REGINA v Ben- Rejab

Factual and Procedural Background

On 7 May 2010, following a trial at Lewes Crown Court before His Honour Judge Warwick McKinnon and a jury, two appellants, referred to as Appellant A and Appellant B, were convicted of multiple sexual offences against the complainant, referred to as "C". Appellant A was convicted on four counts including rape, sexual assault by penetration, and sexual assault, and sentenced to a total of ten years' imprisonment. Appellant B was convicted on two counts of rape and sexual assault by penetration and sentenced to concurrent terms of imprisonment. Both appellants appealed their convictions with leave granted by the single judge.

The trial evidence detailed the events of 24 October 2008, when the complainant, aged 25, met the appellants and another male at a nightclub. Following consensual sexual activity with Appellant A, the complainant alleged non-consensual sexual assaults involving all three men at a flat. The prosecution case was presented on the basis of joint enterprise involving the three men. During the trial, Appellant A sought leave to cross-examine the complainant on her post-complaint behaviour, which was refused under section 41 of the Youth Justice and Criminal Evidence Act 1999. Appellant B's trial was complicated by a jury note questioning the basis for conviction on one count, leading to a late amendment of the indictment and further jury directions.

Legal Issues Presented

1. Whether the trial judge erred in refusing leave to cross-examine the complainant about her post-complaint sexual behaviour and social media activity under section 41 of the Youth Justice and Criminal Evidence Act 1999, affecting the fairness of Appellant A's trial.
2. Whether the late amendment of the indictment and the judge's directions in response to the jury's note on joint enterprise principles compromised the fairness of Appellant B's trial and rendered the convictions unsafe.
3. Whether Appellant A's sentence was appropriate given the circumstances of the offences and the complainant's sexual attraction to him.

Arguments of the Parties

Appellant A's Arguments

• The trial judge was wrong to refuse leave to cross-examine the complainant about her behaviour since making the complaint, including her social media activity, which was relevant to her credibility and the safety of the verdicts.
• The refusal of leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 undermined the fairness of the trial.
• There was mitigation in that the complainant was sexually attracted to Appellant A, which should have influenced sentencing.

Appellant B's Arguments

• The late amendment of the indictment to allow conviction on a basis not fully argued at trial deprived Appellant B of a fair trial.
• The defence was unable to adequately address the jury on the altered basis of joint enterprise without specific evidence of Appellant B's physical participation or encouragement beyond the digital penetration alleged.
• Appellant B's counsel would have cross-examined the complainant differently and made different submissions had the indictment been amended earlier.
• The jury was invited to convict on a basis neither party had fully addressed, rendering the verdict unsafe.

Respondent's Arguments

• The statutory provisions under section 41 are broad and exclude evidence relating to the complainant's sexual behaviour to prevent improper reasoning by the jury.
• The refusal to admit cross-examination on the complainant's social media activity was correct as it related to sexual behaviour and was not relevant to the specific incident.
• The late amendment of the indictment was lawful, and the judge's directions on joint enterprise were legally sound and sufficient to assist the jury.
• There was sufficient evidence from which the jury could infer Appellant B's participation or encouragement beyond the digital penetration.
• No injustice was caused by the amendment or the judge's directions, and the convictions are safe.
• The prosecution seeks a retrial in respect of Appellant B given the seriousness of the allegations.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully considered the refusal to allow cross-examination of the complainant about her post-complaint sexual behaviour and social media activity. It agreed with the trial judge that such questions related to "sexual behaviour" under section 41 of the Youth Justice and Criminal Evidence Act 1999, intended to exclude evidence that might lead the jury to improper reasoning based on stereotypes of sexual offence victims. The court found that the evidence sought to be adduced was of minimal value and that the complainant's credibility had been adequately challenged by other evidence. Therefore, the refusal did not render Appellant A's conviction unsafe.

Regarding Appellant B, the court analysed the jury's note indicating uncertainty about whether Appellant B personally committed the digital penetration, but acknowledging all three accused were present. The trial judge permitted a late amendment of the indictment to allow conviction based on joint enterprise liability without requiring proof that Appellant B personally committed the act. The court found that this late amendment and the judge's directions placed Appellant B at risk of unfairness, as the defence had not been able to fully address or challenge this basis for conviction. The evidence of Appellant B's participation or encouragement, absent the digital penetration, was minimal and equivocal. The court concluded that the convictions of Appellant B on counts 2 and 3 were unsafe.

On sentencing, the court rejected the submission that the complainant's sexual attraction to Appellant A was mitigating. It held that inviting others to join in non-consensual sexual activity negated any such mitigation and justified the sentence imposed.

Holding and Implications

The court DISMISSED the appeal against conviction of Appellant A, affirming the safety of his convictions and the appropriateness of his sentence.

The court ALLOWED the appeal of Appellant B, quashing his convictions on counts 2 and 3 as unsafe due to the late amendment of the indictment and insufficient opportunity for the defence to address the altered basis of liability. The court ordered a retrial on these counts with a fresh indictment to be preferred and re-arraignment within two months.

The prosecution indicated an intention to seek a retrial in Appellant B's case, acknowledging the seriousness of the allegations. The court made directions regarding bail applications and the publication embargo of the judgment to protect the interests of the complainant and the integrity of the retrial process.

No new legal precedent was established; the decision primarily affects the parties by affirming one conviction and ordering a retrial on others due to procedural fairness concerns.