B, R v [2003] EWCA Crim 319

Case No 2002/00540/Y4[2003] EWCA Crim 319
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 11 February 2003
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
MR JUSTICE JACKSON
and
MR JUSTICE ELIAS
Between
R E G I N ACrown- v -
Between
BRIAN SELWYN B
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR J JENKINS appeared for APPELLANTMR R A JONES appeared for CROWN
J U D G M E N TTuesday 11 February 2003THE LORD CHIEF JUSTICE:
[1]This appeal raises a worrying point of general interest, difficulty and sensitivity in relation to complaints arising out of sexual offences alleged to have been committed many years prior to the trial. The problem arises because in criminal law, unlike civil law, there is no statute of limitation. Furthermore, in relation to sexual offences Parliament has removed the common law protection which was provided by the requirement of corroboration in the case of allegations of sexual offences.[2]The facts of this case are, however, far from unique. The appellant, who is now 60 years of age, was convicted in the Crown Court at Merthyr Tydfil, before His Honour Judge Gareth Davies and a jury, of ten counts of indecent assault on the same complainant who was under 16 years of age and was his stepdaughter. On counts 1-3 he was sentenced to 12 months' imprisonment on each count; on counts 4-6 he was sentenced to 15 months' imprisonment concurrent on each count, but consecutive to counts 1-3; and on counts 7-10 he was sentenced to 21 months' imprisonment on each, but consecutive to the earlier counts. This made a total sentence of four years' imprisonment. The appellant now appeals against conviction by leave of the single judge.[3]The counts in the indictment alleged indecent assault between 7 September 1969 and 9 September 1972. At that time the complainant was between the ages of 7 and 11. She alleged that the assaults took place about three or four times a month on a regular basis throughout the period. They involved the appellant making her climb into bed with him undressed, forcing her to masturbate him, the appellant climbing on to her, putting his penis on her vagina and simulating intercourse until ejaculation. Occasionally he would put his finger onto or into her vagina and masturbate her.[4]The appellant's defence throughout was a complete denial that any of the alleged acts had taken place. The only explanation that he could give for the invention was that the complainant blamed him for the death of her mother, his former wife.[5]The stepdaughter attended psychiatrists between 1983 and 1989 for depression resulting from her fears of losing her job and of losing her boyfriend. Mention of abuse arose in those consultations. Because of the passage of time, limited evidence was available as to what had happened during the period that the complainant received treatment from the psychiatrists. There was reference to her taking overdoses and that she was emotionally disturbed. In addition, dates were given by her for a complaint of abuse which, while wider than the allegations made in the proceedings, covered the period which was the subject of her complaint. A note which was preserved read:
“Abused by step-father from age of 5 to 12, mostly touching.”
[6]There was also a suggestion by the complainant that on one occasion she and the appellant were disturbed by her brother. In addition she said that the window cleaner had made a remark to which she attached significance to the effect, “I know what is going on. I know what you do.”[7]The window cleaner gave evidence for the prosecution that he remembered an occasion when the complainant came out of the lounge very quickly. He thought that she was going to fall, so he grabbed her by the arm and asked her if she was all right. She replied that she was and went to do something in the kitchen. She was 11 or 12 at the time. She was wearing a nightgown or T-shirt. The appellant was in the lounge wearing a towelling robe. The window cleaner denied that there were any sexual undertones to what had occurred. He did not think that he had said anything like, “I know what you do”, in a way which conferred significance.[8]An application was made prior to the commencement of the trial that the proceedings should be stayed as amounting to an abuse of process. The submission was based on the delay that occurred since the incidents which had taken place almost 30 years before a complaint was made to the police in August 2001. Apparently, in addition, some informal complaints were made. We do not know their detail and we understand that they were ruled inadmissible by the judge.[9]On the application for the stay the judge gave a short ruling. The length of the ruling is criticised, but we do not accept that it can properly be criticised. It was possible for the judge to set out his reasons succinctly for reaching his conclusions. His ruling is none the worse for the fact that he expressed himself concisely.[10]The judge recognised that the delay inevitably led to difficulties for the defence. It led to difficulties in obtaining possible witnesses. The complainant's mother was now deceased. She might have been able to give useful evidence in one direction or another. The public house in which she worked no longer existed.[11]The appellant worked for days on end during the week away from home and outside Wales. If records had been available, they could have confirmed that he was not present at a particular time. If the complainant had been able to identify the dates on which she said an incident occurred, it might have been possible for the appellant to point to a particular date and say: “At least in relation to that date the complainant cannot be right. Look at my work records. I was not there”.[12]The judge asked himself what he regarded as being the standard question on an application for a stay for abuse of process, namely whether the defendant had satisfied him on the balance of probabilities that a fair trial would be impossible. He came to the conclusion that the defendant had not so satisfied him, although he recognised that a delay inevitably resulted in difficulty, in particular in relation to obtaining witnesses. The judge pointed out that he had to consider the extent to which possible unfairnesses to the defendant could be dealt with during the trial process by him, for example, ruling evidence inadmissible.[13]On the appeal Mr Jenkins did not challenge the test which the judge applied. Indeed, on behalf of the appellant he accepted that it was the appropriate test. He referred to three authorities, however, which he considered this court should take into account. The first is Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296. That is probably the most important authority, although it is possible to deal with that case in conjunction with the next which is R v Dutton [1994] Crim LR 910. Finally, he referred to R v Jenkins [1998] Crim LR 411. Dutton was a decision of this court presided over by Kennedy LJ. It involved indecency on a male. An indictment was stayed in relation to Dutton's co-accused. Dutton's counsel also applied for a stay. The Crown's case was that over a period of three or four years, when the complainant was aged 10 or 11, Dutton had sexually abused him. Dutton maintained that nothing sexual had occurred; they simply had a friendship based on mutual interests. It was common ground that he was a practising homosexual and he found boys attractive, but he contended that it was only older boys, and that he was not at any time attracted by boys of the complainant's age. He had been friends with the stepfather, and it was alleged that he had taken the complainant to various places where indecent acts occurred, including a caravan and to his hone where he lived with his mother and sister. Counsel submitted in that case that the delay was inexcusable. It was pointed out that the complainant had not merely waited until he became an adult, but had waited a long time after that. He made no complaint until he was aged 29. No real explanation was forthcoming and it was approximately 20 years from the time the first act was alleged to have taken place and, more importantly, fourteen years since the last act of indecency that the complaint was made. It was said that during that period a great deal had happened which caused the defence considerable difficulties if the trial proceeded. In particular, a number of witnesses had died, the caravan site owners were both dead, as were Dutton's mother and aunt. At the material time, he was working at the university and there was a caretaker who might have been of assistance to him in relation to what was alleged to have taken place there. He was no longer available and neither was the complainant's stepfather. The caravan had been significantly altered so that it was impossible for the defence effectively to investigate how it had appeared at the time when it was being misused. There was no apparent corroboration of the allegations. The defence was bound to be prejudiced by the fact that when eventually the complainant said something and went with his sister to the home of a police officer, the notes which were made in the course of a five-hour conversation had been lost. The complainant had not been medically examined when the incidents were fresh. There was no supporting medical evidence, and no scientific evidence of any kind. The judge rejected the submission, simply saying, “I am against you....”, and indicated that he was in favour of the submission made on behalf of the co-accused.[14]We have set out those facts in some detail since there are significant differences between that case and this. In this case the complainant gave an explanation. She explained how she felt unable to tell her mother. She was worried what her mother's reaction would be. The man about whom she was making complaint was somebody of whom her mother was genuinely fond. The complainant was in a very difficult position. Once she did not make the complaints, it became more and more difficult for her to do so later. They only surfaced a great many years later. We do not know why she eventually made the complaint, but we do know that this is not uncommon, because of what has taken place in relation to other cases. Today it is not unusual for people to come forward whereas before they felt it was not possible. We consider that there can be a distinction drawn between Dutton and this case on that ground alone. In addition, in that case the judge gave no reasons for his decision. He dealt with two different cases which were before him in different ways without giving any explanation why he was doing so. However, in their judgment this court said, allowing the appeal, that the court was at a disadvantage, that it was in no position to know how the judge's mind was working when he made the ruling; it would have been helpful if he had said a little more than he did. (That perhaps is an understatement.) That said, it had to be borne in mind that in cases of this sort it almost inevitably followed that there would be a substantial delay in making the complaint.[15]In Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296, Lord Lane CJ said that a stay should only be employed in exceptional circumstances. In assessing whether there was likely to be serious prejudice, the power of the judge to regulate the admissibility of evidence, and the trial process, which should ensure that all relevant factual issues arising from delay would be placed before the jury together with the power of the judge to give appropriate directions should be borne in mind. Judges should be assiduous to ensure that there really was evidence of serious prejudice to the extent that a fair trial could not be held before they found that the defendant had discharged, on a balance of probabilities, the burden of proof that lay on him before any power of the sort sought to be invoked could be used. The judge was entitled to decide as he did.[16]Lord Lane referred to the power to give (warning) directions to the jury. Such would surely be called for in a case in which not only had there been substantial delay, but it could be seen that witnesses who might have been able to give relevant evidence had disappeared. This was a case in which it really was incumbent on the judge, having taken the decision he did, to point out to the jury that what was said by the defence about the possible prejudice as a result of the delay was a matter to which they could and should properly have regard. If a judge was silent in relation to a topic, such as that when it had been advanced and canvased extensively by the defence, the very silence of the judge might tend to devalue what was perhaps the most important point which could be advanced from an adversarial point of view on behalf of the defendant. He was wrong not to assist the jury as to the possible adverse effects that delay could have occasioned the defence and not to refer in the summing-up to the age of the complaint and the difficulties that could well have posed. It was a difficult case and that misdirection, for such it was, was one which called for the appeal to be allowed in that case.[17]With respect to that report, it is not entirely clear whether the appeal was being allowed because a stay should have been granted, or because of a misdirection, or a combination of both. However, perhaps that is not important because the criticisms of the judge's decision which could be made in that case cannot be made here. Furthermore, as we will show later, we have come to the conclusion that it is not possible to criticise this judge's summing-up, although we recognise that a very heavy burden was upon the judge to make sure that the appellant would not be prejudiced because of circumstances over which he had no control.[18]Pausing at this point, it might be thought that some other test might be applied other than the one which was applied in this case which is accepted to be appropriate. However, the passage of time in this jurisdiction has never been a ground in itself for the staying of a prosecution. Just as the courts do not close the door to allowing appeals out of time if new evidence is forthcoming to show that someone who is innocent has been convicted, so if the prosecution decides that there is a case to go before the jury, the courts do not in the ordinary way consider it right to interfere with the prosecution process as long as (and this is an important qualification) a fair trial is possible. The question of who is to be believed in a case of this nature is very much an issue for the jury and not for the judge. The judge has the responsibility for giving the jury appropriate warnings demanded by the circumstances.[19]On the whole, the best time to asses whether a case is fit to be left to the jury is not before the trial has started but at the end of the trial when a judge is in a position to take into account the actual evidence presented to the jury by the prosecution and by the defence. As far as we are aware no application was made to this judge to rule again at the end of the trial. We certainly do not criticise those who were involved in the case for that. If the judge had been minded to take a different view to that he had indicated on the application for a stay, we are confident that he would have made that clear to counsel, and counsel, no doubt appreciating that, were not going to make an unnecessary application. Accordingly, we are satisfied that no complaint can be made about the judge's decision to allow the case to go to the jury for a verdict.[20]It is not suggested that anything of significance occurred during the trial which pointed in one direction or the other. At the end of the day the issue boiled down to who the jury believed. They could only convict the defendant if they were sure that he was guilty. If they came to the conclusion that they were not sure, this was no reflection on the complainant. It was unfortunate from her point of view that she had no independent evidence of any sort because of the delay to support what she said.[21]The judge gave a fair, careful and accurate summing-up. It is always possible to identify some passage in a summing-up which counsel suggests should have been expressed differently. However, Mr Jenkins commendably exercised self-restraint and did not make any allegations about the summing-up which could not be supported. The summing-up contained ample warning and left the issue correctly to the jury.[22]One matter with which the judge did not deal was the need for corroboration. It was not necessary for him to do so. Prior to the Criminal Justice and Public Order Act 1994, the Sexual Offences Act 1956 had provided that persons should not be convicted of sexual offences on the evidence of one witness alone unless the witness was corroborated. Prior to the 1956 Act, juries were instructed that they could convict without corroboration but that they should know that it was very dangerous for them to do so. It was a requirement of the common law that juries should have the corroboration warning. However, the 1994 Act changed the position. Section 33 provides:
“(1) The following provisions of the Sexual Offences Act 1956 (which provide that a person shall not be convicted of the offence concerned on the evidence of one witness only unless the witness is corroboration) are hereby repealed ....”
There is then reference to various statutory provisions and subsection (2) provides:
“Nothing in this section applies in relation to -- (a) any trial, or (b) any proceedings before a magistrates' court as examining justices, which began before the commencement of this section.”
There is then reference to various statutory provisions and subsection (2) provides: which began before the commencement of this section.”[23]This trial was not held prior to the commencement of section 33 of the 1994 Act, but it is right to point out that if the complaints had been made earlier and the appellant had been prosecuted earlier, he would have been able to rely on the previous law and in particular on the need for corroboration.[24]Before the change in the law, judges often explained why corroboration was looked for: namely that allegations of sexual abuse are easily made but difficult to refute. However, this was, understandably, thought to be unnecessarily offensive to women who are normally the victims of such an offence. It was considered that that was no justification for singling out sexual offences for a special warning as to the need for corroboration. However, the fact remains that it is more difficult for a defendant to defend himself against a mistaken allegation when that allegation is old than when it is more recent. The judge here clearly warned the jury about having to take into account the difficulties caused to the appellant because of delay.[25]Not only does a defendant have difficulty in a trial, but if he is convicted an appellate court has difficulty. The reason the jury convicted was almost inevitably because they felt the complainant was speaking the truth and the defendant was not. No doubt they took into account that generally people do not make allegations of this sort years after the event unless they believe them to be true. However, those who try cases know that sometimes -- and this is in the experience of each member of this court -- honest witnesses can convince themselves that something happened in their youth when it is subsequently shown that what they remember cannot be true. However, having said that, it is difficult to see how this complainant could have made up the details she described unless she was either lying (and that is difficulty to conceive having regard to what we know of her), or at one stage in her life she was fantasizing about what had happened. She went into detail in giving her evidence, such as having to remove the semen from her body when her stepfather ejaculated. Nonetheless, there are difficulties in ascertaining where the truth lies in a case of this sort.[26]One thing is clear: the jury saw the witnesses and we have not. Therefore they were in a better position to judge where the truth lay than this court. Furthermore, the trial process depends upon our confidence in the jury system. We have to have confidence that they made the appropriate allowance here for delay, and we also have to have in mind the intervention of Parliament. Parliament made the decision as to where they considered the right balance between the prosecution and the defence should lie in regard to the question of corroboration. We must not seek to go behind the decision of Parliament. Therefore juries in cases of this sort must be left with the difficult task of determining where the truth lies.[27]However, there remains in this court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even where the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious that we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task it is to see that the guilty are brought to justice. We must also do justice to the victim. In this case we are particularly conscious of the position of the victim. If she is right, she was treated in a most disgraceful way by someone whom she should have been entitled to trust: her stepfather. For years, for understandable reasons, as we have already indicated, she felt unable to make public what had happened. She is entitled to justice as well. But we also have to do justice to the appellant. At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted.[28]In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins says with force, able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, “I have not done it” is virtually no defence at all.[29]We have looked at all the circumstances of this case. We have sought to act in accordance with the principles we have set out earlier. In the end we have come to the conclusion that this is one of those residual cases where in the interests of justice we must set aside this conviction. That may be an injustice to the victim. It may be an injustice to the public in the sense that a guilty person is not going to suffer any further punishment than he has. But, nonetheless, having regard to the lapse of time, the very limited evidence that was available in this case, we have come to the conclusion that it is our duty to allow this appeal. Accordingly, we quash the conviction.

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