Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 333 (AAC)

Fecha: 26-Jun-2022

Analysis

Analysis

32.

When considering GE’s evidence we made a number of allowances. We bore in mind that he was giving evidence to us through an interpreter, which can make evidence less coherent, and can make it harder to judge a witness’s credibility through tone of voice or choice of words. We bore in mind that GE was being asked about events many years ago, and that memories fade. We bore in mind that when GE was being interviewed by police he did not have an interpreter: he did not make any complaint about that at the time, but it is plain from the transcript that he struggled to express himself with precision at some points.

33.

When considering X’s evidence we bore in mind that X did not give oral evidence in front of us and that we had not seen X being questioned in order to make a first-hand assessment of her credibility.

34.

We kept in mind the importance of avoiding assumptions when determining issues relating to allegations of sexual violence, and domestic violence. We bore in mind that there are no typical rapes and no typical responses to rape; that a delayed complaint of rape is not necessarily a false complaint; and that it is common experience that victims of domestic abuse may try to hide what is going on. We kept in mind that just because a person gives a consistent account about an event does not necessarily mean that account must be true, any more than inconsistent accounts must be untrue. We had in mind that different people can respond to unwanted sexual activity in different ways. Some may protest and physically resist throughout the event but others may be unable to protest or physically resist. This may be out of fear or because they are not a very forceful person.

35.

We bore in mind the cultural context. In particular, we noted that X described family and cultural pressure not to allege rape against her husband. We did not, however, place any weight on the assertion by GE’s solicitors that legal differences between the UK and Nigeria had some relevance to the proportionality of the decision, and GE did not seek to repeat that submission to us. That is a wholly unmeritorious submission that should not have been made. This is not a case about some sort of nuanced cross-cultural misunderstanding: X says that she was forcibly made to have sex twice against her will, and GE says that did not happen.

36.

In reaching our conclusion we have taken account of all of the submissions which we have read, and heard at the hearing and all of the evidence. We have not resolved all of the factual issues which have been raised because we do not consider that they need to be determined in order to reach a conclusion. As just one example, we have not determined the chronology of GE’s HIV diagnosis because that is not necessary to determine the appeal.

37.

We did not accept GE’s evidence. We found him to be a witness who could not be believed. In particular:

We reject GE’s suggestion that the police interview transcript is unreliable. It would have been transcribed by a professional; there is no reason to think it was not transcribed with care and indeed there are parts of the interview where the transcriber has written ‘inaudible’ rather than guess; and the phrasing used in interview is consistent with the phrasing used by GE when speaking English in front of us.

We reject GE’s suggestion that the transcript of the judge’s summing up is unreliable. Again, it would have been transcribed by a professional with care. We find that the learned judge accurately quoted from and summarised the evidence in the trial. The judge’s summary and quotes could only have come from the judge’s notes taken during the trial. If there had been any significant inaccuracies, we would have expected GE’s barrister to correct them before the jury retired to consider its verdict, but there was no such submission.

It follows that GE has been inconsistent about matters which are central to the allegation of rape. He has been inconsistent about when he last had sex with X, about whether he had sex with her at all after she came back from Spain in July 2017, and about whether he ever had sex with her in the kitchen.

Despite the passage of time, we would expect GE, if being honest, to consistently recall whether he had sex with his wife at all after she returned from Spain, and whether he ever had sex with her in the kitchen. Our conclusion is that GE is not being honest, and that has given different accounts because he is hiding the truth that he had sex with his wife against her will, once in the kitchen and once in the bedroom.

We did not take any account of alleged discrepancies about the timing of HIV diagnosis, or reasons for GE going to Nigeria, as we considered on close analysis of the evidence that those discrepancies could have arisen as a result of misunderstandings or language difficulties.

38.

In GE’s favour, we bore in mind that GE has no convictions or cautions and no pattern of behaviour of this type, but that was outweighed by the indications that GE was not truthful. We bore in mind that GE had been acquitted in the criminal court, but given that the criminal court applies a different standard of proof that has little bearing on our decision.

39.

We accept X’s evidence that she was forced to have sex twice against her will, for the following reasons:

X’s first disclosure was to her GP and not to police. She did not go to the police at that time. That points away from X maliciously inventing an allegation against GE to get him out of the house or for any other reason.

When police attended, X did not immediately disclose rape. It was only after talking to police for some time about her relationship that she made the disclosure. That also points away from X maliciously inventing an allegation against GE to get him out of the house or for any other reason.

X has been consistent, when asked for details, in describing two occasions when she was physically overpowered and made to have sex against her will, once in the bedroom when she had been asleep and once in the kitchen.

X maintained her account when cross-examined in the criminal trial. The learned judge’s summing up does not disclose any significant discrepancy between her evidence at trial and her detailed account in police interview.

Although GE has made allegations that his wife has been dishonest or committed fraud, no details have ever been provided, nor any evidence of a conviction, and so we do not give those allegations any weight.

Although X did not take a number of opportunities to make disclosures, and although there was some delay between the first rape and first disclosure, we find that is explicable by her concerns about the effect on her family, and her cultural belief that her husband was entitled to have sex with her.

We reject GE’s submission that her descriptions of what happened were not specific. X described two occasions of rape clearly, one in the bedroom and one in the kitchen, and the lack of specificity relates to other incidents where she says she submitted to his demands. It is not surprising that she is not specific about those other allegations: her evidence is that they happened often.

40.

We considered the apparent discrepancy in X’s first accounts to police with care. On the face of it, she told one police officer that she had been raped once or twice, and another that she had been raped four or five times. In assessing that evidence, the detail is important.

41.

X’s first account to police is recorded by the first police officer in this way: “She said she was fed up of how he treated her and, when asked what was meant by this, she stated that he had raped her either four or five times. She stated that she had shared a bed with him up until three weeks ago because he refused to move out. It was whilst in bed that he had sex with her without her consent. She continued saying and on one occasion he raped her in the kitchen while she was trying to cook. She then stated that Mr G was HIV positive and that he was aware of this at the time of raping her” .

42.

That police officer then called for a specialist DC to come to the scene, and when that DC spoke to X, it is recorded that “she informed me that she had indeed been raped by her husband once or twice. She stated that she doesn’t always want to have sex with her husband but sometimes she just lets him”. The contemporaneous notes written by that officer record slightly different words from X as follows “I don’t want to but he pesters me. Sometimes I let him but once or twice he has pinned me down and forced me without my consent I did not want to do it”.

43.

In a later statement X explained that “when the police arrived, I was asked questions about our relationship and I simply told the truth. I did not know until I was spoken to by the Police officer that I had been raped. It was a shock to me, in my culture an African male’s wife has to obey her husband’s every need....I didn’t know the laws around non-consensual sex. So when I told the police officer that I wanted GE to leave me alone because he had been sleeping with me without my consent, the officer told me that it was rape.”

44.

It is of note that X’s disclosure to her GP, which is her first recorded account, does not include the word ‘rape’: she referred to sex without her consent. It appears, therefore, that it would have been police, rather than X who first used the word ‘rape’ to describe what had happened. The short statements by police at the scene are not intended to be a verbatim account of X’s allegations: that is the purpose of the lengthy police interview, in which she clearly describes two specific incidents where she was forced to have sex, and a number of other incidents where she submitted to sex. We find that the apparent inconsistency in X’s first accounts to police arose because X and/or the police were sometimes using the word ‘rape’ to describe situations where physical force was used against X, and sometimes using it to include situations where X submitted to sex. The apparent differences in the number of rapes in X’s first disclosure to police is therefore not a discrepancy which causes us to disbelieve X.

45.

We have no hesitation in accepting X’s account and rejecting GE’s account.

46.

Dealing with the particular grounds of appeal:

Ground 1 is rejected. DBS did not make a mistake of fact for the reasons we have given.

Grounds 2 and 3 are rejected. There is in fact no requirement in the statutory framework for the DBS to determine whether GE was likely to repeat the same behaviour against vulnerable adults. The relevant test is whether the conduct, if repeated against a vulnerable adult, would endanger that adult. It is self-evident that forcing sex on a non-consenting vulnerable adult would cause them harm. Where the DBS made findings about the risk that GE posed to vulnerable adults, that was within the context of the tests of appropriateness and proportionality. There is nothing in the DBS’s findings about risk which is unlawful, and clear reasons were given by the DBS for its findings.

Ground 4 is rejected. The decision was proportionate. Given the finding that GE had non-consensual sex with his wife, it is not arguable that it is disproportionate to bar him from working with vulnerable adults. GE accepted as much at the hearing.

Ground 5 is rejected. The DBS’s choice of language in some documents is unfortunate and may have given the impression that GE’s account would be rejected unless he could provide some corroborative evidence. However, looking at the DBS’s material as a whole, it is clear that the DBS did not reverse the burden of proof.