THE VICE PRESIDENT: On 30^th July 1998, at Manchester Crown Court, this appellant, following a trial before His Honour Judge Burke QC, was convicted by the jury, on a majority of 10 to 1, on the second count in the indictment, which alleged indecent assault on a female. He was acquitted on count 1, which alleged rape. He was subsequently sentenced to a suspended term of imprisonment and ordered to pay a sum towards the prosecution costs.

He appeals against conviction by leave of the Single Judge.

The events giving rise to the indictment took place on 16^th October 1997. The evidence against the appellant came from the complainant, who was a girl of 17 years of age. She alleged that he had raped and indecently assaulted her. The appellant denied sexual intercourse. He admitted digitally penetrating her vagina and he admitted that she had performed oral sex on him but, in relation to those matters, he said that she had consented to that activity.

In a little more detail, the complainant came from a strict Muslim family, and was destined for an arranged marriage. She had a boyfriend, called B, of whom her parents disapproved. In consequence, she was ejected from the family home. She stayed thereafter, briefly, at the appellant's house, and he had offered her a job.

Thereafter, there was an evening when she went to a club called Joops, with the appellant and another man. According to the complainant, the appellant plied her with a considerable quantity of alcoholic drink and they danced together. In the early hours, when the club closed, the appellant escorted her out of the club and kissed her. She felt affected by the drink. He helped her into his car and drove her home. According to the complainant, he carried her into the flat, sat her on the bed and started removing her clothing. He put a T-shirt on her, lay on top of her, and started kissing. She was wearing knickers. She was having her period and she took out her sanitary towel. The appellant was naked and lay on her and removed her clothes. His penis was erect. He fingered her vagina. She said she told him “Get off, you bastard.” He said he loved her and would ask her father if he could marry her. She said, in evidence, that she had not previously had sexual intercourse and that he had entered her with his penis and it hurt. She said that another man had come in, who was naked and tried also to rape her, but the appellant threw him out. She said the appellant put his penis in her mouth, in and out, and put her hand on his penis saying, “Look what you're doing to me.” She went to sleep and woke at about 9.45 the following morning. There was no one else in the house but she did not leave immediately.

In cross-examination, she denied saying while dancing with the appellant, “Why don't you marry me? I love you.” She denied having told a friend that she had enjoyed herself. She said that she and her boyfriend, B, had tried, some two weeks earlier, to have full sexual intercourse, but had stopped because it hurt.

She said that she knew the appellant had a girlfriend when she first met him and indeed she agreed that, on the morning after these events, when she was still in the appellant's house, she had a telephone conversation with the girlfriend who rang up and was not pleased when the telephone was answered by a female. She did not, however, accept certain aspects of that conversation which she was said to have had.

There was evidence from a Dr Eva Jacobs, who examined the complainant on the day after these events. She found a lovebite on the complainant's left chest below the collar bone, bruising to the base of the hymen and three ragged tears in the fourchette, which were strongly consistent with first ever penetrative activity within 72 hours before the examination, by penis or fingers.

A girlfriend of the complainant, called P, also gave evidence of seeing the complainant in a condition which was not her usual bubbly self.

The boyfriend, B, gave evidence, in the course of which he said that he had had no sort of sexual relationship beyond kissing with the complainant.

On arrest, the appellant denied the allegations made against him. He gave evidence. He was married but it was an arranged marriage and had not worked. He had the girlfriend to whom we have referred. He had been asked to provide the complainant with accommodation. He had offered her work.

On the night, at Joops, the complainant was merry but not drunk. They had kissed in the car. She had put her hand on his leg. He had not carried her into the house. She had gone upstairs with him hand in hand. They had laid down, kissing each other. He had fingered her vagina and she had performed oral sex on him. She had so acted willingly; he had not forced her, nor had they had sexual intercourse. She had never told him to get off. He had given her a love bite because she had asked for one. Another man had come in, but he was fully clothed and he had departed and the complainant and the appellant had gone to sleep. At no stage had he said that he wanted to marry her.

His girlfriend gave evidence, as we have said, of a telephone conversation which she had had with the complainant at the appellant's house on the morning after these events.

The Single Judge gave leave on the basis of criticisms of trial counsel's conduct of the case in relation to a tape recording. To that ground, in a moment, we shall return.

Mr Curran QC, who did not appear at the trial, invited the Court to grant leave to argue a further ground, not before the Single Judge, based on the jury's verdicts being inconsistent. It is common ground that the events giving rise to the second count in the indictment of indecent assault were the quite separate events in relation to oral sex. Count 2 was not an alternative verdict to the first count in the indictment, nor indeed was any direction given by the judge as to the possibility of alternative verdicts to rape in the form of attempted rape or indecent assault. In our judgment, in the light of a number of recent decisions of this Court, to which it is unnecessary to refer in any detail, it is quite impossible to contend that the verdicts of the jury were logically inconsistent; and logical inconsistency is a precondition to being able successfully to argue that a jury's verdicts were inconsistent so as to render a conviction unsafe.

In our judgment, there was no logical inconsistency in the jury not having been convinced that rape had occurred (particularly having regard to the defendant's admission that he had digitally penetrated the complainant), yet, on the other hand, being satisfied that the sexual conduct giving rise to the separate count of indecent assault was proved. Therefore, we did not grant leave to argue the ground based on inconsistent verdicts.

We turn, therefore, to the ground which was argued before us. In order to understand the way in which the submission is put, it is first necessary to rehearse one or two matters of history and then to recite certain passages in the transcript of a tape recording which was made of telephone conversations.

It is common ground that, after the complainant had given her evidence before the jury and had left the witness-box, telephone conversations made between her and other persons were recorded by an enquiry agent, it is conceded, illegally. Those recordings were made before B gave his evidence to which we have referred. Transcripts of those recordings became available to the defence at the conclusion of the prosecution case.

The complaint which is made is that those transcripts of those bugged telephone conversations ought to have been before the jury: if they had been, the jury's verdict might well have been different, because no jury could have ignored the contents of the tape recordings, when addressing the question as to whether or not they believed the complainant, particularly in a case where it was the complainant's evidence which effectively stood alone against the appellant.

The first transcript is of a conversation between the complainant and a friend called R. It suffices to say that the complainant was expressing anxiety as to what had been and might be the accounts given in relation to the complainant meeting another man, apart from the appellant, in the club on the night in question.

The next conversation took place between the complainant and B. It contains a passage which is in these terms:

“THE COMPLAINANT: She [which is plainly, as it seems to us, a reference to Dr Jacobs] said 'Have you had sex fully?' and I go 'Erm, why what do you mean?' She goes 'Erm. I go 'No, but not fully', and she goes 'All right, OK' but that means we didn't do it, you and me didn't do it.

X: You should have said that he was hurting me.

THE COMPLAINANT: Yes.

X. When was that before or after the rape?

THE COMPLAINANT: Before the rape, but we haven't had sex after that.

X: Right, where was it?

THE COMPLAINANT: Hey.

X: Where was it?

THE COMPLAINANT: At N's flat.

X: All right.

THE COMPLAINANT: I couldn't say because I had totally forgotten the doctor because the doctor, I was scared because I thought oh shit the doctor knows everything as she examined me, so I had to tell her that we had tried it. Might spoil everything, yes (inaudible) That we tried it caus' if I didn't and she found something and she would know what was going on.

X: Yes.

THE COMPLAINANT: I really put my foot in it but you know just say...

X: Say we tried it at N's at Salford but we were (inaudible)

THE COMPLAINANT: Just say that.

X: Yes, OK. We were fooling about.

THE COMPLAINANT: Eh, yeah, say I weren't ready.

X: We were fooling about but then we said you weren't ready.”

Then a little later:

“X: Fair enough, I just want to get the story straight because I want this guy down as well as you.”

A little later:

“THE COMPLAINANT: Do you know that guy I told you guys about?

X: Say again.

THE COMPLAINANT: Do you know that guy I told you guys about?

X: At Joop?

THE COMPLAINANT: Yes. Don't say anything about that, OK?

X: That you started getting off with him?

THE COMPLAINANT: Yes.

X: I have never said anything about that.

THE COMPLAINANT: Yes, tell P as well.

X: Yes, I can see N now with that chap in the glasses...”

That material, submits Mr Curran, had the jury known about it, would have been likely to have a seriously damaging effect upon the credibility of the complainant, because it showed that she was seeking to agree with X a false story as to the sexual activity between them and she was seeking so to do in an effort to cover her tracks, because of what the doctor had discovered on examination and what she had herself told the doctor. Furthermore, she was seeking to suppress from the evidence of X, and anyone else in relation to Joops, that she had, in that nightclub, on that evening, been behaving in a familiar fashion with a man other than the appellant.

Mr Curran's initial submission was that, even in a case where trial counsel's conduct is criticised, the first and sole question to be addressed, on appeal to this Court, is whether the conviction is to be regarded as unsafe. He sought sustenance for that submission from the judgment of Henry LJ, in the case of

R v Kamar (unreported, Court of Appeal transcript, 31^st March 1999). In our judgment, that case does not afford sustenance for that submission. It was an unusual appeal in which defence counsel admitted that he had been in error in not seeking a ruling from the trial judge as to the defendant's character and in failing to invite the judge, in summing-up, to give a good character direction. Prosecuting counsel, on the appeal, conceded that the absence of such a direction rendered the verdict unsafe. Accordingly, this Court, differently constituted, quashed the conviction.

In the course of giving the short judgment of the Court, at the foot of page 3, Lord Justice Henry referred to the singular error for which defence counsel expressed profound regret, and went on:

“We accept counsel's explanation. Mr Fulford, [who was counsel for the appellant] consistently with the latest case on this issue R v Donnelly [1998] Crim LR 131, characterised this as 'flagrant incompetence', alternatively that a decision not to adduce this evidence was 'in defiance of all the promptings of reason and common sense' (see R v Clinton 97 Cr App R 320). This was neither incompetence on counsel's part, nor a decision of any kind, whether rational or irrational. It was pure inadvertence, and clearly negligent inadvertence. The live issue was whether the consequence of that threatened the safety of this conviction.”

In the context of that case, to which we have referred, it does not seem to us that that passage, in the judgment of Henry LJ, is either purporting to reject the Donnelly approach there cited, or, seeking to establish any new test applicable to the conduct of trial counsel.

Nor do we accept the accuracy of a passage in the current edition of Archbold, the 1999 edition, paragraph 7-82:

“The issue for the Court of Appeal is whether or not the conviction is safe, not whether counsel was competent, incompetent or flagrantly incompetent: see R v Clinton (ante) in which the court concluded

that 'it is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection.'”

The ultimate issue for the Court of Appeal is, of course, whether the conviction is safe. But it is to be noticed that this citation from Clinton includes a reference to counsel's “ineptitude”, which, as it seems to us, is a necessary prerequisite to any challenge to the safety of a conviction based on counsel's conduct. Put another say, wanting safety in a conviction cannot be based on a decision by counsel merely because other counsel might not have made that decision.

In the course of refining his submissions, Mr Curran accepted that, where counsel's conduct at trial is criticised, it is necessary to assess that conduct before it is properly possible to address the question of whether that conduct gave rise to a want of safety in the conviction. In our judgment, in the light of the authorities before and after the amendment by the Criminal Appeal Act 1995 of section 2 of the Criminal Appeal Act 1968, that concession was rightly and properly made.

It is, for present purposes, unnecessary to refer to all the authorities on this subject. But it is convenient, first, to refer to a passage in R v Clinton 97 Cr App R 320 in the judgment of Rougier J which attracted the apparent approval of the Privy Council in an opinion delivered by Lord Woolf in Sankar & the State of Trinidad and Tobago [1995] 1 WLR 194 at 200 F to G. Rougier J said at page 326:

“We think that the proper interpretation of the cases to which we have referred is that the Court was doing no more than providing general guidelines as to the correct approach. The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act. It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection.”

That passage is to be read as a comment valid, as it seems to this Court, today, despite the amendment of the 1968 Act, on the earlier authorities which had referred to flagrantly incompetent advocacy by counsel: see the judgment of Rougier J in Clinton at page 325.

The reference to counsel's flagrant incompetence has, as it seems to us, properly to be read in the light of the passage at page 326 which we have cited.

The way in which Mr Curran formulated the test in relation to counsel's conduct is this: was the decision or action of counsel based on such fundamentally flawed reasons that it may properly be regarded by the Court of Appeal (Criminal Division) as Wednesbury unreasonable? Such a formulation would certainly coincide with the observations made by Beldam LJ, in Ram (The Times Law Reports, 7^th December 1995), where there appears this passage at page 652 of the reports:

“The court could not countenance a case in which the defendant was serving a prison sentence for no other reason than a mistake on counsel's part but equally, where counsel's judgment had been reasonable, there was a strong public interest that the legal process should not be indefinitely prolonged on the ground, for example, that a defendant's case advanced within a different framework might have stood a greater chance of success.”

It is to be noted that, in Donnelly, a decision of this Court subsequent to the amendment of the 1968 Act, the Court said that an error by counsel might give rise to an allegation of flagrant incompetence and, if such an allegation was made, it might give rise to the verdict of the jury being regarded as unsafe.

Mr Baisden, for the Crown, on this aspect of the case, submitted that only a very high standard of incompetence would be sufficient to enable an appeal to be pursued in this Court on the grounds of trial counsel's behaviour.

For present purposes, it seems to this Court that, whatever the precise language which is used to describe it, Mr Curran is correct in saying that it is only significant fault on the part of trial counsel, or indeed solicitors, which can found a challenge to the safety of a jury's verdict. It may be, although we express no final and concluded view on this aspect of the case, that it is a proper and convenient approach to apply a Wednesbury test to the decision which is contained, i.e. was it one which no reasonable counsel or solicitor could have reached.

With those general observations, we turn to the failure, in the present case, to rely upon the terms of the bugged telephone conversations at trial. Junior counsel's reasons for that non reliance have been set out in a letter which is before the Court. Leading counsel, who was indisposed at the time that those observations were sought, has not supplied reasons then or subsequently to this Court as to why the tapes were not used.

Mr Baisden, for the Crown said, frankly, he did not seek to rely on the trial junior's reasons as sensibly supporting the decision in this case. He draws attention, nonetheless, in relation to the transcript, to the absence of any direct admission of wrongdoing by the complainant. The transcript, had it been used, he submits, might not have influenced the jury's verdict. There are, in the tapes, ambiguities in relation to the meaning of certain of the passages. He draws attention to the fact that the appellant himself, in this case, agreed with counsel's decision that the tapes should not be used. Mr Baisden submits that counsel in the case took a sensible and reasonable course, in all the circumstances. They were not acting against the promptings of reason or good sense, they were not acting contrary to instructions.

He did, however, concede that the jury might have concluded that the passages to which we have referred in the transcript indicated that the complainant was seeking to suborn B before he gave his evidence.

The way in which Mr Curran puts the matter is this: the taped conversation showed that the complainant had attempted to suborn those prosecution witnesses who were yet to give evidence, first by telling them not to tell the court about the other man with whom she had tried to get off at Joops night club; secondly, by warning them that her earlier sexual activity with B had come out by reason of what she had told the doctor; and thirdly, by telling B what he should say when he was cross-examined about his sexual activities.

The submission is made that, had the jury known of these matters, by whatever route, for example, by recalling the complainant for further cross-examination, it is likely that the doubts which they had in relation to the complainant's evidence which gave rise to their acquittal on count 1, would have been compounded so as to remove any realistic possibility of them convicting on count 2.

In our judgment, Mr Curran's submissions are well-founded. Each member of this Court, having considered the terms of the transcripts of these telephone conversations, is of the view that, despite the possible ambiguities, despite the slight possible risk of a retrial being ordered, and despite other possible down side aspects he, had he been defending in this case, would have used these tapes.

In our judgment, although that of itself is by no means conclusive of the question, the only conclusion which is possible is that trial counsel did not behave reasonably and sensibly; and the failure to use these tapes was not just a mistake or understandable tactical decision within the scope of counsel's permissible direction but a matter of very serious misjudgment. The consequence was, as Mr Curran submits, that the verdict on count 2 is rendered unsafe because it is likely that, had the jury known about these matters, they would have formed an even more sceptical view as to the credibility of the complainant.

That being so, this conviction is quashed and the appeal allowed. Mr Baisden, on behalf of the prosecution, properly and fairly recognises the difficulties which might very well arise if a retrial were to be ordered by this Court and he does not invite this Court to order a retrial.

MR CURRAN: I invite you to make a costs order from Central Funds, please.

THE VICE PRESIDENT: Yes, the appellant will have his costs from Central Funds for here and the court below.