Ben- Rejab, R. v

For the purposes of Youth Justice and Criminal Evidence Act 1999, sexually explicit online quiz activity may amount to sexual behaviour, although it involves no other person. Questions designed to invite a stereotypical inference from such behaviour were properly excluded and, in this case, could not affect the safety of the verdict.

A legally correct direction on joint enterprise does not cure procedural unfairness. Convictions are unsafe where a late change permits the jury to decide guilt on a factual basis which neither counsel has fairly addressed and for which the alternative evidence of participation is sparse and equivocal.

Following a jury trial at Lewes Crown Court, Ben-Rejab was convicted of two rapes, assault by penetration and sexual assault. Baccar was convicted of rape and assault by penetration arising from the same alleged group sexual assault.

Ben-Rejab appealed after the trial judge refused leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the complainant about sexually explicit Facebook quiz entries made after her complaint. Baccar appealed after, during deliberations, the indictment was amended and the jury were directed that they could convict him as a participant in joint enterprise even if unsure that he personally carried out the digital penetration.

The issues were whether the excluded questioning rendered Ben-Rejab’s convictions unsafe, and whether the late alteration of the basis on which Baccar could be convicted deprived him of a fair trial.

1. Ben-Rejab’s conviction appeal was dismissed. The court held that answering sexually explicit online quizzes was capable of being sexual behaviour within section 42(1)(c) of the Youth Justice and Criminal Evidence Act 1999. Sexual behaviour need not involve another person. The proposed questions could serve no proper purpose unless the jury were invited to infer, from the complainant’s later online activity, that she was the sort of person likely to consent to group sexual activity rather than to have been raped.

2. The trial judge had therefore rightly applied section 41. In any event, the proposed questioning had minimal value. The complainant had already been cross-examined extensively about inconsistencies between her victim impact statement and her subsequent social life. Its exclusion did not materially affect the jury’s assessment of credibility or the safety of Ben-Rejab’s convictions.

3. Baccar’s conviction appeal was allowed. The further direction accurately stated the law of joint enterprise. The prosecution did not have to prove which participant performed the relevant penetration if the jury were sure that the act occurred and that Baccar shared the requisite criminal purpose and participated by encouragement or readiness to assist. Mere presence was insufficient.

4. However, the late amendment and direction allowed the jury to consider an alternative factual basis for Baccar’s liability. Apart from the alleged digital penetration, the evidence of his participation or encouragement was slight and equivocal. Neither counsel had addressed that altered factual case, and the defence had no proper opportunity to do so. There was a real risk that the jury convicted on a basis not fully confronted at trial.

5. The court quashed Baccar’s convictions on counts 2 and 3 and ordered a retrial on a fresh indictment. Ben-Rejab’s application to extend time to renew his sentence application was refused.

• Court of Appeal (Criminal Division): In this judgment, [2011] EWCA Crim 1136, Ben-Rejab’s appeal against conviction was dismissed. Baccar’s appeal was allowed; his convictions on counts 2 and 3 were quashed and a retrial was ordered.

• Lewes Crown Court: On 7 May 2010, following trial before Judge Warwick McKinnon and a jury, Ben-Rejab was convicted of rape, assault by penetration and sexual assault under the Sexual Offences Act 2003. Baccar was convicted of rape and assault by penetration. Both received concurrent custodial sentences.