Cooper & Anor, R v [2003] EWCA Crim 29

Neutral Citation No. [2003] EWCA Crim. 29 Case Nos: 2002/2729/W5Case No 2002/2761/W5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT
NOTTINGHAM (HHJ BENSON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 January 2003
Before
LORD JUSTICE MANCEMR JUSTICE SACHSMR JUSTICE MITCHELL
Between
RRespondentALAN DAVID COOPER and JULIE BETTSAppellantTina Dempster (instructed by Messrs Mundy Coutts Wood) for First AppellantAmanda Denton (instructed by Messrs Best & Co.) for Second AppellantRobert Brown (instructed by the CPS) for RespondentHearing Hearing date : 29 November 2002JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Introduction

[1]On 15th April 2002 in the Crown Court at Nottingham before HHJ Benson, the appellant Cooper was convicted on counts 1 to 3 of indecency with a child and on counts 4 –6 of indecent assault, while the appellant Betts was convicted on counts 2 and 3 in relation to which she was charged jointly with Cooper. On 10th May 2002 HHJ Benson sentenced Cooper to 2 years imprisonment concurrent on each of counts 1 to 3 and 4 years imprisonment concurrent on each of counts 4 to 6, to run concurrently with the sentences on counts 1 to 3; Betts was sentenced to 15 months imprisonment concurrent on counts 2 and 3. They now appeal against their convictions by leave of the single judge.[2]Cooper and Betts formed a relationship in about 1991, and lived together intermittently thereafter. Betts had a previous daughter, E, born in July 1988. Cooper and Betts had twins, N a girl and J a boy, born in October 1993. Another child, S, a boy was later born in March 1995. N and J also had two other brothers, X and Y (born in September 1991) as well as another younger brother, W (born November 1997). E, N, J and S were all taken into care for a period from June to September 1996, then again, at Betts’ request, from December 1996 to December 1997. On 6th October 1998 they were again removed from Betts’ care, because of concern about their welfare and not because of any sexual complaint being made. They have not lived with either of the appellants since that date, and there has been no unsupervised access. On 28th May 1999 the twins and S went to live with foster parents, CM and DM. Arrangements for placing the twins for adoption broke down in or about August 2000. They knew by October 2000 that the adoption would not proceed and received a letter of explanation to that effect from the proposed adoptors by 1st November 2000.[3]Count 1 related to E, and there is no appeal in respect of it. Counts 2 and 3 charged indecency towards J and N respectively committed by both appellants jointly. Count 4 charged indecent assault on N, committed by Cooper by encouraging J to have intercourse with N. Count 5 charged indecent assault on J by touching his penis. Count 6 charged indecent assault on N by Cooper by simulating intercourse with her. All counts related to offences allegedly committed between 28th October 1993 and 6th October 1998.[4]We start with a summary of the circumstances giving rise to these appeals.. It will be necessary to go into them in greater detail later. The charges arose from corresponding allegations made by J and N in December 2000 and then by E in January 2001. Certain allegations were initially made to J’s and N’s foster parents. J and N were then video interviewed on 14th and again on 28th December 2000 and E was video interviewed on 5th January 2001. During the course of those interviews, particularly the second interview, J and N made allegations of sexual abuse involving other persons as well as their parents. The Crown proposed to rely upon and adduce in evidence versions of the first video interviews, slightly edited to eliminate in the case of N all but one reference (cf paragraph 11 below) to her being abused by her older brother Y, and to eliminate in the case of J references to one of Cooper’s friends, Johnny, locking him a room in Cooper’s house and giving him cigarettes to smoke. The Crown did not propose to adduce any part of the second video interview. Counsel for the appellants conceived that it would assist their clients to have the evidence of what had been said to the foster parents and all of the video interviews put before the jury.[5]Before the jury was sworn at the outset of the trial on 8th April 2002, counsel for the appellants submitted that the jury ought to know of the full range of complaints made by J and N, either by the relevant material being adduced in evidence or, that failing, by cross-examination. It was suggested in the course of submissions that there were “strikingly similar features” about the other complaints and “inconsistencies”. The judge made clear that he would not permit the material to be adduced by the Crown (even if the Crown had wished to adduce it) and that all that the defendants might do would be to cross-examine, for which he considered that they would need leave. It is submitted, and it may well be, that he had in mind in this connection the provisions of s.41 of the Youth Justice and Criminal Evidence Act 1999, but it is clear that he was also strongly influenced by his perception of the difficulties that could arise for the complainants, for the defendants and for the conduct of the case generally, if the question of other complaints was opened up for investigation.[6]At page 1 of the transcript he observed that the extent to which it went to credit or an issue could be a moot point, but that “it may be that one would be allowed to prove the previous inconsistent statement by playing that part of the transcript that has been excised to show the inconsistency”. Later, at page 20, he said:
“What I am saying here is that any of this material can only be adduced on the basis that it is inconsistent with something that is in the video and inconsistent with possibly something that is said in court over the video-link” and that “It cannot be introduced until then and then it can only be introduced in a controlled way ….”
He also suggested that counsel should agree admissions. The application ended with submissions from the defence side that there could not be a fair trial, if all that was put before the jury was the evidence that the Crown proposed, and with a reference to s.78 of the Police and Criminal Evidence Act, presumably by way of suggestion that the judge might exclude the Crown’s evidence. Thereafter, certain admissions were however formulated between counsel and, in a limited and modified form, accepted for putting before the jury. During the course of the trial, certain prior and allegedly inconsistent statements were put to the complainants[7]The grounds of appeal now submit that s.41 was irrelevant, that evidence of the other complaints was admissible and should have been admitted, that cross-examination generally with regard to them should have been permitted, and that the trial was unfair and the verdict unsafe accordingly.

The circumstances in more detail

[8]The formal admissions put before the jury included information as follows: that shortly after they started their foster placement in May 1999, concerns were expressed about the twins, who were referred for counselling; they then disclosed inter alia that they had watched their birth parents having sex, and had been locked into the bathroom while their parents had sex and not allowed to leave; they were asked on 12th June 1999 whether anyone had touched or “shagged” them, and did not make any such allegations at this time; and on 14th November 2000 they disclosed that their parents had told them what to do, and on 12th December 2000 N told her foster mother, CD, that her father had interfered with her and had “shagged her a lot”; E made her video interview after the twins, was approached by the police and had not made the allegations against Cooper prior to her interview. Then, most materially for these appeals, there was this admission: “N and J had made complaints about sexual activity with adults other than Julie Betts and Alan Cooper (the Defendants). These adults are not, and were not, foster carers”.[9]While not the subject of an admission, a statement given by CD to the police recorded that N had also said on 12th December 2000 that her “dad shagged her a lot and she didn’t like it and always cried”. During her evidence at trial, N was cross-examined about saying this, and said that she did not remember saying it. Both J and N were also cross-examined about the fact that they had not said anything to the NSPCC, who asked them on 12th June 1999 whether anyone had touched or “shagged” them.[10]Separate video interviews followed with J and N (by now aged just over seven) on 14th December 2000. With some editing these became the twins’ evidence in chief. J said that “My daddy took my willy and played with it”, and described how he was standing up in his mother’s bedroom and his father “creeped up”, pulled his pants down and started pulling it, up and down, and flicking it. This account came out in disjointed fashion, as J added different parts of the picture. J also said that his father had showed him “how you snog and shag”, and had told him to take N’s pants down and get her on the bed. He also said that his parents had shown him how to perform sexual intercourse, “snogging and kissing” and “holding privates”. He went on to describe having been by himself in their bedroom, when they chucked off the quilt and he “saw their willy and fanny” and “Mummy’s boobies and daddy’s willy”. They were lying on top of each other, because they loved each other, “shagging”, which involved “going up and down”. His father had told him this was shagging. He then went back to what his father had taught him, and said that his father had said:
“Do you know when I’ve left, pull your sister’s pants down, it’ll be great fun”
. He said that he had then done this with N, getting “on top of her”, going up and down, and that “my willy’s touching her fanny” and he was kissing her. He said that his mother had seen them, and “She just saw us. Didn’t do nothing. Says, just said: ‘Come downstairs, get changed and come downstairs’” A little later, in answer to a question whether he had told his father what he had he done, he said that he had, and his father had said “Good boy”. He had only done this once to N. His father had touched his willy on three or four occasions, and he had told his mother and his foster parents. He had only seen his parents “shagging” once. Other passages which were edited from the version of this transcript put before the jury mentioned in insignificant terms his “father’s friend” John who, after smoking a cigarette, used to give it, with John’s “germs on it”, to J to smoke.[11]N in her interview described seeing her parents “shagging” in her mother’s bedroom, going up and down on top of each other and kissing, after her mother had thrown the quilt off, but she said that this took place in the presence of E, J and S. She said that her parents had told her it was called “shagging”. She said that, after they had finished, “They told J to do it to me”. Later she said that her father had showed J how by getting on top of her mother, saying and showing that he was putting his private in his mother’s private. J had then copied this, after taking off her pants. When asked specifically who had actually told J to do it, she said that it was her father, and that her mother had told him not to do it. E had also told J not to do it, but J had listened to his father, who kept saying: “Do it”. It had hurt and she had been crying. Afterwards, her father had said to J: “Yeah, you’ve done it, good boy”. Later, she said that J had also done the same thing on the next day, on this occasion copying her father who “was doing it with, erm, his other girlfriend”. She went on to say that her father had also shagged her, getting on her when she was asleep, lifting up her nightie and doing to her what J had done. He had woken her by going up and down, with “his private … touching my belly”. This had happened once, on an occasion when she was staying alone with him in his house. She felt ”angry and sad”. In the same video, as it was played to the jury, reference was also made in one question by the interviewing officer to N having told her “about Y shagging you”. This, although the jury would not have known it, derived from a passage edited out from the version put before the jury. In that and another passage edited out, N had described in detail how James had done the same thing to her as J, and how her mother had heard a noise and come upstairs and stopped him, and been very cross. In another, unedited, passage, N mentioned that “J done it to my dad’s girlfriend”.[12]According to a statement taken by the police from CM, on 18th December 2000 N told CM that she had something to tell her. N then said that Johnny had “shagged her and put his hands down her pants”. N said that, on one occasion when Johnny had “shagged” her, Johnny had been watching. She said that her father had also “shagged” E. (E did not say this in her later video interview.) She also said that “Johnny shagged me lots, Johnny’s friend shagged me and Johnny’s friend’s girlfriend”. We interpose at this point that N’s second interview gives some reason to think that both “Johnny’s friend” and “Johnny’s friend’s girlfriend” may here have been intended by N as muddled references to one and the same person, the unnamed girlfriend of Johnny. N went on to describe, with detail into which we need not go, how that girlfriend had also woken her up and abused her by rubbing her private parts on N’s, causing N to wash herself herself with soap and shampoo as soon as she got home. E was in the room, she said, when this happened. Asked by the officer both generally and later specifically with reference to Johnny, whether there was anything further that she wanted to say, all she told the officer was about another boy, a friend, who had, she said, shagged her when she was upstairs in bed.[13]J in his second interview, not before the jury, told the police that John had crept up to his bed, while he was in it and quickly touched his private, before going out. He also said that his mother had let him feel her breasts and that his parents had snogged each other when holding him and he did not like because he was “only six month old”. Asked how he remembered that, he said he just did.[14]E in her interview, which was before the jury, said that Cooper used to open his dressing gown and expose his penis, which he called his “tinker” in front of her, N and Betts. Betts thought it was funny, but N and she thought it was “disgusting”. Cooper had on some occasions also stroked N’s vagina when changing her nappy in a way which E thought wrong. He had on one occasion told E that she had “big boobs” and had tried to touch her vagina, over her clothing, but E had pushed him away and threatened to call the police. Cooper and Betts used to have sex a lot, with the door open and E, N, J and S used to spy through the gap at the hinge side of the open door. Cooper and Betts would then stop and Cooper would tell them to go away.[15]At trial, both J and N were also cross-examined about the inconsistencies between their accounts about seeing their parents having intercourse (J having said that he saw this alone and N having said that she, E and S were also present) as well as between their and E’s account (E having recounted no more than spying by all four of them through the crack in the door).[16]On 29th December 2000 N was seen by a doctor, who found that her hymen was abnormal, in a manner consistent with a history of vaginal penetration. Having regard to the position regarding other complaints, the judge did not permit the Crown to adduce this evidence before the jury. We were not shown a transcript of submissions or of the judge’s ruling on this point.[17]Cooper and Betts were arrested on 16th March 2001 and both denied any sexually inappropriate conduct.

Analysis and consideration of Grounds on Appeal

[18]Counsel for the appellants accepted before us the correctness of the judge’s view that the Crown could not have put in evidence as part of the Crown case evidence from CM or evidence from J and N (in the form of J’s and N’s second video interview and the edited part of N’s first interview) regarding complaints made against other people. To do this as part of the Crown case would have been irrelevant and distracting for the jury, quite apart from any potential invasion of the interests of the third parties who would have been involved without having been charged.[19]However, counsel submit that the number of the other complaints, the manner in which they came to be made and their nature were all matters that were relevant to J’s and N’s credit, and so permissible subjects of cross-examination. They submit that the judge was wrong to consider that any leave to cross-examine about such matters was required; and that, as a result of such cross-examination, it should have been possible, in effect, to put before the jury the whole of J’s and N’s conversations with CM and of their first and second video interviews. If necessary, the Crown, they submit, should have called CM to enable such cross-examination, or it could have made further admissions. In the event, it is submitted, the jury had only a “sanitised” version of what occurred, and that this might have affected the jury’s verdict. We note, however, at the outset that counsel accept that that the appellants had and have no basis for suggesting that any of the other complaints were false, any more than they could or can say that they were true.[20]We will start with the question whether the judge had a discretion to exclude under s.41 of the Youth and Criminal Evidence Act 1999. That section provides:
“(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court – (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied – (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either – (a) that issue is not an issue of consent; or (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar – (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence. (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. (5) This subsection applies if the evidence or question – (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. (6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).”
[21]It is common ground that subs.(3)(a) here applies. The issue was not consent, but whether the abuse charged ever took place. So leave was required under subs.(1) for any evidence to be adduced or any question to be asked in cross-examination on behalf of either of the appellants “about any sexual behaviour” of any complainant, the complainants here being J, N and E. Under s.42(1)(c): “‘sexual behaviour’ means any sexual behaviour or other sexual experience whether or not involving any accused or other person, but excluding [subject to presently immaterial exceptions] anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused”.[22]The authorities draw the distinction between, on the one hand, questioning about a complainant’s sexual behaviour or other sexual experience and, on the other, questioning about other complaints made by a complainant of sexual abuse of him or her: see e.g. R. v. S [1992] Crim LR 307, part of the judgment in which is transcribed in R v. Todd (No. 96/7540/W4; 21/3/97); R v. Robinson (No. 98/5243/X3; 7/5/99); R v. T and H [2001] EWCA Crim 1877; 1 WLR 632 (26/7/01); and R v. P.B. [2001] EWCA Crim 3042 (21/12/01).[23]We note, however, that in these cases there was also material justifying counsel in suggesting to the complainant that the other complaints were false. Keene LJ, giving the judgment of the court in R v. T and H made clear that this is a matter of considerable potential importance. He pointed out at para. 40 that, if a complainant was asked about whether she had made another complaint, admitted making it and denied that the complaint was a lie, the defence would usually be bound by the answer (in which connection he cited R v. S, above). But the complainant’s sexual reputation in the eyes of the jury might well be damaged by that alone, the very mischief that the 1999 Act was designed to prevent. That, Keene LJ said, was a matter for proper concern. He went on at para. 41: “However, it is open to a judge to guard against abuse of the system. The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them. It would be professionally improper to put such questions in order to elicit evidence about the complainant’s past sexual behaviour as such under the guise of previous false complaints. But in any case the defence must have a proper evidential basis for asserting that any such previous statement was(a) made and(b) untrue If those requirements were not met, then the questions would not be about lies but would be “about [the] sexual behaviour of the complainant” within the meaning of section 41(1). The judge is entitled to seek proper assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue.[24]In R v. T and H the court in para.22 expressed the view that questions of a complainant going to “failure to refer to these allegations [i.e. those charged] on occasions when she was making other sexual allegations or, indeed, to her making inconsistent statements in the past” were relevant questions which would not be “about” sexual behaviour or experience.[25]At paras.42-43 the court also considered questions proposed to be put to the complainant’s brother (who allegedly witnessed the complainant’s rape) about his failure to mention this, or to mention anything other than seeing the complainant’s grandmother “interfering” with her, when first interviewed by the police. It was submitted “that such questions would not be about the complainant’s sexual behaviour, but about her brother’s veracity”. Keene LJ said at para.43:
“We see the force of the point made. What is clear is that such questions do not go in any direct sense to the credibility of the complainant but rather to the issue of whether the rape happened. Such questions are not therefore excluded by section 41(4), which concerns only the credibility of the complainant. It is, however, it seems to us, a matter for the trial judge to determine in the light of the way the arguments are put to him, the admissibility of such questions and this court should not usurp his function.”
[26]Applying the views expressed in para.22 of its judgment by the court in R v. T and H, the position in the present case is that questions about failure to mention the complaints subsequently made were permitted in the case of both J and N – see paragraph 9 above. Further, questions were permitted with regard to alleged inconsistencies in and between their and E’s accounts with regard to the matters charged – see paragraph 15 above.[27]With regard to questioning about other complaints, R v. T and H indicates that, absent any basis for suggesting that such complaints were false, such questioning falls to be regarded as being “about [the] sexual behaviour of the complainant”. The rationale, as we see it, must be that, if evidence is adduced about complaints which cannot properly be challenged as false, then the intention must be to elicit that other sexual behaviour or experience, the subject of such complaints, and so to deploy it in one way or another to the complainant’s discredit, e.g. by arguing that it has been wrongly transposed and attributed to the present defendant in the complainant’s account. On that basis, the judge would have been right to consider that the extent to which it was permissible was a matter for his discretion. If that is so, then we would not fault the exercise of his discretion. The formal admission which we have quoted in paragraph 8 above meant that the jury was aware of the fact of other complaints. The judge considered that it would not be possible to keep control of the trial or over its ambit, in the interests of all concerned, including the defendants as well as the complainants, if cross-examination was to be permitted regarding the whole course of events regarding other complaints, starting with what was said according to CM and proceeding through the edited part of N’s first interview to the contents of J’s and N’s second interviews. We sympathise with him in this view. There is every likelihood that J and N would in general terms have confirmed making the complaints; a possible alternative is that they may not have remembered making some of them at all, e.g. if they had blocked events, even though true, from their mind. How the jury could assess whether that had occurred is difficult enough to see. As to more detailed matters such as the order of complaints or why and when some of the other complaints were made later than the complaints the subject of the present charges, it seems most unlikely that, in a trial taking place in April 2002, J and N would have been able to recall the detail or to offer any real assistance. They would have been very likely to become confused about the questioning and its relevance; the trial could easily have become drawn into examination of completely independent matters.[28]Counsel for the appellants submit that such problems could be resolved by calling CM and playing the full video interviews with J and N. But this could only be done if this material constituted either(a) evidence going to the issues in the case or(b) evidence of inconsistent statements admissible to contradict the complainants. In this case, (a) is not suggested; the material is put forward as going to credit. As to (b), this pre-supposes that J and N had denied making the other complaints, when reminded of them. This is in our view unlikely.[29]Even if they had denied making them, the circumstances in which inconsistent statements may be adduced in evidence are defined by ss.4 and 5 of the Criminal Procedure Act 1865. The inconsistent statement must in each case be “made by him [or her] relative to the subject-matter of the indictment or proceeding”. This concept was closely considered by this court in R v. Funderburk (1990) 90 CAR 466, where on charges of sexual intercourse with a girl under 13, “both the prosecution and the girl herself were putting the girl forward as a virgin before the first incident, and the jury cannot have doubted that she was telling them of the loss of her virginity” (p.469). The court had to consider, first of all, whether the judge was right to exclude cross-examination to the effect that she had told a friend that she had, prior to the first incident charged, had had intercourse with two named men and consequently wanted to undergo a pregnancy test. At the time of the trial in 1988, the only equivalent to s.41 of the 1999 Act was s.2 of the Sexual Offences (Amendment) Act 1978, which only applied to charges of rape. The court held that the cross-examination should have been permitted, since it might have affected the complainant’s standing with the jury. The court then moved to what is, for present purposes, the material part of the decision, the scope of s.4 of the 1865 Act. It regarded this as reflecting the general distinction between matters going to an issue and matters going simply to credit. In this regard, the court also said at p.469:
“But as relevance is a matter of degree in each case, the question in reality is whether or not the evidence is sufficiently relevant. For in order to keep criminal trials within bounds and to assist the jury in concentrating on what matters and not being distracted by doubts as to marginal issues, it is necessary in the interests of justice to avoid multiplicity of issues where possible. In every case this is a matter for the trial judge on the evidence and on the way in which the case is put before him.”
[30]In Funderburk itself, the account given and the allegation as to loss of virginity were part of the Crown case. The court said that “Unchallenged, the descriptive details could give the account the stamp of truth: detail often adds verisimilitude, and it seems to us that it certainly would have here” (p.475). It was in this context that the court also remarked that it was “disposed to agree with the editors of Cross on Evidence …. that where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point”.[31]It is clear that Funderburk was concerned with a very different factual situation to the present. Here, the Crown put forward no case whatever regarding the other complaints. Further, it would have been difficult to keep the trial within bounds or to ensure that jury concentrated on what mattered and was not distracted by uncertainties and doubts as to marginal issues, if evidence had been permitted regarding the other complaints. In these circumstances, we do not consider that evidence of the making of the other complaints would have been admissible under s.4 or s.5 of the 1865 Act, even if J and N had, improbably in our view, denied making them.[32]We will consider the position, if we are wrong on the above. We start with the position if s.41 is, contrary to the clear indication in this court in R v. T and H, assumed not to apply. On that assumption, the judge would have had no general discretion to restrict cross-examination. In so far as he prevented questioning and answers that might have affected J’s or N’s standing with the jury, he was on this basis wrong to do so. But, by virtue of ss.4 and 5 of the 1865 Act, the defendants would have been unable to adduce evidence to disprove J or N, so far as either denied making any other complaints. So far as J and N repeated or endorsed the complaints, the defendants, even if they had had any material tending to disprove the truth of the other complaints (which they did not and do not have), would have been unable to adduce it in evidence: see e.g. R v. S (above) and R v. Todd (above).[33]The question would then arise whether, in the circumstances assumed in paragraph 32, the verdict could be regarded as unsafe, because of any restriction on cross-examination. We have ourselves viewed all the videos as invited by counsel, to enable us to consider the submissions on this aspect in their light.[34]The focus of the jury’s attention is bound to have been on the opposing accounts given by the complainants and Cooper (since Betts chose not to give evidence) regarding the many incidents of alleged abuse. On the one hand, the complainants stood by their complaints. Against that, Cooper denied any impropriety at all. There was on any view directly relevant material that the defendants could deploy in order to try to persuade the jury that the complainants’ case was or may have been fabricated or even (though this must have seemed unlikely) transposed from some other incident. In addition to the formal admissions made, regarding the absence of any complaint in answer to the question put by the NSPCC on 12th June 1999 or at any time prior to November 1999, the jury heard cross-examination in the same area (paragraph 9 above); the jury also heard and saw inconsistent accounts being given by, and cross-examination on the inconsistencies in relation to, J, N and E (cf paragraph 15 above, regarding their presence when the appellants had sex, and the circumstances in which any of J, N, E and S saw this); the jury also heard N being cross-examined to the effect that she had told CD on 12th December that Cooper “shagged” her “a lot”, whereas her evidence was that it was only once (paragraphs 9 and 11).[35]The jury also knew from the formal admissions that other complaints had been made of sexual activity with adults other than Cooper and Betts and who were not foster parents (paragraph 8 above). We have to consider whether it might have been affected the jury’s verdict, if cross-examination had been permitted regarding such other complaints, without any suggestion being made that they were themselves false. Where the other complaints were, almost in their entirety, made after the complaints charged, the suggestion that their making and/or the circumstances in which they were made throw doubt on the veracity of the complaints charged seems to us remote.[36]It is said that there could have been cross-examination as to “inconsistencies” in the complainants’ accounts regarding other abuse, and we asked for and were given a list. These involve(a) comparing suggested similarities between the complaints made against different people (e.g. Y and J),(b) comparing certain contrasts between the accounts given at different points (e.g. original statements by N on 7th and 12th December 2000 that Johnny had punched her in the stomach compared with N’s statement on 12th December 2000 that Johnny had “shagged her lots” and her failure to repeat any such statement at all on 28th December 2000),(c) comparing N’s statement to CM on 18th December 2000 that Johnny had taken her home and put his “private in her fanny” instead of taking her to McDonalds with a statement by N in her second video interview on 28th December that Johnny’s girlfriend had abused her instead of taking her to McDonalds – we note however that in her second interview N said that the incident involving Johnny’s girlfriend occurred on a day when Johnny and his girlfriend had agreed to take her to McDonalds together and had failed to do so,(d) comparing allegations to CM on 18th and 19th December 2000 involving E (e.g. that Cooper had “shagged” E and that, on another occasion, when E and N were asleep in their bedroom, Johnny, had “shagged” E and had then hidden under the bed when Cooper came into the room, whereupon N had whispered to Cooper that Johnny was under the bed, and Cooper had told Johnny to get out) with the absence of such allegations by E, and with the absence of such statements by N in her second video interview,(e) suggested inconsistencies about abuse by Johnny’s girlfriend or friend[’s] girlfriend – although as we have observed the transcript of N’s second video (p.9) suggests as a possible answer to these that she meant one and the same woman, and(f) the differences between J’s account to CM on 18th December that Johnny had touched his “willy” and the only allegation made by J in relation to Johnny in his first video interview, that Johnny had locked him into a room and given him cigarettes.[37]This list shows, as a matter of fact, that there would have been matters about which J and N could have been asked, but it would have been extremely difficult to do so in any manageable way, and the relevance and value of cross-examining one witness about what another may or may not have said is very doubtful. In reality also, most of the suggested inconsistencies are not inconsistencies, but could reflect events all of which occurred. On this basis, they could be explicable on the footing that J and N were, in late 2000, trying to recall (and to face up to recalling) widespread abuse, in which the participants were not just the appellants and sometimes children of the family who had been corrupted by the appellants, but also included family friends, such as Johnny and his girlfriend. The situation could well have arisen, which the judge appears to have foreseen, where the Crown would have had to put to the appellants that this was the true situation. We do not see how cross-examination of J and N raising such a possibility would have assisted the jury, still less have assisted the appellants, on the central issues which the jury had to determine regarding the episodes of abuse charged. This is particularly so in circumstances in which the answers given by J and N would have had to be accepted and there would have been no basis for putting CM’s evidence or the edited part of the N’s first video or either second video before the jury. If J and N denied or could not recall the relevant statements, they could not be contradicted with evidence of them. If they admitted making them, they would in all probability have sought to justify them, which would not have assisted the appellants.

Conclusions

[38]For the reasons we have given, we consider that the judge was right to consider that he had a discretion under s.41 and that there is no basis in this court for disturbing his exercise of his discretion under that section. That is sufficient to dispose of this appeal. Even if that were wrong, however, we add that we do not consider that there is any reasonable possibility that cross-examination seeking to elicit from J and N the whole course of complaints which they made regarding abuse by others apart from their parents, combined with suggestions that this should in some way be regarded as impacting on J’s and N’s credibility in relation to the present charges, could have made any significant difference to the jury’s conclusions on the central issues of guilt or innocence on the present charges. In our view therefore these verdicts are safe in any event. These appeals will be dismissed accordingly.

Cited in 4 later judgments