appeal.  However, well into the service of his sentence, because of the appellant’s apparent inability to cope with prison life, he was submitted to psychological tests and psychiatric examination which revealed that he has an IQ in the low 50’s, placing him in the bottom 0.1% of the population so far as mental capacity is concerned.  
5.	The prosecution case at trial was as follows.  The appellant and his co-defendant are relatives.  On the evening in question, having met the complainant in a public house, they offered her, and she accepted, a lift home afterwards.  However, they did not take her home, but drove around in a circular journey in the suburbs of North London, using violence towards the complainant to keep her in the car when she tried to protest and escape.  They drove to a relatively remote location where the car stopped and the appellant, who was the driver, left the car for a time while Michael Cash raped the complainant.  It was the Crown case that, although the appellant was absent at the time of the rape, he provided knowing assistance in the enterprise.  
6.	The charge of kidnapping related to the detention of the appellant in the car against her will once she had made clear her concern over its destination and the violent refusal of the defendants to allow her out of the vehicle as she protested and struggled.  Her account of the journey, she having at one point tried to grab the wheel of the car, was supported by the evidence of a motorist who followed the car for a time noting its erratic course; also by the evidence of the complainant’s partner who called on the complainant’s mobile telephone in the course of the journey when it was seized by Michael Cash who told the caller to “Fuck off”.
7.	The evidence can be shortly summarised as follows.
8.	The complainant gave evidence that she lived in Stanmore with her long-term partner Johnny Romano and two young children.  On Saturday 31 March 2001 she went to the Masons Arms, a public house in Edgware having made arrangements to meet Romano there.  Before his arrival, she sat alone and was approached by Michael Cash who introduced himself as ‘Larry’.  She was persuaded to play a game of pool with him and at some point he was joined by his friend whom he introduced as ‘Paul’.  ‘Paul’ was in fact the appellant.  At 7.30pm Michael Cash was refused more alcohol by the bar staff as he appeared to be drunk.  He invited the complainant to come with him to a party in Hendon.  She declined explaining that she was waiting for someone.  On Romano’s arrival however, they had an argument and the complainant walked off.  A car then approached which was being driven by the appellant with Michael Cash in the passenger seat.  They offered her a lift home, which she accepted and climbed into the back of the car.
9.	She said that she told them where to take her home, but the appellant said he knew a better way.  Instead of taking her home however the car travelled to the Stanmore and Bushy area.  [It was apparent from other evidence that the vehicle went effectively in a complete circle, going east along Whitchurch Lane, north into Stonegrove, left into London Road then forking right up Stanmore Hill, right into Magpie Hall Lane, right into Elstree Road, right into the A41 southwards, right again at the roundabout into Brockley Hill and back into Stonegrove, off which the car drove to a relatively remote spot behind some flats called Regency Court, west of Stonegrove.]
10.	During the journey the complainant became concerned that she was not being taken home and asked to be let out of the car.  When the defendants ignored her, she tried to grab the steering wheel but was pushed back into the rear of the car.  The car continued for some distance before turning into the rear of Regency Court, both men pushing her back into the rear as she struggled forward.  
11.	The appellant then got out of the car.  She did not know where he went at that point.  However, Michael Cash came from the front through the middle of the seats and positioned himself onto of her.  She shouted and kicked out but was unable to move him.  He moved her knickers to one side and raped her.  She managed to open the front seat passenger door and crawl out on her hands and knees.  At that point she saw the appellant standing by some trees nearby.  She shouted “Help, police” and received a hard blow to the back of the head.  She saw two pairs of feet at that time.  She then heard the sound of the car moving off and climbed over a fence to get away.  Part of her clothing was found on a fence at the rear of Regency Court.  A short while later she was assisted by some members of the public who noticed her distress and telephoned the police.
12.	At 9.30pm the complainant was taken by ambulance to hospital and initially detained in Intensive Care.  She remained in hospital for 3-4 days having sustained a blow to the head with a gash over the left side, and numerous injuries, bruises and abrasions to her hands, knees and inner thighs.  These were said by a medical witness to be consistent with her account.  
13.	Johnny Romano gave evidence that he had been introduced by the complainant to Michael Cash as ‘Larry’ in the public house.  He also stated that he had phoned the complainant’s mobile at a time when she must have been in the car and heard a male Irish voice telling him to “Fuck off”.  He tried a few more times unsuccessfully.  He also rang with the complainant’s sister’s mobile and heard the complainant sobbing “Help me, help me.  I am in trouble, I am in trouble.”  In respect of his evidence it is right to observe that at the time of the incident there were ongoing proceedings with the local authority concerning the care of the complainant’s and Romano’s children.  Prosecuting counsel conceded in his final speech that the complainant and Romano needed to put on a united front for the children’s case and that, if they were having a row on the day of the incident, and if she had had too much to drink, then they had a motive to conceal it.  It was conceded that Romano had not told the truth when he claimed to have slept at home the night before the incident.
14.	Michael Cash attended by appointment at Harrow Police Station on 6 June 2001 and was interviewed.  He confirmed that he and the complainant had been chatting at the Mason’s Arms and said that she had gone with him and the appellant voluntarily.  In the car, he had begun kissing the complainant but had been unable to obtain an erection and so had not been able to have intercourse.  
15.	On the same day, the appellant also voluntarily attended Harrow Police Station and was interviewed in the presence of a solicitor.  The version which he gave was consistent with his evidence (see further below).  
16.	Both defendants asserted in their interviews (and subsequently in their evidence) that the car had stopped because it ran out of petrol whilst going south-east on the A41 (Watford By-Pass).  The appellant had left the car and gone by himself ahead to a garage on the A41 to buy petrol, leaving the complainant and the co-defendant alone in the car.  By implication, the appellant was stating that the rape (if it occurred) took place there and that it happened without his participation or fore-knowledge.
17.	To rebut this evidence, the prosecution called a motorist, Mr Rose who had earlier that evening dined with his wife and, on their return home by car, followed the appellant’s car from Common Road past the Alpine Restaurant into Magpie Hall Lane, clipping the mini-roundabout as it went half right into Elstree Road and then on the A41 southwards to the garage at the next roundabout where Mr Rose himself turned off left towards his home.  He stated that the appellant’s car either went straight on or into Brockley Hill.  He was quite clear that the appellant’s car did not stop on the A41 before leaving it at the garage roundabout.  Mr Rose’s wife was so struck by the erratic course of the appellant’s car that she telephoned to the police to report the incident.  
18.	Both defendants gave evidence at trial, each giving evidence essentially along the lines of their interviews.  The appellant stated that, after he came back to the car with petrol from the garage, he found Michael Cash and the complainant shouting at each other.  Michael Cash then got out of the car.  It was the original intention of the appellant to take the complainant home.  He drove off with her for that purpose but said that she became hysterical and started kicking out.  She said she was going to tell the police that he (i.e. the appellant) had raped her.  He tried to calm her down to no avail.  He then stopped the car and pulled her out from the rear seat.  He then got back into the car and reversed.  However she jumped onto the bonnet.  She rolled off onto the ground, but he saw her getting up as he drove off.  He was panicking.  He said he did not know what had gone on between Michael Cash and the complainant.  He had not assisted in any rape by Michael Cash: nor had he kept the complainant in the car against her will.  He never saw any blood on her and did not know how she came by her injuries.  They could have happened when she fell off the car bonnet.
19.	At the outset of the appeal, we indicated that we would consider de bene esse the new evidence sought to be adduced upon the appellant’s behalf with a view to deciding whether or not it satisfied the requirements of s.23 of the Criminal Appeal Act 1968.  The new evidence consists of the psychological report dated 7 November 2002 together with an addendum dated 14 April 2003 of Mrs Susan Carvalho, a chartered clinical psychologist and head of the Clinical Psychology Department of the North London Forensic Service.  As a result of tests performed, it was her evidence that the appellant had a Full Scale IQ of 53, that is to say an exceptionally low level of intellectual functioning, placing him in the lowest 0.1% of the population.  Even allowing for the fact that he was in a state of depression and stress at the time she examined him it was nonetheless almost impossible to imagine that in an ideal setting he could have obtained a score elevated by the 16 points necessary to take him above the IQ which is the cut-off point for learning difficulties, formerly known as mental handicap.  She concluded that he had significant learning disabilities and fitted the criteria of one suffering from “mild mental retardation” according to the World Health Organisation ICD 10 Classification of Mental and Behavioural Disorders i.e. “a condition of arrested or incomplete development of the mind which is characterised by impairment of skills manifested during the developmental period, which contributed to the overall level of intelligence, i.e. cognitive, language, motor and social abilities”.  The appellant is almost totally illiterate.  
20.	Mrs Carvalho stated that:
“In retrospect, Mr Cash clearly did not comprehend the full process of the court proceedings.  In my opinion, a man with an IQ of 53 would find it very difficult to sustain the concentration and comprehension of several days of court proceedings, whether traumatised or not.  At the very least, he would have benefited from breaks, careful explanation by his legal advisors and careful checking that he understood the elements of the court proceedings as they unfolded.  The provisions were evidently not in place for Mr Cash.  Additionally, I would suggest that he would have been significantly vulnerable under cross-examination.”
21.	In paragraph 5 of her Opinion summarising her findings she stated:
“Had this disability been taken into account prior to Mr Cash’s court appearance then questions would have been raised as to his fitness to plead, and the reliability of his evidence, particularly under cross-examination.  Appropriate provisions for somebody with such a low level of intellectual functioning appearing in court were not in place for Mr Cash, which raises the question as to the fairness of his trial.”
22.	In the later Addendum to her report, Mrs Carvalho, in response to a request to comment on whether the appellant’s learning disability would have been apparent when he was in court on trial, stated:
“As noted in my report, interviewing police officers did not suspect Mr Cash was a ‘mentally handicapped’ person, since they did not provide an appropriate adult.  
I opined that it is possible to ‘misread’ Mr Cash due to his strong Irish accent and general manner, which makes him vulnerable to general stereotyping as a typical Irish traveller.  
Furthermore, I respectfully suggest that it is very common for people, mental health professionals included, to somehow believe that both mental handicap and mental illness have physical manifestations, which mean these disabilities are readily noted.  This is, nearly always, not the case which is why standard measures of intellectual functioning have been devised, and why people like myself are trained to administer and score them.
I, therefore, conclude that Mr Cash’s learning disability may well not have been apparent during the conduct of his court case.”
23.	When asked in cross-examination whether her findings were consistent with a position in which the appellant had given a coherent account of what happened in interview and stuck to his guns in evidence, Mrs Carvalho made the point that she was not suggesting that the appellant had no memory.  She said he had a good working memory which could give an account of daily events.  She also went on to say that, if what the appellant had said was a lie, he would not have been capable of making it up himself; however, he would be capable of remembering and reproducing a false account made up by someone else and reproducing it in evidence.  He would be open to suggestion from a dominant co-defendant and would be likely to be compliant with such suggestion, by learning a story and sticking to it.  
24.	The short report and oral evidence of Dr Grounds, a senior university lecturer and consultant in forensic psychiatry who had seen the appellant on a number of occasions in prison, was to similar effect.  Like Dr Carvalho he said that the learning difficulties and mental handicap of the appellant would not have been obvious to the layman.  He said he was also not surprised that the appellant was able to tell the same story at interview as he did in evidence, resisting any suggestion to the contrary in cross-examination.  However, he would have had poor comprehension of a number of questions put.  If he had earlier been intimidated into telling a particular story, then he could remain consistent to it.  
25.	We also had before us the written statement of a former headmaster of the appellant who stated that, when a child, the appellant’s academic attainment was well below the norm for his age and he was the subject of help from the teacher assigned to remedial work.  He was kept down in his class for a year at the time when the remainder of the children moved up and was ultimately transferred to a special school for slow learning children of IQ of around 70 or below.  Dr Grounds, who had investigated the background of the appellant, stated that throughout his life the appellant had lived with and been dependant upon, the care of his family, particularly his mother.  He had had little independent employment and needed support in basic activities like shopping, being incapable of counting change.  
26.	It is plainly a cause for concern that the mental difficulties and disability of the defendant were not apparent to either the police (both doctors had no doubt that he should have been accompanied at interview by an appropriate adult) or his advisers.  In this connection, we also have before us a recent Psychology Assessment Report from the unit in which the appellant is currently detained which makes clear that the appellant has a broad range of well-developed skills required for functioning in the community which he appears to employ effectively in order to ameliorate the worst aspects of his reduced level of intellectual functioning.  He is thus able “to create the impression that he is far more able than is actually the case”.  
27.	Finally, it is clear from the investigations of the appellant’s present solicitor as set out in a recent affidavit that the duty solicitor who attended the police station when Darren Cash was originally arrested and interviewed was aware that the appellant was illiterate, but took the view that, as this was a case in which no documents were to be put to him, there was no need for an appropriate adult to assist him during the interview.  The solicitor confirmed that had he been aware of the full extent of the appellant’s impairment, he would have insisted on an appropriate adult being present and his advice might well have been different from that which he gave at the police station.  The appellant’s former solicitor and counsel had also made clear that they were not aware of the impairment and vulnerability of the applicant at the time of his defence.  
28.	The final matter of concern is this.  We have been referred by counsel for the appellant to a lengthy transcript of the evidence of the complainant at his first (aborted) trial.  In the course of that evidence, the complainant spoke of an incident in the course of the car journey (which evidence she did not repeat and was not brought out at the second trial) in which Michael Cash had for a time changed places with the appellant and himself driven the vehicle in an erratic fashion.  She was asked what appeared to be the relationship between the appellant and Michael Cash and said that she had the impression that the appellant was scared of him.  She said that he was shouting at Michael Cash but nonetheless allowing him to drive the car, “it was almost like he was scared of him; but he didn’t really want to argue with him about it”.  
29.	In addition, cross-examined on behalf of the appellant, the following exchange took place.  
“Q.  Now of the two men, Darren Cash and Michael Cash, who would you say was in control between them?
A.  Michael Cash.
Q.  Michael Cash.  And how was Darren Cash behaving towards Michael Cash?
A.  He seemed a bit afraid of him; seemed to sort of do what he’d said.  He was quiet and he did.  He was a bit annoyed about the car situation, but Larry [Michael Cash] sort of shouted at him and he seemed sort of to take – he seemed quite afraid of him. 
JUDGE BLACK:  Quite what, sorry?
A.  Afraid of him, but not in the way that he was going to hurt him, but just he had authority over him; he had like a – 
MR ELLIOTT:  In terms of the way that he spoke to you, Darren Cash was polite and civil to you?
A.  Yes.
Q.  Wasn’t he all the way through?
A.  Yes.
Q.  He never raised his voice to your or … ?
A.  No.
Q.  Acted with any form of disrespect towards you?
A.  No.  I mean he did, when I was in the car, when the car was driving, he did push me back into the back seat; and he did on a few occasions, tell me to shut up, or to calm down; and he did shout.  But he did, in the car, push me back with his elbow a few times, into the back of the seat.  That was the only time.
Q.  Darren Cash didn’t rape you? Did he?
A.  No, he didn’t.
Q.  Darren Cash didn’t have any sexual contact with you at all?
A.  No, not at all.
Q.  Darren Cash didn’t help anyone else to rape you?
A.  No.
Q.  Darren Cash wasn’t there during the incident that you described between yourself and Michael Cash?
A.  I don’t know.  I don’t know where he was.
Q.  But he wasn’t in the car?
A.  He wasn’t in the car, no.
Q.  And what I’m suggesting to you is that he wasn’t nearby acting as a look-out or anything of that nature?
A.  Well, I saw him standing by the trees, when I got out of the car.
Q.  This was after the event?  Yes?
A.  Yes.
Q.  But you’re not in a position to say where he was whilst this was going on?
A.  No.”
30.	Counsel also addressed further questions to the complainant designed to minimise the role of the appellant and to suggest that the initiative for the entire trip, and control of what happened thereafter, was that of Michael Cash; in other words, a substantially ‘cut-throat’ defence.  This was in marked contrast to the conduct of the retrial by different counsel.
31.	We have not received any formal statement from defence counsel who appeared below.  However, in the interests of justice, counsel for the Crown has told us, without objection from the appellant’s counsel (who did not seek to assert privilege in this respect) of information communicated to him by defence counsel.  Apparently, defence counsel was in possession of the transcript referred to at paragraphs 27-28 above, but was specifically instructed by the appellant not to conduct his defence on a ‘cut-throat’ basis which sought to attribute blame to Michael Cash.  Since counsel was unaware at the time of any mental deficiency or inability to form independent judgment on the part of the appellant, he accepted such instructions without seeking to go behind them.  
32.	In these circumstances, counsel for the appellant submits as follows in relation to the expert evidence now sought to be relied on.
33.	So far as the admissibility of that evidence is concerned he submits, and we accept, that the criteria set out in paragraph 23(2) of the Criminal Appeal Act 1968 are satisfied in that (a) the evidence appears to us to be capable of belief; (b) it appears evidence of a type and quality which may afford a ground for allowing the appeal; (c) the evidence of the mental disability of the appellant would have been admissible in the proceedings as going to the appellant’s knowledge, intention and appreciation of circumstances necessary to be considered by the jury in relation to the charges both of rape and kidnap; and (d) there is a reasonable explanation for the failure to adduce the evidence at trial, in that those concerned with the defence of the defendant, while aware that he was illiterate, were unaware of the existence or level of his deficiency to a degree which would require the jury, and the judge in summing-up, to give particularly careful attention to the propriety of drawing inferences as to the intentions or knowledge of the appellant at the invitation of the prosecution.
34.	It is apparent from the transcript of the evidence of the appellant that there were signs which, with the benefit of hindsight, raised questions as to his level of appreciation.  At one point, he had apparent difficulty in readily understanding what he was being asked, and identifying what he did, in relation to the reversing of his car.  In the course of his evidence he also made various unsupported assertions that he did not feel that he was in control of events during the course of the evening, that he did not know how to deal with the situation, that he was panicking and nervous, and that he believed Michael Cash when he told him on his return to the car that he had done nothing to the complainant.  Those features of his evidence which the jury may well have taken as indications that he was now advancing a false story or guilty excuse might have carried more credence if the jury had been aware of the appellant’s mental deficit.  
35.	More importantly, however, so far as the charge of rape was concerned, it was the case of the Crown that the appellant knowingly gave active assistance and encouragement to Michael Cash in the rape of the complainant.  If the jury had been aware of the true condition of the appellant it would have been bound to affect their approach to the inferences they were invited to draw in that respect i.e. whether the appellant, prior to the rape, appreciated the intentions of Michael Cash or, in the course of the car journey, by absenting himself from the car (whether to fetch petrol or on the instructions of Michael Cash), he intended either to facilitate what took place or deliberately to turn a blind eye to what Michael Cash intended.
36.	While such an argument is far weaker in respect of the charge of kidnapping, given the evidence of the complainant that the appellant as well as Michael Cash was engaged in pushing the complainant back into the back seat after she had protested that she wished to go home, it might still have been open to the jury, on a defence differently run, to take the view that the appellant was not knowingly engaged in kidnapping, but rather resisting the attempts of a passenger dangerously interfering with his driving.  
37.	Put another way, had defence counsel below, been aware of the appellant’s true condition and had he had available the evidence placed before us, it is inconceivable that he would not have conducted a defence on the same lines as were adopted at the first trial, fortified by the additional evidence. In such circumstances, there might well have been an acquittal of the defendant on both charges on the basis that he was at all times effectively under the influence of Michael Cash and, while ostensibly assisting him, in fact did what he did without a proper appreciation of the circumstances.  Further, even if the jury were satisfied, (as they were plainly satisfied on the evidence before them) that the appellant was telling lies, they may have taken those lies not as a necessary indication of the appellant’s guilt, but rather as the recounting of a version of events put forward on the suggestion or instructions of Michael Cash.  In this connection we note that, shortly after retirement, the jury returned to court having requested to be reminded of the terms of the Lucas direction earlier given.
38.	Mr Levy for the prosecution has resisted the appeal upon the basis that the evidence now available would not have made a scrap of difference at trial given that, whatever his mental deficiency, it is apparent that the appellant was well able to understand the nature of the behaviour of the complainant and his co-defendant and that the jury plainly found that the version of events which he had advanced in interview and in his evidence consistent was untrue.  If the complainant’s version was true, as the jury plainly accepted, then there was simply no way that the appellant could have misunderstood the situation.  It must have been obvious that the complainant wished to leave the vehicle and struggled in order to do so, being in part restrained by the appellant.  Mr Levy also places considerable reliance upon the fact that the jury heard the live recordings of the interviews in order to satisfy themselves as to the appellant’s apparent understanding and veracity.  Finally, it appears from the transcript that, save for one or two misunderstandings explicable simply on the basis of a less than average intelligence and a lack of education (as opposed to mental deficiency), the appellant was able to understand the questions put to him and ‘stick to his guns’ in a relatively short cross-examination.  
39.	It seems to us that the answer to the last point is two-fold.  First, it was the opinion of both doctors that, despite his mental deficiency, the appellant would have been able to ‘learn’ a lying defence at the behest of a person with influence over him and stolidly to stick to it.  Secondly, had trial counsel been aware of the true position, it is inconceivable that he would not have tested the position thoroughly and sought to pursue the line of defence taken at the original trial.  While it may be that the version advanced by the appellant would have remained the same, in considering and applying the terms of the Lucas direction, the jury might well have considered that the purpose of the appellant in telling lies was to protect his co-defendant rather than being an indication of his own guilt.
40.	In all the circumstances, we consider that the ignorance of all concerned of the true level of the mental deficit of this appellant renders his conviction unsafe on both counts of the indictment.  His appeal will therefore be allowed.
41.	Having reached that conclusion, as we indicated when giving our decision on 9 March 2004, we do not consider that this is a case in which a retrial is appropriate.  The appellant has already been in custody for a period equivalent to a term of almost 4 years’ imprisonment.  Even were he reconvicted, we have no doubt that the level of sentence imposed upon him would be substantially reduced in the light of his obvious suggestibility and the fact that Michael Cash was plainly the main protagonist in the offences and the individual perpetrator of the rape.  Furthermore, it is apparent that, until recently, the appellant has served his sentence of imprisonment in conditions which the experts from whom we have heard, as well as the author of a recent report, consider were totally unsuitable, he having now been transferred to a secure medical unit.  In the words of Dr Grounds, he was shocked at the presence of the appellant in prison, never having seen someone with the his level of disability so misplaced.  He was firmly of the view that, had the appellant’s level of disability been appreciated, he would undoubtedly have been a candidate for a hospital order rather than imprisonment.  In those circumstances, the interests of justice do not require a retrial.