EW, R v [2004] EWCA Crim 2901

Case No 2004/0105/C3[2004] EWCA Crim 2901
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 9 November 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE DOUGLAS BROWN
MR JUSTICE GIBBS
Between
R E G I N ACrown-v-
Between
E.W.
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R CROZIER appeared for APPELLANTMR D OSBORNE appeared for CROWN
J U D G M E N T

LORD JUSTICE CLARKE: This is the judgment of the court.

[2]On 1st December 2003, in the Crown Court at Plymouth, before Mr Recorder Mott QC, the appellant was convicted by majority verdicts of one count of buggery, on which he was convicted by a majority of 11 to 1; one count of indecent assault on a female, on which he was convicted by a majority of 10 to 2; and three counts of indecent assault on a male, on each of which he was convicted by a majority of 11 to 1. The jury acquitted him of two further counts of indecent assault on a female (counts 1 and 3). On 12th February 2004 he was sentenced to six years' imprisonment for buggery which had been count 4 on the indictment, two years' imprisonment consecutive for indecent assault on a female which had been count 2 on the indictment, and three years' imprisonment concurrent for indecent assault on a male which had been counts 5 to 7 on the indictment. The total sentence was eight years' imprisonment. The Recorder made an order under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 extending the appellant's licence period to the whole of his sentence. He also made an order disqualifying him from working with children under section 28 of the Criminal Justice and Court Services Act 2000. Having been convicted of a sexual offence to which Part 1 of the Sexual Offenders Act 1997 applies, the appellant was also directed to comply with the provisions of section 2 of the Act, namely notification to the police indefinitely.[3]He appeals against his conviction by leave of the full court, May LJ, Eady and Hughes JJ, after refusal by the single judge, Holland J. The court adjourned his appeal against sentence, in respect of which leave had been granted by the single judge, to the court hearing the appeal against conviction.[4]The Recorder rejected an application, which was made at the outset of the trial, that the proceedings be stayed as an abuse of process on the basis that the appellant could not receive a fair trial in view of the delay. A similar application was rejected during the trial itself following the Recorder's earlier ruling. The Recorder also rejected a defence submission of no case to answer in respect of the counts relating to the female victim. The first two grounds of appeal relate to the rejection of those applications. There are, however, four grounds of appeal in all.[5]The complainant in counts 1 to 3, whom we shall call S, was the youngest of three children born to MP (Marianne). S was born on 20th September 1964. Her siblings, a brother C and sister J, had been born in 1947 and 1953 respectively. The complainant in counts 4 to 7, whom we shall call M, was J's son. He was born on 11th May 1967. He was initially placed into foster care until about 1974 or 1975. He then spent about a year in Crawley with J and his father. He went to live with Marianne and the appellant in 1976, although not on a full-time basis until 1977 or 1978.[6]At the time of the majority of the allegations, Marianne was running a guest house in Newquay which C had purchased in May 1972. The appellant was staying there. He eventually married Marianne in 1976. They later divorced. Unfortunately Marianne died in 1999.[7]Count 1, on which the appellant was acquitted, was alleged to have occurred when S was aged 7 or 8 years old. The alleged assault involved the appellant placing his hand down her pants and putting a finger inside her vagina when she was sleeping in the same room as the appellant and her mother. There was an issue about the dates because S dated it to the summer season of 1972 or 1973 and the appellant stated that he did not move into the guest house until the autumn of 1973, at which time he was not involved romantically with Marianne. J had also given some evidential support to the complainant regarding the date of the appellant's involvement with her mother.[8]Count 2, on which the appellant was convicted, was a specimen count. S said that the appellant had taken her to the bathroom of the Elliott Hotel, where he was working, for a bath because the guest house only had showers. In her statement she said that that happened on three or four occasions, whereas in evidence she said that it was on a weekly basis until she was 11 years old. She alleged that the appellant would stand her in the bath, soap her from top to bottom and then place his soapy finger inside her vagina saying that she should be clean both inside and out. The complainant thought she was about five or six years old when this occurred but was unsure. She had not been in Newquay very long. In interview the appellant told police that there was only one occasion when Marianne had asked him to take S for a bath. He had rubbed her down with soap, she had washed herself and he had dried her with a towel, including her "private area". He said in interview that that had occurred when she was five or six, but he said in evidence that it had occurred in September 1974 when S would have been about 10 years old.[9]Count 3, on which the appellant was acquitted, was a specimen count relating to further digital penetration in the bedroom until S started her periods at the age of 11.[10]Count 4, which was the count of buggery on which the appellant was convicted, was alleged to have taken place in the winter of 1978/1979 when M had a cough. At this point he was staying more or less permanently in Newquay. The appellant offered to look after him and keep him warm and placed him in the double bed that he (the appellant) and Marianne normally used. After about five to 10 minutes the appellant also got into bed and began talking about sex and masturbation. The appellant told him the fact that he (the appellant) was circumcised (which he was) had no effect on his ability to masturbate or his enjoyment from it. He placed M's hand on his own penis and rubbed it up and down. He then did the same to M's penis. Next he pulled M's pants down, rubbed spit on his anus and penetrated him with his penis a little from behind which hurt him. M said something and the appellant stopped. The appellant told M that if he told Marianne he would be sent back to his father and nobody would believe him.[11]Counts 5 to 7 were counts of indecent assault on M in respect of which the appellant was also convicted. Count 5 dated to the same winter. The appellant entered M's room and played with M's penis and testicles before masturbating himself to a climax. Count 6 had taken place in Fistral Court Pentire, to which the family moved following the sale of the guest house in late 1979. M had been watching television in his room when the appellant entered, told him to remove his trousers and then fondled his backside and put a finger into his anus. Count 7 took place in Pentire Crescent to which the family moved in the spring of 1980. The appellant had shaken M awake, fondled his penis and testicles and then pushed his own erect penis against M's mouth. M said "No" quite loudly and the appellant swore and left. M thereafter fixed a bolt to his door to keep the appellant out.[12]The defence case was shortly as follows. The appellant was 65 years old at the time of the trial and of good character. He had moved into the guest house in late 1973 or early 1974. At that time he and Marianne were just friends. They married in 1976. At that time S was the only child living at the address. At the end of 1976 or 1977 Marianne suggested that M live with them. The appellant did not object but said he would play no part in looking after M. He lived apart from the household from 1981 because there was no room for him in the new accommodation. He described the marriage as one of convenience. Following his move, S continued to visit him and he produced photographs of her said to have been taken at his flat to show there was no animosity. He denied the allegations brought by S. He had never shared a room with her. He had never touched her sexually. He had only washed her on one occasion in the summer of 1974. He washed her back, wrapped her in a towel and lifted her out of the bath. He considered her to be arrogant and they were never close. He knew no reason why she should bring the allegations. In addition he produced a bundle of photographs to show that the complainants did not appear to be part of a dysfunctional family living in fear. He described M as equally distant. The appellant did not even know where he slept. M seemed to be sexually aware from an early age. On one occasion he had grabbed a Mr Luxon, who had since died, by the crotch and said "tassel soup" which was an expression used by the family to denote the penis. The appellant could not recall any occasion when M had a cough. He could think of no reason why M should bring the allegations.[13]The defence called a number of witnesses, including J, who gave evidence that the appellant had got on well with her brother's son who had been the same age as M. Character evidence was also read, as was a preliminary medical report that an examination of M at this stage would be unlikely to produce any relevant evidence.[14]The grounds of appeal against conviction are these: 1. The judge erred in refusing to stay the proceedings as an abuse of process. 2. The judge erred in rejecting a submission of no case to answer in respect of counts 1 to 3. 3. The judge misdirected the jury in relation to count 2. 4. The case falls into the category of residual cases where it is in the interests of justice to set the conviction aside - see R v B [2003] EWCA Crim. 319.[15]In refusing leave to appeal against conviction, the single

judge observed to the appellant:

"I have given careful attention to all the points well made by your counsel but I cannot regard your conviction as arguably unsafe. The trial judge was right as to his rulings; his summing-up was full and fair; and the jury's verdicts reflected full appreciation of the issues, hence the acquittals on counts 1 and 3."
However, as already indicated, the full court subsequently granted leave to appeal. We understand that the full court simply said that grounds 1 and 4 were more arguable than grounds 2 and 3 but that they would permit all the grounds to be argued before the full court, which would have the assistance of counsel for the respondent.[16]Ground 1. Mr Crozier submits that the Recorder should have stayed the proceedings against the appellant either at the outset or during the trial. The Recorder refused to do so on two occasions when applications were made to him by Mr Crozier to that effect. The Recorder directed himself by reference to the test in Attorney General's Reference No 1 of 1990 [1992] QB 60, where Lord Lane CJ, giving the judgment of the court, said that 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 finding that the defendant had discharged on the balance of probabilities the burden of proof that lay on him before any power of the sort involved could be used. Mr Crozier submits that so formulated the test infringes appellant's right to a fair trial under Article 6 of the European Convention of Human Rights (the Convention). He submits that once the issue has been raised it must be for the Crown to satisfy the court that a fair trial is possible.[17]We were referred in this connection, not only to Attorney General's Reference No 1 of 1990, which has long been regarded as the leading case in this area, but in particular to the decision of this court comprising Lord Woolf, CJ, Jackson and Elias JJ, in R v B. Mr Crozier relies on a number of aspects of that case. The case does not, however, support the submission that the test should now be treated as different from that expounded by Lord Lane. The court in B observed that the appellant did not challenge the test. It referred to two other decisions, R v Dutton [1994] Crim.L.R 910 and R v Jenkins [1999] Crim.L.R 411. The court nevertheless gave consideration to the appropriate test. Lord Woolf said this at paragraphs 18 and 19:
"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 the 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 assess 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."
The court certainly had in mind the right of every defendant to a fair trial, both at common law and under Article 6 of the Convention, which is of course now part of our law.[18]In considering whether a fair trial is still possible, notwithstanding the delay, the judge must consider all the circumstances of the case and must have regard to the directions which he or she will give in the summing-up. He must also bear in mind that, as Lord Woolf put it in paragraph 18 of judgment in B, the question of who is to be believed is very much an issue for the jury and not for the judge. In that case the court held that the judge could not be criticised either for not staying the proceedings or for the way he directed the jury, but quashed the conviction in the exercise of what Lord Woolf describes as "a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand" even where the trial process itself cannot be faulted. He said this in paragraph 27:
"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 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."
[19]This court has always recognised that it has the power and indeed the duty to quash a conviction if it has, as it used to be put, a lurking doubt as to the safety of the conviction. Mr Crozier submits that this case is the same as B where the court ultimately expressed its reasons thus:
"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."[20]In so submitting, Mr Crozier correctly recognises that no period of delay of itself gives rise to a presumption that a fair trial is not possible and quite properly refers to R v Hooper [2003] EWCA Crim. 2427, where Rose LJ, giving the judgment of a differently constituted division of this court, comprising himself, McCombe and Cox JJ, said at paragraph 70 that:
"... the length of delay is but one of the factors to be considered in the exercise of the trial judge's discretion as to whether or not to grant a stay."
Rose LJ added this in paragraphs 73 and 74:
"73. It is also to be noted that, in B, there was but a single complainant. It is also to be noted that the defence in that case was that she was confused and may therefore have been mistaken in her recollection. As is apparent from what we have already said, there are 15 complainants in the present case, and the defence is not confusion but lies. 74. Furthermore the Lord Chief Justice, in paragraph 26 of the judgment said: '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.' There is, in our judgment, nothing in B to sustain this appellant's appeal."
[21]The thrust of that reasoning is, as we see it, that each case depends upon its own facts. We should further observe that in paragraph 76, Rose LJ said this:
"76. The test in relation to delay, as Mr Dunkels rightly points out, is that enunciated by Lord Lane CJ in Attorney-General's Reference No 1 of 1990 95 Cr App R 296 at 303 Lord Lane said: 'In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay. In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.' That approach is still the law, as was made plain by Lord Woolf CJ in the judgment which he gave in Attorney-General's Reference No 2 of 2001 [2001] EWCA Crim 1568, at paragraphs 16 and following."
[22]It appears to us that ultimately the question for the judge on any application for a stay in a case of this kind is essentially whether in all the circumstances of the case a fair trial is possible notwithstanding the delay.[23]We think that there is force in Mr Crozier's point which was not taken in either B or Hooper, that once the issue has been raised it must be for the Crown to satisfy the court that a fair trial is still possible. Nevertheless it must be for the defendant to raise the issue and to identify those respects in which he says that a fair trial is not possible. We are not persuaded that this approach is in substance different from that adopted in Attorney General's Reference No 1 of 1990. The Recorder himself had this point in mind. He held, in our view correctly, that in this case it made no difference to his decision whether he approached the case on the basis of a legal burden of proof on the balance of probabilities lying on the defendant, or simply as an evidential burden on the defendant.[24]Before considering the question whether this case falls within the same category of case as B, we should consider the trial process. In refusing to stay the proceedings both at the outset and after the complainants had given evidence, the Recorder took account of the directions he would give to the jury. It is important to note that Mr Crozier correctly acknowledges that subject to one point, which forms the basis of ground 3, the summing-up was a model of fairness and clarity. He also recognises that the other rulings made in the course of the trial were unexceptionable.[25]In making his first ruling the Recorder identified the points of prejudice relied upon on behalf of the appellant. They included these. The alleged offences were very old, taking place between September 1971 and December 1980. The appellant's wife at the time, who was of course the mother of one complainant and the grandmother of the other, had died and was therefore not available to give evidence. In relation to most counts it was very difficult to know precisely when they occurred and, even in relation to the count of buggery, where the date was, as the Recorder put it, reasonably specific, it could not be checked to this extent: that the appellant was working away from home on a number of occasions. All enquiries through hotels where he had worked and through the Inland Revenue had drawn a blank. It was now impossible to obtain medical evidence which might have corroborated the allegations or otherwise. When S first spoke to the police in 1999 no notes were taken at her request. On the other hand, there was some photographic evidence upon which the appellant was able to rely. There was character evidence and the principal protagonists, the two complainants and the appellant, were available to give evidence.[26]Having correctly directed himself in principle, the Recorder said this at page 3:
"The matter is clear enough at this stage for me to decide what I should do on paper. My conclusion is that I should not stop this trial. This is not a case where there is any particular matter where evidence might have been available at some stage which would have clinched the matter one way or the other. It is not now available. This is a case where there are difficulties raised by the length of time since the alleged incidents and which will affect both parties. Those sorts of problems tend to arise inevitably in cases of this sort involving historic allegations of sexual abuse. I can see nothing on paper in this case which takes this beyond the normal allegation and into one where at this stage I should stop the trial on the grounds of abuse of process. The quality of the evidence, which is a different matter, can be judged during the course of the trial. And in considering any submissions, if they become appropriate at the end of the prosecution case, I will have to bear in mind the difficulties that arise. But that is something for a later stage and not for mow. At this stage it seems to me that there is no basis for stopping the trial."
He added that he had been specifically referred both to the case of B and indeed to the case of Hooper, in which we note that Mr Mott QC appeared on behalf of the Crown.[27]As indicated earlier, the Recorder revisited the matter on a later application on behalf of the appellant. He again asked himself whether the appellant could have a fair trial. He said at page 2B:
"In particular, because in a large number of respects, and especially as to the allegations by M, there is such a lack of material that no proper cross-examination could be mounted and no proper defence put forward, save for a bare denial. Of course these cases of historic abuse are of great concern, and it is right that I should look at the overall picture, and not just assessing the overall picture, not just assessing the quality of the witnesses. But in the end I must consider whether these are features which can properly and safely be left to a jury so that they can take them into account, assess them and the strength of them with the aid of a proper direction as to the effect of delay, and whether they can at the end of that come to a safe conclusion; in particular whether it would be safe in any circumstances for them to convict on these counts or any of them. It is, in the end, a question of general assessment. My conclusion is that this is a case where the details are sufficient -- albeit there be a very long lapse of time, albeit the dates are very broad -- the details of the allegations by M, the detail of the first incident and the general nature of the incidents alleged by S, are such that it is possible for the jury to consider them and for the defendant to deal with them, as long as the jury have well in mind and are firmly directed upon the difficulties caused by delay. I am firmly of the view that this is not a proper case for judicial intervention, and in a country dependent upon jury trial, this is a matter that can and should properly go to the jury to decide."
The Recorder was right to regard this as a question of general assessment. It was essentially a matter for his assessment and not for the assessment of this court. This court will only interfere if he erred in principle or made a decision which was plainly wrong, or if it is one of that exceptional class of case identifed in B. As ever, the Recorder's decision involved balancing the considerations on either side. He again took account of the fact that Marianne had died and that she could not therefore give evidence either for the prosecution or the defence. He also took account of the fact that it was difficult for the appellant to check relevant dates and that there was no medical evidence.[28]In our judgment the most compelling point advanced by Mr Crozier is based on the fact that Marianne died in 1999. Mr Crozier submits that her absence was a serious blow or potential blow to the defence case. The Recorder said in his first ruling:
"This is not a case where there is any particular matter where evidence might have been available at some stage which would have clinched the matter one way or the other."
Mr Crozier submits that the Recorder was wrong so to hold. He relies in particular upon Marianne's absence. He submits that the importance of her evidence can be seen from the evidence of J, who was S's sister and M's mother. He makes these submissions. M linked a recurrence of bed wetting and urinating behind furniture to his abuse by the appellant. J said that the problem had started when he was living with her after coming out of care and before M had moved down to Newquay, which equated to at least two years prior to the alleged start of the abuse, and that it had improved progressively up to the time M reached 13. M said that after the abuse had started he had become wary and withdrawn in the appellant's presence. J had noticed none of this and indeed had bought the appellant presents as a thank you for looking after him. The allegation of buggery was said to have occurred after the appellant had either volunteered or been asked to share a bed with M because he was or appeared to be ill. He said that he had been taken back to the appellant's room, which was away from other occupied bedrooms. J said in evidence that she recalled such an incident but put it much earlier in time, well before any of the alleged abuse of M had commenced. She also said that M had remained with the appellant in the room he was sleeping in and that he had not gone back to the appellant's bedroom. M and J both said that they only recalled one incident of this bed sharing having occurred. While J's account did not tally with the appellant's denial that he had ever shared a bed with M, it undermined M's account in that it suggested it may have been an entirely innocent event upon which his memory was based.[29]J's evidence was in many respects helpful to the appellant and was of course before the jury. However, Mr Crozier submits that the problem with J's evidence alone was that she was only in Newquay from time to time, whereas Marianne was there throughout. Mr Crozier submits that it is more likely than not that Marianne's evidence would have assisted the appellant.[30]In this regard, in the course of his very helpful oral submissions, Mr Crozier placed reliance upon what the appellant had said in interview. Mr Crozier's original recollection was that before he had appreciated that Marianne had died, the appellant had said that Marianne would bear out what he said. In fact, a perusal of the records of the interview shows, as Mr Crozier entirely properly recognised, that in his first interview, when he was being asked about the one occasion at the Elliott Hotel which he recalled, while denying that anything untoward occurred, he asked whether Marianne was aware of the allegations and was informed for the first time that she had died. At his second interview, when it was suggested that the complainant had mentioned what happened to Marianne, he simply said:
"Marianne would have cut my head off."
However that may be, Mr Crozier submits that the Recorder belittled the potential evidence and thus erred in principle. However, we do not think that it is a fair reading of his ruling. It appears to us that on a fair reading of his ruling the Recorder was not saying that Marianne's evidence might not have been of assistance to the appellant, but only that the evidence did not show that her evidence would have "clinched" the matter in his favour. Mr Osborne submits that it is a matter of speculation whether Marianne would have been able to assist the prosecution or defence. While we accept Mr Crozier's submission that her evidence may well have been of assistance to the appellant, we cannot say that it is more probable than not, and in any event we think it most unlikely that her evidence would have been decisive. It would undoubtedly have been relevant, as indeed J's evidence was, but we see no reason to conclude that the Recorder did not have in mind the likelihood of her giving relevant evidence which might have been of assistance to the appellant.[31]As to the absence of medical evidence, again it is pure speculation whose case such evidence would have assisted. We recognise that this again is a relevant factor, but it is commonplace that there is no available medical evidence, even where the period of delay is a fraction of the period of delay in this case. These were all matters to weigh in the balance. By the time the Recorder came to consider the second application, he had heard the evidence of both complainants, which we have of course not done. In our judgment the Recorder did not err in principle in refusing to stay the proceedings. He formed the view that the issues were essentially matters for the jury to decide. The jury would have the benefit of hearing evidence from the complainants, from the appellant himself and from J. In addition, as already indicated, some character evidence was available and there was photographic evidence.[32]Mr Crozier very fairly accepts that the photographic evidence was of particular value to the defence in challenging the evidence of S. He submits, however, that there was no similar evidence to assist the defence case in relation to M's allegation. Moreover, as indicated earlier, when he made his decision the Recorder was aware that he would be able to give appropriate directions to the jury. As the Attorney General's Reference No 1 of 1990 shows, that is an important consideration. The significance of it can be seen from the directions which the Recorder in fact gave in this case in the course of a conspicuously fair summing-up.[33]The direction included the following. One. The first relates to the evidence of J, relied upon by the defence. The Recorder said this between pages 8A and D:
"Michael spoke of no complaint in words, but did give evidence, you will remember, that he began wetting himself again after the abuse started. There is some independent evidence about him wetting himself, but not independent support of what he says, that it was linked in time to the abuse he now complains of. Indeed J, his mother, in effect contradicted him, saying he was at his worst at about the age of eight, and that it had got much better by the time he was 11, when he says this abuse started. The defence indeed rely on that as undermining M's evidence, and you must judge this as you judge all the evidence. But there is certainly no independent support for the prosecution from this assertion that comes from him alone. So treat both matters simply as part of their stories, not as an independent assistance."
Somewhat later, the Recorder pointed to differences between the evidence of the appellant and J as to the timing of events which was relevant to counts 1. The Recorder observed that if the appellant was right about the timing, including when the appellant's romantic attachment to Marianne began, count 1 must fail. It will be recalled that count 1 did fail. Two. The Recorder gave a standard good character direction at page 8D to 9C. Three. As to delay, the Recorder said this between page 9C and 10F, in a passage in which we have corrected what appear to us to be obvious errors of transcription:
"There is another matter in relation to the evidence which has been properly stressed before you as important in considering the defence case, and that is delay. You are now concerned with events which are said to have taken place a very long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant, and that possibility should be in your mind when you decide whether the prosecution has made you sure of the defendant's guilt. It is not a case of allocating fault to one side or the other; indeed the reasons for the delay have not been investigated by the defence, and no criticism has been made by them of S or M on that account. But the very fact of delay, whatever the reason, means that you need to make allowance for the fact that with the passage of time memories will fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred very many years ago. Sometimes the passage of time may even play tricks on memories. You should take all of that into account. Also make allowance for the fact that from the defendant's point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it. For example, has the passage of time here deprived him of the opportunity to obtain useful evidence from others in support of his denials? You may like to imagine what it would be like to have to answer questions about events in your life which are said to have taken place up to 30 years ago in order to appreciate the problems which may be caused by delay. So even though the delay in this case has not been criticised, and may even be understandable, if you decide that because of the delay the defendant has been placed at a real disadvantage in putting forward his case, you need to take that into account in his favour when deciding if the prosecution has made you sure of his guilt. Specifically, let me remind you at this stage and in this context. It has been pointed out that the most important additional witness who was living throughout the period concerned was Marianne, and she died in early 1999. In addition, other potential witnesses, neighbours and friends who could have spoken of the defendant's relationship with the children and of this drinking habits -- both features which have figured in this case to some extent -- have disappeared or died. It is now impossible precisely to tie down some of the dates, particularly relating to M's early visits to Cornwall and his presence in the household. It is far too late, as you have heard, to get any useful medical evidence to show whether or not Michael was subjected to buggery. As a result, it is said the defendant cannot now mount the sort of positive defence if the trial had taken place say 20 years ago. You will have to bear that very much in mind throughout."
In that passage the Recorder specifically drew the jury's attention to the particular points of possible difficulty for the appellant and directed them that they must take each into consideration in deciding whether they were sure of the appellant's guilt. In our judgment he was entitled to leave those questions to the jury to decide. Four. The judge drew attention to the inconsistencies in S's evidence as to what happened at the Elliott Hotel. The appellant was able to say that he only once took her to the hotel and gave her a bath and that, subject to the point made in ground 3, to which we will return in a moment, he was able to say that that occurred in 1974. It appears to us to be very likely indeed that the jury convicted the appellant on count 2 on the basis that there was only one incident of digital penetration in the summer of 1974. The Recorder was in our judgment correct to sentence the appellant on count 2 on that narrow basis. We return to count 2 in a moment in the context of ground 2. Five. In relation in particular the count 3, which related to alleged behaviour in the bedroom, the appellant was able to point to a number of photographs, albeit taken in 1979 and later, which did not appear to show, as the Recorder put it "a dysfunctional family with children living in fear." It will be recalled that the appellant was acquitted on count 3. Six. As to M, the Recorder summed up the evidence in detail. M's evidence did not suffer from the same inconsistencies as that of S. He was able to give clear evidence of one incident of buggery in the winter of 1978/9. Moreover, M recalled the appellant saying to him that he was circumcised. It is common ground that M was in fact circumcised and the Recorder correctly pointed out to the jury that if the appellant was right about the nature of his relationship with M and his family, it was not such that M would have had cause to see to the appellant's penis. That was no doubt a further factor which led the Recorder to conclude that the allegations relating to the appellant could safely be left to the jury.[34]We have reached the conclusion that the Recorder was entitled to hold that the appellant could have a fair trial notwithstanding the delay. We see no basis upon which we could properly interfere with the exercise of his discretion not to stay the proceedings either at the outset or after he had heard S and M give evidence. In these circumstances we have reached the clear conclusion that ground 1 fails.[35]Ground 2. Mr Crozier takes a specific point in relation to ground 2, which was expanded in the light of the evidence of S. Count 2 initially related to the period between 20th September 1972 and 19th September 1973. S had originally said in her police statement that the abuse had occurred on three or four occasions in total and count 2 of the indictment was formulated on that basis. However, in the course of her evidence, although S did not change her evidence as to the substance of what she said the appellant did, she said that he did it weekly over a period of some three years. The Recorder permitted count 2 to be amended to reflect that period of three years, so that it extended from 20th September 1972 to 19th September 1975 -- that is between S's eighth and eleventh birthdays. Mr Crozier submitted to the Recorder that he should rule that the appellant had no case to answer on counts 1 to 3, especially if count 2 was expanded in that way. The Recorder rejected the submission on the footing that the evidence was sufficient to leave to the jury. Mr Crozier submits that the Recorder was wrong so to hold, on the footing both that S had proved to be a most unreliable witness and that it was difficult if not impossible for the appellant to defend himself because of the passage of time. However, given our decision on grounds 1 and 2, we have reached the conclusion that the judge was entitled to leave counts 1 to 3 to the jury. In any event, no doubt because of the way that S changed her evidence as to the frequency of the alleged offences, and in the light of Mr Crozier's cross-examination based on material such as the photographs, the appellant was acquitted of counts 1 and 3. As to count 2, we have no doubt that the appellant was convicted on the basis that he inserted his finger in S's vagina on the one occasion on which he admitted taking her to the Elliott Hotel to have a bath. There was undoubtedly sufficient evidence to leave the case to the jury on that basis.[36]Ground 3. The third ground is that the appellant should have directed the jury more specifically with regard to the date of the occasion at the Elliott Hotel, to which we have just referred. The Recorder summed it up as follows at page 14A to 15A:
"The prosecution draw attention to that saying that is odd, because certainly if it was September 1974, which is what the defendant says, this is a girl who was then almost ten years of age. The defendant says there was nothing strange about this, although on his account he was then still a lodger. There was no romantic relationship between him and Marianne, and he is taking a girl whom he described as very grown up, whom he had little to do with and whom he had no particular affection for, and then instead of just leaving her to get on with it and perhaps standing by the door or outside the door, he soaked and dried her more as if she were a five or six year old as he was describing her in that first interview. You have to consider what you make of that. Remember, as the defence pointed out, that it was a matter that he volunteered to the police, wanting to deal with it at a fairly early stage in that first interview. Against that, remember the point is made by the defence that S initially had said in her signed statement in 2002 that this happened only about three times in all; not every week. She now says it happened every week really until she was 11. Of course, if the defendant is right, it could only have happened during the first part of the summer season of 1974 at the Elliot Hotel, because about six weeks before the end of that summer season, he moved from there to work at the Sandridge Hotel instead, and that facility would have stopped, so there would only have been a few weeks, comparatively few weeks, when it could have taken place. At any rate, the defence point to that difference between what S said in her statement and what she said in evidence as some indication that she is not telling the truth, or is at least unreliable as to facts. You must make your judgment on that. Remember that as to count 2 you must be sure that there was at least one such incident in the bathroom at the Elliott Hotel, some time in the period between September 1972 to September 1975, before you can convict. You do not need to give a verdict one way or another as to how often it took place if you are sure that it took place at least once."
[37]It is submitted that before the jury could accept the point made by the Crown, which Mr Crozier conceded in argument to be based on telling, even devastating, cross-examination to the effect that the appellant's own evidence was surprising in the case of a girl of 10 years of age, the Recorder should have directed the jury that they must be sure that the incident did in fact occur in 1974 when it is common ground that S was 10, and not when she was much younger, say five to six, as the appellant first said in interview. Although the point was forcefully put by Mr Crozier, it was not one that struck him when he was listening to the summing-up or indeed when he first drafted the grounds. We do not criticise him in any way for that. Although the appellant had initially said in interview that he thought the incident occurred when S was five or six, by the time he gave evidence he was able to say that it was in 1974. Although timing is always difficult in an old case, there was a good deal of support for that evidence. As the judge observed on the previous page of his summing-up, J said that she first met the appellant when he and her mother Marianne visited her in Crawley which she could put in the autumn of 1972. The appellant said no, he moved into the guest house only in the autumn of 1973 and the visit to Crawley was in the autumn of 1973. As we indicated earlier, the Recorder observed that if the appellant was right about that, count 1 must fail, whereas if J and S were right about that the position would be different. Count 1 did fail.[38]In our judgment the judge sufficiently made it clear to the jury that the point made by the Crown depended on their concluding that the incident occurred in 1974. The point only arose, he said:
"if it was in September 1974."
In our judgment the Recorder put that point fairly to the jury.[39]The Recorder also highlighted the differences between S's statement and her evidence and observed that if the appellant's evidence was correct the abuse at the Elliott Hotel could only have occurred in the first part of the summer of 1974 because about six months before the end of the summer season he moved to another hotel. That is another example of the fair and balanced way the Recorder summed the matter up to the jury. In these circumstances, ground 3 fails.[40]Ground 4. Here Mr Crozier repeats the substance of the points he made under grounds 1 and 2 and submits that this is a case just like B, where as Lord Woolf put it the defendant could do more than say to the jury "I have not done it" which is no defence at all. However, as Hooper makes clear, each case depends on its own circumstances. Here there was a sharp conflict of evidence between the appellant and each of the complainants. The jury's acquittals on counts 1 and 3 shows the care they took. They convicted on count 2 on the narrow basis that we have described, accepting the appellant's evidence that there was one occasion at the Elliott Hotel, but preferring S's evidence that he went further on that occasion than he was prepared to admit. As to M, M's evidence was consistent throughout. He gave a clear account of the buggery alleged in count 4. The jury may have been struck by the conversation about circumcision in circumstances where the appellant was in fact circumcised, whereas M could not have known that if the appellant's evidence was true.[41]These were essentially matters for the jury. Given our conclusion that there was no failing in the trial process, we have reached the conclusion that there is no proper basis on the facts of this case upon which we could hold that these convictions are unsafe. It follows that the appeal against conviction fails.[42]Sentence. As we have indicated, the appellant was sentenced to a total of eight years' imprisonment. Mr Crozier advances three grounds of appeal: first, that the totality of the sentence is manifestly excessive having regard to the level of offending and the authorities; second, that the Recorder failed to give the appellant sufficient credit for his age, hitherto good character and his low risk of reoffending -- see Millberry [2003] 2 Cr.App.R (S); and third, that the Recorder should not have sentenced the appellant to consecutive sentences on count 2, two years, and count 4, six years; rather he should have scaled down the overall length on each count in accordance with the principles of totality -- see Attorney General's reference No 19 of 1992 (1992) 14 Cr.App.R (S) 330.[43]In passing sentence, the Recorder observed that the appellant had committed offences against young members of his household to whom he was in a position of trust. S was the daughter of the person with whom he was lodging and M was his step-grandson. He threatened the latter with being sent back to his father, who was in a volatile relationship with his mother, and told him he would not be believed. M was vulnerable and the appellant's behaviour compounded his problems. The appellant's victims had had to live with their memories for 25 years. The Recorder took into account the appellant's good character but said that that could only make a limited difference to sentence, as it was his standing in the community that enabled him to commit the offences and keep them quiet for so long. The delay in bringing the case could not assist the appellant as it arose from his threat to his grandson. A guilty plea would have reduced his sentence by up to a third. The Recorder took into account the totality of the sentence, the appellant's good character, his age and medical condition and the age of the offences, but the offences were a gross breach of trust. He said that had the offences been more recent and the appellant a much fitter man the total sentence imposed would have been considerably longer.[44]Mr Crozier relies in particular upon the fact that apart from these convictions the appellant is a man of good character and in any event that he has not committed any offences since 1980, nearly a quarter of a century ago. He is now a man of 66 and is not in good health. The pre-sentence report does not suggest that there is a high risk of reoffending. He submits that in the light of the cases, including not only Millberry but in particular Smith (1991) 13 Cr.App.R (S) 461 and Sullivan [1999] 1 Cr.App.R (S) 89, a total sentence of eight years is manifestly excessive.[45]We agree. We do not accept that it was not appropriate to pass consecutive sentences on counts 2 and 4, count 2 on the one hand and the remaining counts on the other, given that the victims were entirely different people. However, we have reached the conclusion that having regard to the age of the appellant, his good character over many years, his health and the nature of the offending, the sentences could and should have been shorter. We have regard to the contents of the pre-sentence report.[46]Given the basis upon which we are sure the jury convicted the appellant on count 2, namely one sole incident, and his acquittals on the other counts relating to S, and bearing in mind the principle of totality, we think that the sentence on count 2 should be reduced to a sentence of one year's imprisonment. As to count 4, we have reached the conclusion that a sentence of five years' imprisonment would have been sufficient. We cannot properly reduce it below that, especially given the fact that the appellant is not entitled to credit for a plea.[47]It follows that the sentence of eight years is quashed and substituted by a total sentence of six years' imprisonment, one year on count 2 and five years consecutive on count 4. The sentences on counts 5 to 7 remain the same and are concurrent. To that extent the appeal against sentence succeeds.

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