R. v Clark [2006] EWCA Crim 231

Case No 200500091/B3[2006] EWCA Crim 231
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 3rd February 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE NELSON
SIR JOHN ALLIOTT
Between
R E G I N ACrown-v-
Between
NIGEL PAUL CLARK
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 A POLSON appeared for APPELLANTMISS R COLLINS appeared for CROWN
J U D G M E N T

LORD JUSTICE GAGE:

On

[1]17th December, at Swindon Crown Court, this appellant, Nigel Clark, was convicted of a number of offences on a 24 count indictment. The convictions were as and sentences were as follows: count 1, indecent assault, 6 months' imprisonment concurrent; count 5, rape of a female under 16, 13 years' imprisonment; count 6, buggery, 7 years' imprisonment; count 8, incest, 5 years' imprisonment, concurrent; count 18, rape of a female under 16, 13 years' imprisonment concurrent; count 19, gross indecency with a child, 18 months concurrent; count 21, rape of a female under 16, 13 years' imprisonment concurrent; count 24, unlawful sexual intercourse with a girl under 13, 5 years' imprisonment concurrent. The total sentence was therefore 13 years' imprisonment.[2]In respect of the other counts on the 24 count indictment, the appellant was acquitted. The complainant, in relation to counts 1 to 17 was the appellant's daughter, K, who was aged 34 at the date of trial. In relation to counts 18 to 24, the complainant was a school friend of the appellant's daughter. She was A and was aged 33 at the time of the trial. The allegations were of systematic, historic abuse of both girls when they were aged between 10 to 15, in A's case between 10 to 12.[3]The essential evidence was as follows: K said that following her parent's separation in 1980 when she was just 10, she went to live permanently with the appellant and her brother, N. The appellant always treated her as his little girl and made her feel grown up. Her best friend was the complainant, A. She described her close friendship with A and that they were inseparable friends. She often stayed overnight at A's home and A would come to her house after school, during the days and at weekends. She did not specifically recall A sleeping over at her house.[4]So far as count 1 is concerned, she said that on an occasion during a thunderstorm, she stood looking out of the window when the appellant came and stood behind her and began to caress and fondle her genitals whilst he had an erection. This was a count of indecent assault. The appellant was convicted of it. Counts 2, 11, 14 and 17 related to further allegations of indecent assault in respect of which the appellant was acquitted.[5]So far as count 5 is concerned, an allegation of rape, of which the appellant was convicted, K's evidence was that the appellant returned home in a drunken state one evening and insisted on having sexual intercourse with her. Although she did not agree with it on this occasion, she attempted to push him away and felt afraid. He forced himself upon her and penetrated her vagina from behind. She protested but he continued regardless. She said she was upset and told him how she felt.[6]Counts 6, an allegation of buggery, occurred in this way, said K. She said the appellant told her that he wanted to try something different. He asked her to kneel on the settee with her face over the back. He penetrated her anus from behind. She said it was painful and she told him to stop, so he did.[7]Counts 3, 4, 7, 9, 12 and 15 were all counts of incest of which the appellant was acquitted. Count 8 was a count of incest. He was convicted of that. K alleged that she had consensual sexual intercourse with the appellant because he made her feel special and loved. In relation to count 8, she said this was an occasion when the appellant asked her if A would join in with him and K had no reason to think that at the time that this was an odd request. She recalled being in the lounge when it was daylight outside but the curtains were closed. The appellant lay naked on the floor. She and A were also naked. She sat on top of the appellant and they had intercourse, although he did not ejaculate. Afterwards A got on top of the appellant and he had sexual intercourse with her. Later he told them not to tell anyone and they did not. In fact, it was never mentioned between them. This incident also formed the basis for counts 23 and 24, in relation to A to which we will return.[8]So far as the counts of indecency with a child, counts 10, 13 and 16, the appellant was acquitted of each of these three counts. K said, in evidence, that following these events she continued to be good friends with A for a while but gradually they grew apart. They reached a stage when she, K, became interested in boys of her own age. She realised that sexual activity with her father was not normal and she no longer welcomed his attentions. She met a boyfriend who eventually became her husband. Things became uncomfortable at home after this time, and the appellant's attitude towards her changed. Eventually she left to live with her boyfriend's parents.[9]When she was 18 or 19 her mother asked if the appellant had done anything to her, to which she replied "yes", but begged her mother not to inform the police. A few years later she told her brother. In June 2000 she was contacted by the police and made her formal complaint.[10]So far as A is concerned, her evidence was that in relation to count 18, K had fallen asleep at K's home in the bedroom that they both were occupying. A was dozing when the appellant came into the room wearing a blue towel on his waist. He asked her to go with him to his room, which she did. He dropped the towel and was naked. He told her not to be afraid and placed his hand on his penis. She was afraid but he told her it would be okay. He lay her on the bed, removed her pyjamas bottoms, digitally penetrated her vagina and then raped her. She said that when he had finished she stood up and felt sick and afraid because there was blood dripping from her. He ran her a bath and she then went back to bed. On the following Monday the appellant said to her that it would be their little secret and it would be okay. Although she felt petrified she was flattered.[11]So far as count 21 is concerned, also an allegation of rape she said that a couple of weeks later there was another sleep over. Again the appellant came to her room and asked her to come with him, which she did. He removed his trousers, lay her on her back, put her hand onto his penis before penetrating her vagina. Throughout the incident she said that she said "no" on a number of occasions. She spent the rest of the night in the appellant's bed and felt numb. In the morning she was too afraid to tell K or anyone else.[12]Count 19 was an allegation of gross indecency with a child of which the appellant was convicted. This related to A. She said during a lunch break she saw the appellant by his gate. He said he would make her a sandwich if she came inside. In the living room he told her to kneel in front of him and showed her how to put his penis into her mouth. He ejaculated. She felt dirty and vomited on him.[13]Count 23 was an allegation of gross indecency. The appellant was acquitted in relation to this count. It was alleged to have occurred on the occasion when both A and K were together. A's evidence was that they had been playing strip poker when the incident occurred. She said that, on that occasion, she was lying on the floor when she had sexual intercourse with the appellant. Before that, he had asked her to perform oral sex on him.[14]There was a difference in her evidence of that incident and that of K's in that K said that the incidents of sexual intercourse took place with the appellant lying on his back on the floor. A said that the incidents took place with the girls lying on the floor and the appellant on top of them.[15]The appellant, in evidence, a man of good character, said that he loved his daughter K. It was his evidence that he was not guilty of any of the charges and that nothing of the nature of the sexual offences had taken place. He agreed that there had been a lack of contact between him and his daughter, K, since she left home at 16, but that was not due to any wrongdoing by him.[16]At an early stage in the proceedings the prosecution served as unused material the statement from Judith Jones, a hypnotherapist. She had conducted hypnotherapy sessions with A. On 7th January 2004 A revealed that the appellant had sexually abused her. Miss Jones' notes were disclosed and considered by an expert instructed by the defence, Dr Naish. She was critical of her methods and techniques.[17]On the basis of Dr Naish's report the defence submitted, before the evidence was called, that the evidence of the second complainant, A, should be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984. It was said that her recollections may have been the product of hypnotherapy and not an accurate recollection of what had occurred. There was also some concern, because research showed that the public believed a person under hypnoses was incapable of telling a lie. Secondly, it was submitted that even if A's evidence was admitted, the defence ought to have been entitled to call the evidence of Dr Naish as to the dangers of evidence produced through hypnotherapy. The judge ruled against this application on both the basis, ruling that A's evidence should be heard by the jury and the evidence of Dr Naish should not be admitted.[18]The judge's ruling in relation to that matter first forms the first of three grounds of appeal, leave for which was granted by the Full Court.[19]As we have already indicated, in December 2003, A consulted Judith Jones and underwent counselling. Judith Jones is a hypnotherapist. It was A's evidence in cross-examination that because of the problems in her personal life, she had consulted Judith Jones. She agreed that the counselling included hypnotherapy. Judith Jones' statement was disclosed to the defence and no attempt was made by either the prosecution or the defence to call her as a witness.[20]In cross-examination in relation to this matter, A was asked about the hypnotherapy and her disclosure to Miss Jones of the sexual abuse. She was asked the question whether she agreed that it had happened on the fifth occasion that she received counselling, she said:
"I'm not hundred percent that it was the fifth, but I can remember making the disclosure."
She was then asked the following question:
"Okay, it certainly was not straightaway, it was not in the first time you went into or were placed under hypnosis and what I want to ask you about it, when you made the disclosure to the therapist, really why it took quite a long time for you to do that? A. Because my sub conscious mind wouldn't reveal."
[21]In her witness statement, adduced for the purposes of these proceedings, she had said at page 12 of the witness statements:
"During my childhood and adult life I've always known that what Nigel Senior did to me was wrong. But I attempted to deal with it by attempting to forget what had happened to me. For this reason I told nobody about what had happened to me. I still feel ashamed about what happened to me and now that I am married with children of my own I do not want to cause any distress to either my parents, husband, children or family by revealing what had happened to me."
[22]The defence asked the judge to rule A's evidence inadmissible under section 78 of Police and Criminal Evidence Act. It was submitted that the fact that her complaint only emerged as a result of hypnotherapy gave rise to a very considerable risk that her recollection was a false memory induced by hypnotherapy. Alternatively, the defence submitted that it should be allowed to call its expert, Dr Naish, to give evidence.[23]Both Dr Naish's report and Miss Jones' statement were before the judge. He rejected both these applications. In his ruling he records a precis of much of Judith Jones' statement. That statement has been placed before this Court today. He went on to refer to the defence submissions and criticisms made by Dr Naish of Miss Jones' techniques before ruling that the statement of Dr Naish inadmissible and the evidence of A admissible.[24]The first ground of appeal, as we have indicated, centres on this ruling. Counsel for the appellant, Mr Polson, makes the following submission. He submits that it is significant that the first complaint made by A rose in the context of hypnotherapy sessions. Secondly, the statement of Dr Naish raises a question over the reliability of any allegation arising in such circumstances. Thirdly, the way Miss Jones dealt with A in counselling sessions also raises issues of reliability. He submits that Dr Naish's evidence suggests there is a risk of false memory arising because hypnotherapy cannot make a person remember what he or she did not remember before. Fourthly, the hypnotherapy it is submitted is not conducted properly and therefore can lead to the subject, if not conducted properly, being open to suggestion. Fifthly, A's evidence that her subconscious memory prevented her from making these complaints is a clear example of an idea which must have come in as a result of Miss Jones' counselling. We have referred to that part of A's evidence earlier in this judgment. Finally, it is submitted that the knowledge of the benefits and dangers of hypnotherapy are matters outside the knowledge of the ordinary members of the public.[25]On this ground, for the respondent, Miss Collins submits that the basic problem, so far as the proposed evidence of Dr Naish is that it is based on a false premise. She submits that this was not a case of false memory because, in her witness statement, A had said, in the passage to which we have already referred, that she had always had this knowledge from the earliest moments. It was just that she was unable to tell others about it. Further, it is submitted that there is no evidence in the witness statement of Miss Jones to suggest that she had made suggestions to A during the course of the hypnotherapy. Indeed the witness statement deals with this specifically, when Miss Jones says that she was very careful not to make any suggestions.[26]Accordingly, it is submitted that there is no underlying factual basis to support Dr Naish's evidence and his whole report is made on this false premise. Fourthly, it is submitted that in any event in this case, there was the supporting evidence of K as to the incidents which formed the basis of counts 8 and 24. K's evidence supported A's.[27]In our judgment, the judge was correct to reject the application to rule A's evidence inadmissible. The police were not responsible for the counselling sessions and ultimately it was for the jury to assess her credibility in the light of all the evidence that it had heard.[28]The real issue, then, is whether the judge was right to exclude the evidence of Dr Naish.

(S) 80 at page 83:

"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury, if on the proven facts a judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary."
It is of course essential for it to be based on proven facts.[29]The issue therefore on this ground of appeal is whether Dr Naish's reports(a) states the facts on which his opinion is based, and(b) whether his evidence of opinion which he could give, based on scientific information, which is likely to be outside the experiences of the jury. For this reason we have asked both counsel to deal with his report and identify those passages where the doctor deals with matters which may be considered outside the experience of the jury.[30]Having conducted that exercise, it is quite clear that there are large passages in Dr Naish's report which are not admissible, in particular, we refer to paragraph 3 under the heading "[AS's] allegations". There the doctor sets out matters which are solely concerned with whether or not that witness could be described as truthful. They ought never have found any place in this expert witness's report.[31]However, there are other passages which can be described, properly described, as true opinion evidence, outside the knowledge of and experience of jurors. In our judgment, the passages at paragraph 1.2, and the whole of paragraph 2 are admissible as matters which are outside the experience of the ordinary juror. For instance, paragraph 2.4 states:
"Hypnosis is not, as some people imagine, a key to the memory. It has no power to recover otherwise inaccessible material; what is lost (or perhaps never stored) cannot be accessed by hypnosis, or any other technique. What hypnosis does do is facilitate the processes of imagination and suggestibility. People vary in their responsiveness to hypnosis but, for a person who is susceptible, events imagined during a session feel extremely real. The reality is such that the person come to accept the images as memories of real past events: a false memory has been formed."
In our judgment, that passage, if accepted or if the jury might have thought it was correct, is the answer to the submission made by the prosecution that his report is based on the false premise that A had all remembered these events. It seems to us that, if this memory had been a false memory engendered during the course of the physiotherapy sessions there is a possibility, at any rate, based on Dr Naish's evidence that she would have regarded it thereafter as a genuine and real memory.[32]Paragraph 4 also provides support for the submission that Dr Naish's evidence contains matters which will be outside the jurors knowledge and experience. In that passage, the doctor criticises techniques that were used by Miss Jones. It is quite clear that Dr Naish is a very experienced expert in this field. His criticism make the point that, to some extent, Miss Jones is a much less well experienced expert in this field and has fewer qualifications. That would be a matter for the jury to assess as, in our judgment, it would be something which the jury should assess in relation to the techniques used by her, which are criticised by Dr Naish.[33]It follows that, in our judgment, there are passages in Dr Naish's statement which are admissible and that cause us to conclude that the judge's ruling refusing to allow him to be called was wrong. We ask ourselves the question: does that cause us to view the evidence as a whole and the verdicts based on the evidence as whole as unsafe?[34]Dr Naish's evidence only affects A's evidence. So far as the verdicts of guilty are based on her evidence are concerned, in our view, they cannot be said to be safe. We take into account the fact that K gave evidence which supported A's evidence. Nevertheless, as is clear from the acquittal of the appellant in respect of some of the counts involving A, the jury did not accept the whole of her evidence. In our opinion, if they had heard Dr Naish's evidence, it may have affected their verdicts on all the counts involving A. We cannot be sure that it would not have done.[35]We proposed therefore to quash the convictions which involve A. We go on to consider whether the convictions in respect of K are safe. As the Full Court observed when giving leave, the quashing of the convictions concerning A would inevitably have a knock-on effect in relation to the guilty verdicts involving K. This is demonstrated by the judge's direction that the evidence of one could be used to support the evidence of the other.[36]In our judgment that also deals with the point made on behalf of the prosecution that K's evidence supported A's evidence. If the jury had felt they could not rely on A's evidence that might have affected their verdicts in relation to the counts involving K.[37]Accordingly, in those circumstances, we have come to the conclusion that these verdicts cannot be regarded as safe and must therefore be quashed. Having reached this conclusion there is no need for us to go and deal with the grounds of appeal, which contend that the verdicts were inconsistent. There are arguments that support the fact that they may have been equally arguments that they may not have been. However, it is not necessary for us to deal with those.

LORD JUSTICE GAGE: Are there any applications?

[39]MISS COLLINS: We would and I have spoken to the officer who is here today, seek a retrial. He has been in custody since he was arrested in relation to these matters.

LORD JUSTICE GAGE: Yes. Let us see what Mr Polson says. Can you resist that, Mr Polson?

[41]MR POLSON: I do not think I can, my Lord.

LORD JUSTICE GAGE: I do not think you can either.

[43]Very well, we allow the appeal and quash the convictions. We direct that a fresh indictment be preferred. We direct that the appellant be re-arraigned on the fresh indictment within 2 months. Now, should we specify the Crown Court, and if so, should it be Winchester?[44]MISS COLLINS: It was in fact Swindon Crown Court, Swindon may have difficulties, it is a rather small court centre.[45]THE ASSOCIATE: Leave it to the presiding judge of the circuit.

LORD JUSTICE GAGE: He can be arraigned on a fresh indictment within 2 months at a Crown Court as directed by the presiding judges. Now, are there any further applications. You want a representation order?

[47]MR POLSON: Yes please, my Lord. The question of bail rises.

LORD JUSTICE GAGE: You have to go to the Crown Court for that.

[49]MR POLSON: So be it.[50]THE ASSOCIATE: For the record, you should specify for the record which counts he is to be retried upon.

LORD JUSTICE GAGE:

[51]You are quite right. He should be retried on counts 1, 5, 6, 8, 18, 19, 21 and 24. Thank you both very much.

Cited in 1 later judgment