OYSTON v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Owen Oyston, is a United Kingdom national, who was born in 1934 and lives in Lancaster, England. He is represented before the Court by Mr David Price, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 May 1996, the applicant was convicted at the Liverpool Crown Court of raping and indecently assaulting a young woman, J. He was sentenced to six years’ imprisonment for rape and three years’ imprisonment for indecent assault, the two sentences to run concurrently. The applicant was acquitted at the same time of raping a second woman, B. The background of the case may be described as follows. When J. was aged 14 she joined a modelling agency in Manchester and began attending weekend classes. The agency was owned by Peter Martin, a friend of the applicant, and the weekend classes took place at Martin’s home. When J. was aged 15, she started staying overnight at Martin’s house on Fridays and Saturdays. A number of other girls aged between 13 and 20 also stayed at the house. Martin exerted control over the girls, to the extent that he would tell them what to wear, what to eat, when to wash and when to go to bed. J. left school when she was aged 16 and went to live permanently at Martin’s house at about Easter 1992. Martin used to take the girls to restaurants. On one such occasion, about eight weeks after J. began living with him, Martin pointed out the applicant to her, telling her that he was “a very important man and dead rich”. About two weeks later, when Martin, J. and another girl from the agency L. were at the restaurant, the applicant was also present. After the meal, Martin said that they were to drive the applicant home in Martin’s car. At the trial, J. gave evidence that she got into the back of the car at Martin’s suggestion, while L. sat in the front with Martin who was driving. J. stated that during the journey the applicant forced her to have oral sex with him. On arrival at the applicant’s home, Martin told J. and L. to get out as the applicant wanted to show them his house. J. followed the applicant and L. and ended up in a bedroom. The applicant and L., who was his girlfriend, had sexual intercourse. The applicant then told J. to take off her clothes and made her have sexual intercourse with him. J. and L. then left the house and joined Martin who was waiting in the car. J. said that she did as the applicant wanted because she was dominated by Martin, and was afraid of upsetting the applicant, whom she knew to be Martin’s friend. J. contacted the police in October 1994. On 9 February 1995, the applicant was arrested and charged with a number of offences of a sexual nature allegedly committed against young women from the modelling agency. Martin, who had been arrested in September 1994 was also charged with a number of offences of a sexual nature committed against young women from the modelling agency, including the rape of J. The applicant was originally charged with six offences. His defence to each charge was that the event alleged had never taken place. The applicant’s evidence was that he had no recollection of J. having visited his home, and that there had been no contact of a sexual nature between him and J. at any time. At the end of J.’s examination in chief by the prosecution, the applicant’s leading counsel obtained leave from the trial judge pursuant to section 2(1) of the Sexual Offences (Amendment) Act 1976 (see below) to cross-examine J. on her sexual experiences with Martin, and in particular on the fact that she had been raped by Martin and about the alleged control that he exerted over her. It was the defence case that J. was obsessed with a hatred of Martin and it was this which motivated her allegation against the applicant. J. was extremely distressed by this cross-examination. L. gave evidence for the defence. She had started working at Martin’s agency when aged 11 and had begun a relationship with the applicant when aged 16. She stated that on one occasion she had travelled to the applicant’s home with Martin, the applicant (with whom she was then having a relationship) and J.; that Martin had driven the car, she had travelled in the front passenger seat, and the applicant and J. had travelled in the back of the car; that L. had gone into the applicant’s bedroom in order to use the toilet in the en suite bathroom. When L. came out of the toilet, she saw J. and the applicant lying on the bed, fully clothed. They all then left. Nothing improper occurred. L. was asked in cross-examination by the prosecution about her relationship with the applicant, who had been introduced to her by Martin. She was also asked about sexual relationships with other men introduced to her by Martin. She accepted that she had had sexual intercourse with four of the men, when she was aged between 16 and 19 years, and in the case of two of the men, while she was still conducting a relationship with the applicant. When re-examined by defence counsel, she described these relationships as “almost dirty or sordid” and contrasted them with her relationship with the applicant, which she said was “[r]omantic, how it should have been”. L. was also asked by prosecution counsel about an abortion which she had had at around this time, and was asked whether she had had “three in a bed” sex involving the applicant. No reference was made to L.’s sexual experience by either counsel in their closing speeches, or by the judge in summing up the case for the jury. The jury proceeded to convict the applicant. On 12 June 1997, the Court of Appeal granted the applicant’s application for leave to appeal against conviction and sentence. The applicant applied at the same time for leave to adduce fresh evidence, in the form of a number of witnesses whose evidence was not available at the trial because, the applicant submitted, he was unaware of their existence or of the fact that they had material to make available to him. One of the witnesses was a young man with whom J. had had a sexual relationship while on holiday in Crete in 1992, and to whom she had subsequently written a letter, a copy of which formed part of the fresh evidence which it was sought to adduce. The Court of Appeal gave the applicant leave to amend his grounds of appeal in order to contend that his convictions were in all the circumstances unsafe, having regard to the fresh evidence. Lord Bingham CJ said, in giving judgment granting leave: “While we conclude that these witnesses are not in a position to give evidence which would have been admissible at the trial, we nonetheless consider that this is material which could have been used to attack the credit of J. and which the applicant should be free to draw to the attention of the court in support of his submission that in the light of these materials and of the case as a whole this court should consider the convictions of the applicant to be unsafe.” On 9 December 1997, the Court of Appeal dismissed the applicant’s appeal against conviction and sentence. The Court of Appeal received the fresh evidence under section 23(1)(c) of the Criminal Appeal Act 1968, and then considered its significance in the context of the appeal. Phillips LJ said, in giving the judgment of the Court of Appeal: “...the full Court ruled that we should give the new material such weight as it deserves when considering the extent to which the credit of J. might have been shaken had it been available to the defence at the time of the trial. The Court did not consider, however, that it amounted to evidence which could be placed before the jury. Before us [applicant’s counsel] challenged that conclusion. He submitted that where, as here, the prosecution case turns exclusively on the evidence of the complainant, evidence that bears on the credit of the complainant is not merely collateral, but goes to the heart of the case... It seemed to us somewhat arid to invite lengthy argument about the basis upon which we should consider the significance of the new material. If it proved such as to to lead us to doubt the credibility of the complainant, we would be loth to entertain argument that the convictions should nonetheless stand because of a technical rule of evidence against the admissibility of evidence going solely as to credit. ... In these circumstances, we decided that the convenient course was to receive the evidence under section 23(1)(c) of the Criminal Appeal Act 1968 and, having done so, to evaluate the significance of that material.” As regarded the significance of the evidence of J.’s holiday on Crete when it was alleged that she had had sexual intercourse with a young man, Lord Phillips said: “[Applicant’s counsel] urged that this evidence was significant and could have been admitted by the Judge on three bases: (1) it showed that J. was not as vulnerable as she appeared. (2) it had significance in relation to a pregnancy test. (3) the evidence was in conflict with other evidence J. had given and thus tended to destroy her credibility. J.’s vulnerable appearance To seek to introduce this evidence simply to counter the general impression that J. was making in the witness box would have been a paradigm example of the type of conduct that section 2 of the 1976 Act is designed to prevent. We have no doubt that the judge would have refused an application made on that basis. The fact that J. had enjoyed the brief relationship with a young man, which is reflected by the letter, whether before or after the date on which the offences were alleged to have been committed by the [applicant], is of itself of no relevance to the question of whether she was raped and indecently assaulted by a man nearly four times her age. The pregnancy test J. had a pregnancy test on 16th June 1992. The defence were aware of this, but naturally asked her nothing about it. The new material indicates that the test probably resulted from anxiety as a result of having had sexual intercourse with [the young man in Crete] so that it would have been safe to cross-examine as to why J. did not have a pregnancy test after the alleged rape by the [applicant]. This argument does not attach intrinsic significance to the evidence itself, nor constitute any reason why it should have been introduced at trial. There are various reasons why the victim of a rape might not think it necessary to have a pregnancy test and the fact that the defence refrained from asking about this under a misapprehension does not affect the safety of the verdicts.” Concerning alleged inconsistencies revealed in J.’s evidence, Lord Justice Phillips said: “In her evidence in chief, J. said nothing about the effect that the alleged offences had had on her. Under cross-examination she volunteered the statement that “when I came back from the house I spent a year of my life trying to forget what happened.” We do not find that the Cretan holiday, if it took place during the year in question, is inconsistent with that statement...[applicant’s counsel] submitted that the Cretan holiday was inconsistent with the statement that Martin had messed up her life completely and that she hated having sex...[applicant’s counsel] said that if all this material had been available he would have adopted a completely different approach to J.’s statement as to what happened... This puzzled us for we could not envisage how [applicant’s counsel] could have hoped to persuade the Judge to allow him to adduce evidence about what J. had said in relation to events at [Martin’s house] in order to cross-examine her on the truth of those statements. Furthermore, J. had given evidence at Martin’s trial which ended in his conviction in September 1996 on counts which included rape of J. We asked [applicant’s counsel] if he was suggesting that J.’s account of the sexual abuse and rape that Martin inflicted on her was untrue. He answered that he could not say that. It seems to us that that concession, which was inevitable, undermines the points that [applicant’s counsel] has sought to make on inconsistencies. There can be no doubt that J. was subjected to appalling sexual abuse by Martin. In whatever way she behaved thereafter, her behaviour cannot be an indication that this abuse never occurred, and thus we do not see it can be an indication that abuse at the hands of the [applicant] never occurred.” Section 2 of the Sexual Offences (Amendment) Act 1976 provides as follows: “(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant. (2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made by him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”