Stalford & Anor v R. [2005] EWCA Crim 1988

[2005] EWCA Crim 1988Case No 2004/04348 C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
HIS HONOUR JUDGE THOMPSON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2005
Before
LORD JUSTICE PILLMR JUSTICE OUSELEYMR JUSTICE DAVIS
Between
DAVID STALFORD &AppellantsBETTE STALFORDAppellantTHE QUEENRespondent
Mr M Levett for Appellant David StalfordMr S Dyble for Appellant Bette StalfordMr S Spence for RespondentHearing Hearing date: 24 June 2004
JUDGMENTPill LJ:
[1]On 15 July 2004 in the Crown Court at Ipswich before His Honour Judge Thompson and a jury, David Stalford was convicted on nine counts of indecency with a child (counts 4,5,6,8,10,12,17,19 and 21) and two counts of indecent assault on a female (counts 13,14). Apart from count 13, each of the counts was charged as a specimen count. On counts 4, 5 and 6, he was sentenced to two years imprisonment on each count, the sentences to run concurrently. On count 8 he was sentenced to eighteen months imprisonment, consecutive, and on counts 10 and 12 eighteen months imprisonment on each count concurrent. On count 13 he was sentenced to four years imprisonment consecutive and on count 14 to two years imprisonment concurrent. On count 17 the sentence was eighteen months consecutive and on counts 19 and 21 eighteen months on each count concurrent. The total sentence was therefore one of nine years' imprisonment.[2]At the same trial, Stalford's wife, Bette Stalford, was convicted on six counts of indecency with a child (counts 8,10,12,17,19 and 21). They were all joint charges with David Stalford and alleged ritual sexual abuse. On count 8 she was sentenced to eighteen months imprisonment and on counts 10 and 12 to eighteen months imprisonment on each count concurrent. The sentence on count 17 was eighteen months imprisonment consecutive and on counts 19 and 21 eighteen months imprisonment on each count concurrent. The total sentence was one of three years imprisonment. Both David and Bette Stalford were disqualified from working with children. The sentences were imposed on 9 September 2004.[3]David Stalford was acquitted of indecent assault (counts 1-3) on the judge's direction and the jury were not invited to consider alternative counts which had been included in the indictment.[4]David Stalford ("DS") and Bette Stalford ("BS") appeal against conviction by leave of the single judge. Application for leave is not renewed on those grounds where it has been refused by the single judge. The single judge refused DS leave to appeal on the ground that applications to sever the indictment should have been granted and that there should have been separate trials of the two defendants. Four applications for severance were made in the course of the trial. The evidence[5]The appellants were married in 1966 and had four daughters, K (16/12/66), E (28/08/70), S (13/10/73) and A (17/04/75). On 22 August 2003, S contacted the police and made allegations against her father of sexual abuse. The police contacted her sisters who also made allegations of a sexual nature against him. S, who suffers from paranoid schizophrenia, subsequently withdrew her complaints. The prosecution case was that from 1974 to 1987, K, E and A had been sexually assaulted by their parents. The abuse was primarily by DS and involved touching the vaginal area, being made to touch his penis, forced oral sex and masturbation and simulated intercourse. From 1984, BS was alleged to have participated actively in sexual abuse against the two younger daughters. The abuse took the form of quasi-religious rituals and ceremonies in the family home and garden. The allegations were denied by the appellants who claimed that they were completely untrue.[6]A police search of the appellants' home revealed a number of books concerned with witchcraft, rituals and spells. They were seized. A computer was found to contain an email from BS to E dated 28 August 2003, stating:
"It is possible to love a person yet detest what they have done."
[7]K, aged 37 at the time of the trial, had been married for eight years and had two sons. She had been estranged from her parents since she was about twenty years old. She alleged that her father's indecent conduct towards her began when she was about five years old. The behaviour continued as she became older. When her mother had gone shopping, DS would show her photographs of himself and her mother in bed. He tried to get K to perform oral sex on him and to touch and to masturbate him. There was oral sex, him on her and her on him, on a number of occasions. He would touch her vaginal area. This behaviour occurred regularly. The oral sex took place when BS was out of the house. He would ask her to masturbate him into the sink. When K did not do as DS asked he would not speak to her for a long time.[8]When she was young, K thought her father's behaviour was normal. When she realised it was not, she was too frightened to tell anyone. When she left school and took a job, her father would pick her up in a car, pull up in a wooded area and expect her to perform oral sex on him and masturbate him. The conduct continued and just before she reached seventeen she left home, feeling she had to get away. When cross-examined, she said that her sister A had told her of S's complaints. She had fully expected that S, whose condition was controlled by drugs, would be persuaded to change her statement. She did the housework at the age of eight because her mother stayed in bed until midday. She had occasionally taken fifty pence pieces to get food. She was very frightened of both her parents. She had, on one occasion, told her mother of her father's conduct but had not been believed. Counts 4 and 5 relate to K.[9]K denied that she had embellished and made up allegations after S's disclosure. She knew nothing about her sisters A and E having a pagan information website. When S withdrew her allegations, K told the police that she would not be withdrawing hers. She said that she had never spoken to her husband about the allegations.[10]E was thirty-three years old at the time of trial. She had two sons and a daughter and had been divorced in 2002 after eleven years of marriage. E said that when she was five or six years old and was sitting on her father's knee, he unzipped his trousers, took out his penis and put her hand on him. On another occasion he stroked the top of her bottom. She felt confused and uncomfortable and said nothing about it. (Count 6).[11]When she was about thirteen years old her parents called her into the dining room. When she confirmed that she was a virgin, they told her they had been contacted by people who needed E's help for a coven of witches. They said it would be at night when everyone was asleep. She did not tell anyone.[12]A few days later she was told to take a bath before bed. She was woken by her mother in the middle of the night and told to put on her bathrobe and go downstairs. She had nothing else on. It was dark, with a lot of candles, and her parents were there with bathrobes on. Her father told her to go into the middle of the room and take off the robe. They took off their robes and were naked. She was told by her father to perform oral sex on him and was showed by her mother how to do it. Her father ejaculated into her mouth and she had to swallow it. Her mother was kneeling or standing beside them. She was told that that was it and they were both very pleasant to her and all three had a hot drink.[13]A similar procedure was followed, E said, on a number of occasions "in double figures" in a three to four month period. On most occasions she gave her father oral sex. There was also oral sex between mother and father and she was expected to watch and touch them. On the last occasion she was woken by her father and her mother was not present in the dining room. Her father made her lie on the table with her legs open. He was naked but nothing happened.[14]E told her parents that she could not do it anymore and moved out to live with a friend when she was fifteen or sixteen years old. When she was seventeen, her father took photographs after her mother had said that she did not want a model in the house. Photographs of her in her mother's underwear were taken and, in the absence of her mother, she was photographed naked. Her father also undressed. Photographs were taken of posed sexual acts, as though they were having sex. His penis was erect and they touched each other, and in one photograph he was lying virtually on top of her and touching her thigh. She had done this because her mother had been upset at the thought of someone else in the house.[15]When she was seventeen, her father asked her whether she had told anyone of the rituals and she said that she had not. He said she had to prove it by giving him oral sex, which she did. He ejaculated into her mouth (Count 13).[16]In cross-examination, E agreed that, as a teenager, she had gone around with a motorcycle gang and had experimented with hash. She considers herself to be a pagan and uses a pagan website. She classed herself as a witch and agreed that her own daughter was a member of her group. She had become interested in non-traditional pagan religion following her divorce. She had not complained about the photographic sessions because she could not handle telling her mother.[17]E agreed that S had lied to the police in saying that their father had had sex with E when she was twenty-one. She agreed she was very close to A and they had set up the website together. She had not spoken to K for nine years. She told A that she would be backing up S and standing by her. She believed S even though S had lied about her. She had kept it secret for so many years. It was like a nightmare coming out. Count 6 and the joint charges in counts 8, 10 and 12 relate to E.[18]E knew her mother as a victim and wanted to believe she was a victim. She always felt sad for her mother and was not angry towards her. She had told her husband about the abuse. She said she had not told her husband about her father having intercourse with her 3 sisters.[19]Andrew Cook, E's former husband, gave evidence. He said he thought E's interest in paganism had started after their separation. She had made allegations about her father having sexual intercourse with her three sisters but had said that he had not had penetrative sex with her. She had begun to tell him of her father's conduct within two or three weeks of their meeting. She was upset when they discussed it. At no stage did she mention her mother's involvement or that there had been rituals. She had not found it easy to discuss the abuse and would mention it if she was upset or had nightmares as a way of releasing or calming herself down.[20]A was twenty-nine at the time of trial and had a five year old son from her marriage. She was divorced after ten years of marriage. When she and her sisters were young, their father behaved coldly and had distanced himself from them.[21]Count 14 was a specimen count relating to DS's alleged conduct when A was 5 or 6 years old. When she sat on her father's lap, he would touch her between her legs. It usually took place in the dining room when no one else was present. It did not feel right but she did not know and said nothing to anyone. Her father would push himself against her bottom and put his hand up her skirt. Once, on a sofa, he started touching her between her legs, took out his erect penis and asked her to hold it. He removed her knickers, put her on top of him and placed his penis between her thighs, while moving her up and down. She became frightened and ran off.[22]Her father had a hole in his trouser pocket and would put her hand inside and get her to hold his erect penis. She would get wet hands, which she now knew to be the result of contact with semen.[23]When A was ten or eleven years old, her father woke her up one night and asked her to help him with the car. However, she found him sitting at the dining table with an open bible, a rosary and a crucifix with beads. There was a makeshift bed in the room. He told her that he and her mother were members of a group that did rituals to aid each other. She confirmed she was a virgin. She did not think it was anything bad because her mother was involved. He asked her if she wanted him to show how the rituals worked and she said no. He said he would tell her when he got a call from the man who ran the group. On the following day, she told her mother who said it was a secret and that she must not tell anyone. Her mother assured her that there was nothing to worry about. After a couple of weeks, she was told that there would be a ritual that night and she had to have a bath. She was given a blue robe and told to take off her night clothes. In the living room, both her parents were dressed in robes. All three took their robes off and were naked. Her father said that they had to touch each other and he would show her how. He ran his hands down her mother's face and body. Her mother knelt down and gave him oral sex. They told her she had to do something but she said she was not ready. She could not recall how the events of that night came to an end.[24]Over the next few months, the rituals occurred six or seven times. They had to relax and focus on kennels her parents wanted to buy. On occasions, she was told to lie on a bed placed in the dining room while her father touched her and her mother was beside her. She had just snippets of memory. She remembered lying in bed with her mother kneeling beside her stroking her hair and hands while her father masturbated and ejaculated over her stomach. He touched her between her legs and gave her oral sex. She remembered masturbating her father once.[25]She and her parents once went to a disused railway and stood in a circle in their robes but her father heard something and said they were going home. On another occasion, they were in the garden and it was raining. One day, she told her mother that she did not want to do it anymore and her mother said she would speak to her father. She heard raised voices between them. She did not change her mind.[26]A avoided being around her father. She once saw photographs of her father and E in which E was giving her father oral sex. A left home at about sixteen and moved in with E and her husband although she later returned home for about six months.[27]The witness admitted that as a child she made a complaint against her father and had been interviewed by Social Services. It has been a lie and she had dreamed up the offence which had got her father into trouble, although the matter was not pursued.[28]A had kept the rituals a secret until she told her husband. She had not spoken to E about them and was not in cahoots with her. She denied telling lies or dreaming up or imagining the rituals. There had been humming and chanting but she did not know what it was.[29]A had never told her teachers about the rituals or a doctor who had examined her. She agreed that she had studied paganism and found it fascinating. The abuse stopped before she left home. She avoided her father but was on good terms with her mother.[30]The witness repeated that her mother had been present at the rituals and had been actively involved. Her mother had performed gross sexual acts on her father. She had forgiven her mother although she did not know why, though she admitted she was angry with her mother for standing by him. S was vulnerable and her father had to be stopped.[31]A had received a call from E saying that S had made allegations to the police. She was prepared to back up S. She had not known what E had alleged and had not seen her statement.[32]A former teacher of A's confirmed what A had said about the complaint to Social Services. A had changed her story.[33]When interviewed by the police, both DS and BS denied any sexually inappropriate conduct towards any of their daughters. In her interview, BS said that K had been a problem child. E had wanted to do modelling and had borrowed clothes from her for the photographs which DS took. BS admitted that it had not felt right to her. She later fell out with E. She was completely at a loss as to A because they had been very close and there had not appeared to be any problems. E and A had always been close and they both managed the pagan website.[34]BS admitted at interview that she was a member of "the Discipline", which was a solitary path. She was surprised when her daughters had started the website although she did not know much about it and was not interested. She had once been a member of Lunar Sprite and was a hedge witch. Her husband did not get involved. She did not practice meditation but had a staff and cast a circle.[35]When asked if she could think of a reason for her daughters' allegations, she said that it may have been the big fall out with E. Her daughters had followed anything on the news about satanic abuse and were very interested in it. She would never have performed oral sex on her husband in front of the children and it had never happened. Nothing that had happened could have been misinterpreted as rituals. She agreed that A's allegations against her were similar to those of E. She denied that she and E had ever argued about the photographs. The allegations were all untrue.[36]DS gave evidence consistent with the contents of his interview. He was a Christian and worshipped God. He had never dabbled in the occult, witchcraft or paganism.[37]DS described the layout of the kitchen and denied that the acts alleged could have taken place there. There was no space for the makeshift bed alleged to have been in the dining room. The photographs of E had been taken at her request. They had been developed at Boots without a problem and there were no poses of a sexual nature. He and his wife were shocked and unhappy when they discovered that E had been lap-dancing.[38]There was no truth in the joint charges based on the rituals. His wife was a devoted and loyal spouse.[39]In cross-examination, DS said the he believed all three of his daughters were lying. He agreed that he had had no contact with K for nearly half her life but said that he had had a good relationship with his other daughters. He had no interest in paganism and had looked at the books in the house out of curiosity. He denied that sections in the book reflected his subjecting people to his authority. He agreed that the photographs did show E wearing her mother's underwear and accepted that they were "sexy poses".[40]His alleged conduct had simply not happened. He denied that he had treated his daughters as objects and he certainly did not use them for rituals. He would never have oral sex with another adult, never mind a child. He agreed that he could probably be described as a "stand-offish" father who was cold and unavailable.[41]BS did not give evidence but reliance was placed on her behalf on the answers she had given in interview. The deliberations of the jury[42]This issue concerns only counts 8,10,12,17,19 and 21 but we consider first the submission made on behalf of both appellants that the verdicts on those counts were a nullity because the jury had been discharged before the verdicts were taken. These were the counts alleging, against both appellants, ritual sexual abuse.[43]The evidence had been given over a period of eight days, the prosecuting closing speech being made on the last of those days. The following day was taken up with the speeches of the appellants' counsel. The judge summed up on the next day, 13 July 2004. Counsel then raised a number of points with the judge and he gave further directions. The jury retired at 2.59pm. The jury deliberated for the rest of that day and the following morning. At 2:05pm, on 14 July, they brought in verdicts of guilty upon DS on counts 4,5 and 6. They were then given a majority direction. Before the end of the day, they sent the judge a note stating that they had reached verdicts on counts 13 and 14 but as to the counts "concerning rituals", as they put it, they stated:
"We cannot reach a majority on and do not believe we shall"
. For DS, Mr Levett stated:
"I am keen verdicts are returned in this case because what I do not want to find is that it may be three months, four months time the Crown decide to have a re-trial on the joint charges, with my client effectively having been convicted"
. Having taken verdicts on counts 13 and 14, the judge told the jury that he was going to ask them to come back the next morning "and to again give some consideration to the verdicts on the outstanding matters".[44]At 13:08 pm on 15 July, the following exchanges occurred:
"CLERK TO THE COURT: Will the Foreman please stand ? Mr Foreman will you please answer my first question either yes or no? Members of the Jury have you reached any further verdicts on which at least ten of you have agreed? FOREMAN OF THE JURY: No CLERK TO THE COURT: Thank you JUDGE THOMPSON: Thank you, ladies and gentlemen. You have been out for a long time, I am not quite sure how long it is. Has the clerk got the hours? So it's over ten hours. Yes. You have been retired for over ten hours and I know that you have been doing your best to reach verdicts and I am satisfied that you should not be asked to deliberate any longer. For that reason I am going to discharge you from bringing in any verdicts on the outstanding counts, which are all the joint counts. I should simply say I know you have been doing your best and you deserve thanks from the Court and from the public for all the time and effort and energy that you have put in. MR DYBLE: (Inaudible) the Jury are formally discharged, does your Honour think it prudent to at least ask the Jury whether, if given further time, they might be able to reach verdicts. JUDGE THOMPSON: Well, yes. Mr Foreman, would you please stand again? If you were given more time to deliberate, do you consider, in your opinion, that there is any reasonable prospect of you reaching a verdict either 10:2 or 11:1 or altogether, on any of the outstanding counts? FOREMAN OF THE JURY: (Inaudible) JUDGE THOMPSON: You believe you would be able to. Well I am very grateful to Mr Dyble for saying that. Well, in that case, if you do think that more time will be fruitful, I will certainly not discharge you and I will ask you to deliberate further. So, thank you very much for that, and thank you Mr Dyble. Please can I once more ask you to retire and give some further consideration to your verdicts. As I said, I think the day before yesterday, there is no pressure of time on you. If you need time, you take your time, because it is an important matter and plainly you are using the time very fruitfully. So thank you very much. Can you please retire once more and give some further thought to your verdicts? (THE JURY RETIRED) MR LEVETT: (Inaudible) You discharged the jury and now they are being - JUDGE THOMPSON: Well I am withdrawing the words I uttered because I think Mr Dyble quite properly suggested something to me which was prudent. If you are going to suggest that they are now functus officio and they cannot continue to deliberate, I do not think that is realistic. MR LEVETT: As I say, I only go by the rule book, but if you are saying that they are now reconstituted as a Jury, then I have made my point. JUDGE THOMPSON: Right, you have made the point. It is on the record. Thank you."
[45]At 15:37, the jury returned and returned unanimous guilty verdicts against both appellants on the remaining counts. The clerk of the court had made the following entries in his log:
"13:08 Jury return. No further verdicts. Judge discharges jury. Then asks if they require time. 13:11 Jury retire further to continue deliberations."
The log records, and records accurately, what the judge said but in present circumstances has no effect beyond that.[46]Mr Levett submits that the judge discharged the jury, when they had not reached verdicts on the outstanding counts, and the situation could not be remedied however technical or unmeritorious the point taken was. A discretion to take a verdict after a purported discharge could arise when verdicts had been reached but had not been understood. There was, however, no discretion in present circumstances. Mr Dyble also submits that the judge had no jurisdiction to recover the situation even at the request of a defendant or defence counsel.[47]Reliance is placed in R v Russell [1984] Crim LR 425, where it was held in this court, Dunn LJ presiding, that, once a jury had been told that they were discharged from reaching a verdict, that was an end of that particular trial and any subsequent proceedings were a nullity.[48]In R v Follen [1994] Crim LR 225, (of which a transcript also was provided to us) the court, Watkins LJ presiding, having referred to Russell, stated:
"We do not doubt that there is no fixed rule of principle or of law to the effect that it inevitably follows that once a judge has made an order discharging a jury from returning a verdict there cannot arise some circumstance which permits a judge to set aside that order and thereby to allow the jury further consideration of the responses they have made to questions asked of them as to their verdicts either by the clerk of the court or by the judge himself or both. But in our view it is only in very rare circumstances that that might be done."
In that case, the judge, after reconsidering a decision to discharge the jury, sent them to their retiring room at a time when they had not left the jury box. There had, however, been a disturbance in the gallery and some disturbance in the jury box itself. The jury had twice stated that they had not come to a verdict and no-one had remonstrated with the foreman who had given appropriate replies to the Clerk of the Court. In those circumstances it was held that the jury should not have been invited to resume deliberations.[49]In R v Steadman, transcript 13 January 1994, Simon Brown LJ presiding, there was a misunderstanding as to whether a jury had reached a verdict. In fact they had, and the court upheld the decision of the judge to take a verdict even though they had been discharged and had left the courtroom.[50]Follen was cited in R v Aylott [1996] 2 C.A.R. 169 where verdicts had been reached, but due to the judge misunderstanding a note from the jury, the jury were discharged. Giving the judgment of the court, and having referred to cases including Russell, Follen and Steadman, I stated:
"In the judgment of this Court it is open to the Court to uphold the conduct of a judge who has discharged a jury and later taken a verdict from them. There is no fixed rule of principle or of law to the effect that once a jury have been discharged from returning a verdict there cannot arise some circumstance which permits a judge to set aside the order of discharge. The discharge in the present case was based on a fundamental mistake. When discharged by the judge, the jury had reached verdicts. The judge was entitled, in the circumstances, to proceed to consider the question and to take the verdicts, in effect setting aside the discharge which he himself had ordered. As in Steadman, it was plain in this case that the jury had remained together and had not spoken to anyone outside their number. We have considered whether there is a principle underlying the cases to which we have been referred. The principle which emerges, in our view, is the fundamental concern of the courts to ensure that proceedings are fair and do justice in the particular case. Fairness is important to defendants and also to the public. We bear in mind the gravity of the charge which the appellant faced and upon which he was found guilty. It is plain that the jury had reached verdicts before they were discharged. Through a misunderstanding, which was not of their own making, they were given no opportunity to deliver the verdicts they had reached. The misunderstanding was very quickly realised."
[51]In R v ZA, transcript 8 March 1999,

Judge LJ, giving the judgment of the court, stated:

"Once the judge has discharged the jury, normally speaking, it is functus officio. The principle is not absolute or immutable, and there are some very limited circumstances where the judge is permitted to set aside the order and seek further assistance from the jury, either to provide their verdict or to explain some aspects of it."

Judge LJ added:

"These occasions are very limited indeed."
Examples were given.

Judge LJ continued:

"But it is clearly established by Russell and again in Follen that once discharged the jury cannot return a verdict which is the result of further debate. For that purpose the verdict is a nullity and so far as Follen is concerned the verdict was set aside because there had been discussion in court in the presence of the jury about a possible retrial. In our judgment, looking at the facts of this case overall, the jury was discharged; having been discharged they listened to discussion in open court about the possible consequences of the verdicts which they had reached; they then returned to their room; they continued discussing the outstanding counts without any of the normal arrangements which apply to a jury in retirement, and, having discussed these matters at some length, they then returned to court and returned verdicts which they had been discharged from giving. We do not think that it was open to the judge to set aside the order discharging the jury from further considering those counts. This was not a case in which the jury was simply recording verdicts which they had in truth already reached."
The convictions were quashed and the re-trial ordered.[52]In Follen, while the verdicts were quashed, the statement of principle allowed of the possibility that there may be circumstances which permit the judge to set aside a discharge. That was also the view of the court in Aylott. In our judgment, that principle is capable of covering circumstances such as the present. While Judge LJ at one stage of his reasoning did seem to state a general principle in ZA to the effect that once discharged the Jury can never return a verdict which is the subject of further debate, elsewhere his statements did admit the potentiality of exceptions: indeed, the court before reaching its decision went on to consider in some detail the circumstances of the particular case, which would not have been necessary if the Court's view had been that anything following a discharge is inevitably a nullity.[53]The judge did in the present case use the words "I am going to discharge you" but almost immediately, with the jury still in the jury box, and at the suggestion of counsel for BS, he decided to permit further deliberations. We are satisfied that counsel for BS was acting in the interest of his client for whom the prospect of a retrial would follow a discharge. Moreover, late on the previous afternoon, by which time guilty verdicts had been brought in against his client on three counts, and the question of whether the Jury might need to be discharged in respect of the other counts was being debated, counsel for DS stated:
"I am keen the verdicts are returned in this case because what I do not want to find is that it may be three months, four months time the Crown decide to have a retrial on the joint charges, with my client effectively having been convicted. "
[54]Having heard submissions from them and discussed the matter with them at earlier stages, the judge in the event was in our view wrong not to invite submissions from counsel as to discharge before saying what he did. Not having been given the opportunity before the word discharge was uttered, counsel for RS was right to intervene immediately, as he did, and in the hearing of the still assembled jury. The judge's change of mind was prompt and prompt effect was given to it. He stated: " I will certainly not discharge you and I will ask you to deliberate further".[55]In these circumstances the previous words used by the judge should not be treated as an effective discharge of the jury. The course of events did not constitute a discharge and the position could be remedied in the way it was. While the words cannot be classified as ‘a slip of the tongue', they were capable of being remedied in the way they were. We have regard to the public interests involved, and those of the parties, as then perceived. Moreover, even if, contrary to our view, the use of the words should be treated as an effective discharge, the judge in our view had a discretion, to be exercised only in rare circumstances and provided the integrity of the jury and its deliberations have in no way been compromised, to set aside the discharge and the judge properly exercised it in the circumstances here.[56]In our judgment, the verdicts of the jury on the outstanding counts, which followed from the further deliberations permitted, are sustainable, subject to consideration of other points raised on behalf of the appellants. Conditions in the courtroom and the summing-up[57]Complaint is made about conditions in court and the manner in which the summing-up was delivered. It was delivered over a period of three hours without a break. We are told that it was hot in court and it is submitted that the judge should not have delivered his summing-up at the speed he did and should have allowed the jury a break in the course of it. It is also submitted that the summing-up was deficient in that it did not include an overview of the issues. Further analysis was required.[58]While conditions in court were undoubtedly not ideal, the safety of the verdicts is not thereby affected. We shall need to say more about the summing-up when considering the submissions made on specific points. However, it included a detailed summary of the evidence given and there is every indication that the jury understood their task and performed it logically, patiently and conscientiously. Further analysis was unnecessary. Nor do we see merit in the suggestion that pressure was placed on the jury when they retired at 13:11 on 15 July. It was still the middle of the day and the jury were told in terms that there was no pressure of time on them. General directions[59]In the first part of the summing-up, the jury were given appropriate directions. They were told that "you will wish to take account of the arguments in the speeches which counsel made to you yesterday and the day before but you are not bound to accept them". They were told that they must consider each count separately and the case against and for each defendant separately on each count. They were told that "the evidence is different and, therefore, your verdicts need not be the same".[60]In relation to the emails, the direction was:
"Now, there is some evidence about emails, which you have got and which I shall refer to very shortly. They are emails from Mrs Salford, and there is the one which is exhibit 10, in particular, where she appears to make comments adverse to her husband. That is not and cannot be evidence against him. He was not present when the emails were sent or received. He had no opportunity to contradict it. You must, therefore, disregard it when you are considering the case against Mr David Stalford."
Absence of evidence from BS[61]In relation to BS, a detailed and appropriate direction was given on her failure to give evidence No complaint is made about it on her behalf, but, on behalf of DS, reference is made to one part of it:
"On her behalf, the defence invite you not to draw any conclusion from her silence, on the basis of the following matters. Firstly, she gave a very full account in long interviews with experienced police officers. Secondly, the e-mail in exhibit 10, where she says "
It is possible to love a person, yet detest what they have done", may indicate that she feels that her husband has behaved very badly but she will not speak against him and is, therefore, unable to go into the witness box."[62]That was a necessary direction for BS's benefit but, on behalf of DS, it is submitted that the summing-up was defective in that the judge failed to direct the jury that the reasons given by BS for not giving evidence were not to be used as evidence against DS. In his closing speech, prosecuting counsel did comment on the failure of BS to give evidence and suggested that she had not done so because of DS' dominance over her and a desire not to be cross-examined on (for example) the e-mails, but, the court is told, added that there was no evidence to support any suggestion that it was because of pressure from DS. In the course of submissions which followed the main part of the summing-up, the judge twice told counsel that he would direct the jury that the direction about her not giving evidence "does not apply in any way to Mr Stalford and there is no question of any inference being drawn against him about her silence. It only relates to his wife". No such direction was in the event given and the point was not raised again by counsel. It is submitted that the jury might infer, to the detriment of DS's credibility, that he had put pressure on her not to given evidence.[63]The absence of such direction must be considered in the context of the particular facts. There was evidence from the complainants about the relationship between father and mother, DS and BS, as well as between them and the complainants. The jury were entitled to consider that, insofar as it may have helped them. When giving evidence, DS was asked about the relationship and his wife's conduct. He said (page 93):
"I have always denied any wrongdoing with my wife and I accept that I have a devoted and loving and loyal spouse."
He was asked about his subjecting people to his authority and he denied it. It was put to him that he was really using his daughters and treating them as objects. He denied that.[64]The important issue in the case was the credibility of the witnesses.

The judge concluded the main part of his summing-up by stating:

"You may think it is important that you should concentrate on the evidence in the case, in other words, the evidence you have heard from the witness box and the evidence in the interview statements, rather than spreading your considerations into all the things in the books, [on devils and witchcraft] because they are not, you may think, a key part of the evidence and the key issues you have to decide, you may think, essentially, on the credibility of the witnesses."
The complainants and DS had given evidence for a long time and been properly cross-examined.[65]There was considerable evidence, which the jury were entitled to consider in relation to DS's case, of the nature of his relationship with his co-accused and with the complainants. We do not consider it a real possibility that the jury's assessment of his credibility would have been influenced favourably by a direction such as that contemplated or unfavourably by its absence. Of course, whether his co-accused gave evidence could have an impact upon the outcome of the trial, as is very often the case with co-defendants, but it is not a real possibility that the outcome of the case would have been affected by the proposed addition to the direction, to which BS was entitled, as to BS's failure to give evidence. Indeed, DS's attitude to whether BS gave evidence, as distinct from other features in the case, was in any event most unlikely to influence the jury's attitude to the question whether he was, or may have been, telling the truth. The judge should of course have given a direction which he said he would give but its absence has no impact upon the safety of the verdicts on DS. BS's answers in interview[66]The next point is that the judge did not direct the jury that BS's answers in interview were not evidence against DS. Nobody picked up that absence, Mr Levett frankly stating that he completely missed that the judge had not given it, save in relation to the emails, with respect to which an appropriate direction was given. We are not surprised that no reference was made to the point because BS's interview, as summed up in detail by the judge, contained nothing critical of or incriminating DS. The judge reminded the jury that DS "denied everything that was alleged from first to last". The jury were reminded that they were not concerned with S, about whom BS was interviewed, and the judge had directed them accordingly. BS admitted that she was a hedge witch but she said that was solitary and she firmly denied that DS had ever joined in. The summary of the interview had concentrated, and rightly so, on ritual sexual abuse alleged against her. The absence of such a direction can have had no impact on the safety of the verdicts. Evidence of Andrew Cook[67]The final point made on behalf of DS, although not in the grounds of appeal, is in relation to the evidence of Andrew Cook, E's former husband. We do not have a copy of the judge's ruling in relation to his being called but it is not disputed that he was called by the prosecution for a very limited purpose. However, he was cross-examined in some detail by counsel for each of the appellants. For DS, Mr Levett sought to establish, and we can see the forensic value of the point, that E had made allegations to him about her father having sexual intercourse with her three sisters, S, K and A. He replied that she had so alleged, though E herself had denied making the allegations. In his summing-up the judge stated: "You may recall straight away that is a big difference from what she said. She denied it, he confirmed it. So, there was a difference between her former husband and she about that".[68]It was important to DS that the credibility of E was attacked and Mr Levett sought to do that. For BS, Mr Dyble understandably sought to establish, and did establish, that E had not complained about her mother. Ritualistic activities had never been mentioned. To highlight the difference, Mr Dyble extracted some further particulars of E's complaints about her father beyond those extracted by Mr Levett, including about the allegation of sex with the three other sisters. The judge summarised this further evidence briefly and without comment.[69]Mr Levett having, for good reason, taken the course he did to extract evidence that E had complained to her husband about her father, it is not in our judgment open to him to complain about the course events took or about the lack of further direction. In any event, the possibility that the lack of further direction influenced the jury in the circumstances of this case is not in our view a real one. Indeed, it might have had the effect of undermining the point Mr Levett was seeking to make. Conclusion on DS[70]The evidence, including that of DS, was fully and fairly summarised by the judge in his summing-up. At the very end, the judge rightly emphasised the key issue as being the "credibility of the witnesses". The directions given were appropriate and the lack of further direction does not at all undermine the safety of the verdicts in the case of DS. His appeal against conviction is dismissed. BS and S's allegations[71]The specific point taken by Mr Dyble on behalf of BS is that the direction with respect to S's allegations, subsequently withdrawn, was inadequate. The direction was:
"S you have heard about. She lived with her parents until they were arrested; and because she has to be cared for by others, she was then placed in local authority care. I think it was made clear that after their arrest they were on bail and their bail conditions prevented them having any contact with her. As I have said, you should not treat any of the evidence about her as relevant to this case; and it is very sad that she is not medically fit to look after herself, because she is a paranoid schizophrenic."
[72]The submission is that it was important to BS's defence that false allegations by S were the motive for E and A's false allegations about BS as they believed S had been put up to it by their mother to undermine their credibility.[73]The judge had to be fair as between defendants. It was important to DS that the jury should not regard complaints of S as evidence against him and a direction was given accordingly. Mr Dyble, in submissions at the end of the summing-up, stated that inviting the jury to disregard the evidence of S in the round did not do justice to BS's above case. To meet the point, the judge stated, when giving further directions:
"Lastly, in relation to the story which S had given, I said it could not support anything in this case, but I went a step too far. You should rely on the fact of that complaint by S in terms of when it was made and the effect it had on the other sisters."
[74]Mr Dyble submits that the additional direction was insufficient in that it lacked guidance on how the jury were to approach the evidence of S. We do not accept that submission. The qualification to the general direction was given succinctly and alerted the jury to the point, that is the possible effect of S's story on the other sisters. There was a danger that a more detailed direction would have undermined the earlier direction properly given. Conclusion on BS[75]We do not repeat the points already considered in relation to the manner in which the summing-up was given. The points made on behalf of BS, including that just considered, do not cast doubt upon the safety of her convictions. Her appeal is dismissed. Sentence[76]DS seeks an extension of time and leave to appeal against sentence. When sentencing DS, the judge stated that the aggravating features of the offences were the gross breaches of trust involved and the length of time over which the offences were committed. The judge referred in detail to the profound effects on the victims of the conduct they had endured. It was, and continues to be, very serious and has affected their relationships with other people over a long period. They have been brave in coming forward and steadfast in giving their accounts to the court, the judge stated.[77]The judge acknowledged previous good character and the length of time since the offences. The applicant is now 59 years old. The judge described DS as an evil man. The most serious offences, the judge said, were counts 13 an 14.[78]For DS, Mr Levett submits that the overall sentence was too long and further submits that the consecutive sentence of 4 years on count 13 was not justified. It was a specific and not a specimen count. By the time the offence was committed, E was 17 years of age.[79]The evidence at the trial has been summarised. This court need not elaborate further on the seriousness of the offences and of their effects. It is not in our judgment arguable that the overall sentence of 9 years, following a trial, was manifestly excessive and, although an extension of time is granted, the application for leave to appeal against sentence is refused.

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