H, R. v [2006] EWCA Crim 853

[2006] EWCA Crim 853Case No 2005 06605 B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM CARDIFF CROWN COURT
HIS HONOUR JUDGE S. HOPKINS QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/04/2006
Before
LORD JUSTICE RIXMR JUSTICE ANDREW SMITHHER HONOUR JUDGE GODDARD QC
Between
ReginaAppellant'H'Respondent
Mr Stephen Jeary for AppellantMr J Rowley (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date : 7 April 2006
JudgmentThis is the judgment of the court :
[1]The appellant in this case applied for leave to appeal against conviction and sentence. The single judge refused leave to appeal against conviction on two of the grounds advanced and otherwise referred the application to the full court. Leave to appeal against sentence was granted. The appellant renewed his application in respect of conviction in so far as it had been refused. On 7 April 2006 we heard argument upon the application (and renewed application) for leave to appeal against conviction and upon the appeal against sentence. In the course of the hearing the appellant abandoned two of the seven grounds of appeal against conviction. We granted him leave to appeal against his conviction on the other five grounds, and reserved our judgment upon that appeal. We dismissed the appeal against sentence (subject to one possible point of clarification to which we shall later refer), and said that we would give our reasons for our decision in this judgment.[2]The appellant is a 14 year old boy who was convicted on 5 December 2005 in the Crown Court at Cardiff on four counts of rape by oral penetration contrary to section 1 of the Sexual Offences Act, 2003. He was sentenced to a term of 18 months detention under the Powers of Criminal Courts (Sentencing) Act, 2000 and the court made an order disqualifying him from working with children.[3]The offences were alleged to have taken place between 1 May and 31 December 2004. The appellant was then aged 12 or 13 years. The victim, to whom we refer as E, was born in September 1998, and was aged 5 or 6 years at the time of the alleged offences. He had an elder brother, T, who was born in June 1993 and would have been 10 or 11 years. Another boy, D, a friend of T’s, was born in June 1991 and was aged 12 or 13 at the relevant time. The four boys would from time to time play together in areas known as Donkey Woods and Pottery Lane. The prosecution case was that the offences took place in one or other of those places. In fact, E said that he was made to perform oral sex on the appellant eleven times. The appellant’s defence was that these incidents simply never took place.[4]According to the prosecution the offences came to light when on 14 December 2004 D went to E’s house and spoke to E’s mother, Mrs B. The conversation took place on the doorstep. D said that he had something to tell her: that the appellant had made E “suck his willy”. This had happened “down Pottery Lane” a month earlier. E and T were standing by their mother when D said this, and E denied it, saying, “No, mam, I didn’t”. When D left, E was taken by his mother into the living room and she asked him to tell her what had happened, and E said “Yes, he did”. She did not question him further. T was present during this conversation and, when asked by his mother, he said, “Yeah, it did happen”. Mrs B contacted the police.[5]On 23 December 2004, E was interviewed by the police and the interview was video-recorded. Initially he said that he did not want to talk about what had happened to him, but that he would talk about it in a week’s or two weeks’ time. He then said that he had forgotten to tell his mother that the appellant always used to hit him with a stick. When asked whether he wanted to talk about the appellant, E shook his head and said, “I just wanted to tell mum about that” and that he had told her about it “yesterday”. He did say that the appellant had hit him about ten times with a stick, and that the appellant had thrown a stone at him on the same day. This, he said, had happened four or five weeks previously, when they “went Pottery”, but he could not remember who else was there. In response to further questions he replied that he had forgotten the other things that the appellant did to him and that there was not anything in particular that he could remember. He said nothing about anything sexual taking place.[6]T was interviewed by the police on the same day and his interview too was video-recorded. He described being “down the forest”, in Donkey Woods, with E, D and the appellant playing a game of chase. The appellant said to E, “Come and suck my willy”. The others protested, but the appellant told them to “shut up”. He said that the appellant had threatened him and D that if they told anyone, he would hit them “or something like that”. The appellant had grabbed E and, still standing, had taken down his trousers and boxer shorts and “forced” E to suck his penis. T explained that the appellant had taken hold of E’s head and pulled it down with his hands. He and D were close by. T said that the incident lasted about five to ten seconds and finished when E pulled his head back. Afterwards the appellant went home and the others played football together. T described only one such incident. He said that it had happened at 1.00pm on “November the 15th or something”. He thought that it was during half-term when there was no school.[7]D had a video-recorded interview with the police on 1 February 2005. He recalled an occasion on a Sunday about a month before Christmas, or, as he later put it, three weeks before he went to speak to Mrs B, when the four boys were in the woods. We were told by Ms Rowley, who represented the Crown at trial and before us, that the Pottery Lane area would not be described as a wood. However, we observe that the appellant when interviewed by the police on 22 July 2005 described Pottery Lane as “a wooded area” with fields, a river and paths, and we have seen no evidence to the contrary. T said that “there’s a lane with all trees and a little stream”. D explained specifically that he knew that the incident that he observed was on a Sunday because T had his pocket money and T was given his pocket money on Sundays.[8]D gave a notably detailed description of what happened. He said that the four boys were playing with sticks. Then he saw the appellant sitting on a milk crate: he took out a pornographic magazine, a book with “women with no tops and that”, and masturbated. E was standing in front of him and laughing. D and T were close by: he was playing with sticks and T was climbing a tree. He heard T exclaim, “Ugh”, and he turned round to see the appellant grab E by his tee-shirt and push E’s head to his private parts. He tried to intervene: he was “getting [E] off, [the appellant] would not let go of E”. The appellant had hold of E by his tee-shirt. The appellant told D to “stop it before I beat your head in”, and D had to let E go. He said that then he saw the appellant make E “suck his willy”. His “willy” was in E’s mouth for five or ten seconds, and the appellant stopped when E screamed and pulled away. T “couldn’t look” while this was going on. When it ended, D, T and E went home, leaving the appellant behind in the woods.[9]The appellant was arrested on 17 June 2005, just over six months after the first report to the police, and he was asked about the allegations against him, which at this stage were, of course, confined to one incident in Donkey Woods when E, T and D were all present. He denied them. He said that there had been an occasion when he had been in Donkey Woods with E, T and D. They had been pretending to have a sword fight with sticks, and D had accidentally hit him on the ankle. He had fallen over and hit his head. He said that before they had been to the woods, he had shown D what he described as a “porn magazine”, a magazine with pictures of naked women, that he had found at or near his school.[10]The police conducted a second video-recorded interview with E on 10 July 2005, more than six months after his first interview. There was no evidence about the reason for the delay. This time E said that the appellant used to punch him but he was only playing, but E also told the police that he had been sexually assaulted by the appellant: that the appellant had made him “suck his willy” on eleven occasions.[11]E said that this had taken place “down Pottery Lane”. He also said that it had taken place at the “pit”, which is, according to T’s evidence, part of the Pottery Lane area. Sometimes it happened elsewhere. E said that it had happened “a long time ago”, when the weather was quite warm. He said that the appellant would take off his coat and E’s coat, put them on the ground and lie on them, and would pull down his trousers and underpants. E would have to kneel down and suck his penis. E said that every day (but then he said some days) the appellant had a small silver penknife: he held it up at shoulder height and threatened E with it, saying that he would chop his neck off and that he would punch him in the nose. When E was kneeling, the appellant stuck the knife into the ground. According to E, when he took his mouth away the appellant would make him start again: he was not allowed to stop for half an hour.[12]E was asked about who else was there. He said that “most times” T and D were there. He appeared to be saying that they were there on occasions when the appellant had the knife. They had tried to stop the appellant, but he would not let them do so: he would say to them, “Don’t, no, you aren’t stopping me”. The appellant would not let them “take my mouth off his willy”.[13]On 22 July 2005 the police interviewed the appellant for a second time to ask him about E’s allegations of incidents in the Pottery Lane area. He said that he had not been down Pottery Lane with E, but that he had been there with T and D a few times. He said that he did not own or carry a knife, and had not threatened E with one. He denied that he had forced E to suck his penis and denied that he had threatened him as E had described. He had been alone with E only when they talked outside his, the appellant’s, house.[14]On 30 August 2005 T was interviewed for the second time, the interview again being video-recorded. This time he said that E “got forced to suck [the appellant’s] willy” “a few times”. In reply to further questions he said that it had happened “on four times” and then said, “I know about four times but I dunno how many times”. He went on to say “At least four times. It’s around three, four times”. He said that it was hard to remember individual incidents because they had happened so long ago, before Christmas.[15]On the first occasion, according to T, when he, the appellant and E (but not D) were “down Pottery” by the stream, the appellant told E to come over, pulled down his trousers and underpants, grabbed E’s head and forced it down and told E, “suck”. E, who was standing up, “sucked on his willy”. It went on for 20 or 30 seconds. He, T, was close by.[16]T said that the other incidents were in different parts of the Pottery, and he thought that it happened “mostly on the weekends”. He said that he had “probably” asked the appellant not to do it, but the appellant had told him to “shut up”. He referred to an occasion in August or September 2004 by the pit, saying that he could not remember the details of it but that it was “just really the same”: again, the appellant forced E to have oral sex for 20 or 30 seconds. On this occasion, T said, the appellant had tried to make him as well as E have oral sex: the appellant had come over to where T was sitting down and went to pull his trousers down, but T had pulled his head away and said “No”.[17]There was a third incident by the stream on a day when it was quite cold at the end of September. Again, T said, the appellant forced E to have oral sex for 20 or 30 seconds. He confirmed that there was a fourth occasion when he and D were present in Donkey Woods.[18]The prosecution relied upon all this evidence to support the four charges. The first two were presented as relating to occasions when T was present but D was not. The third charge was said to be a specimen count in respect of when the appellant and E were alone. The fourth charge related to the last occasion when D was present.[19]The trial took place between 28 November 2005 and 5 December 2005. The evidence of E, T and D was given by playing the videos of their police interviews, and in the case of E and T both interviews were shown. The boys were questioned over the video-link in the course of the trial: E supplemented his interviews by way of evidence in chief, and all three boys were cross-examined. The prosecution also called Mrs B, who gave evidence about her conversations on 14 December 2004 with D and then with E and T. The officer in the case, DC Richards, who had conducted both interviews of the appellant, gave evidence about what he had said. There were formal admissions about D: that not long after starting at secondary school he was withdrawn from lessons but continued to misbehave and among other things he used menaces to demand money. On 8 December 2004, less than a week before he made the allegation against the appellant, he was excluded from school permanently with effect from 11 February 2005.[20]E was asked in cross-examination about what he had said in his first interview about being hit with a stick and he answered that on one occasion the appellant had hit him because E refused to “suck his willy”. The other boys were not there. E said that when the oral sex had taken place the appellant was lying down on the coats, and he would lower, but not remove, his trousers; and that the sessions of oral sex lasted longer than a Scooby-Doo cartoon, which would, we are told, be longer than 20 minutes. E confirmed that the appellant had a knife, which he held at shoulder height, but he went on to say that the appellant did not always have the knife: he had it only once, on an occasion when T and D were not there. He then said that the appellant had the knife with him twice; and then that he had it on three or four occasions. However, his evidence remained that these were all occasions when neither T nor D was there.[21]E was asked when the other boys had been present, and about his answer in his second interview that “most times” T and D were there. He said that there were only two occasions when both T and D were there. He said that sometimes he was with only the appellant and T, and he remembered one such occasion.[22]In re-examination, E was asked whether the oral sex had ever taken place when the appellant was standing up. He said that it had once but that was when neither T nor D was there.[23]When T was cross-examined, he said that both E and the appellant were standing when the offence took place. He said, as he had in interview, that the appellant had grabbed E’s head and “put it on his penis”. It lasted no more than a few seconds, and then E pulled his head back and “that was the end of it”. T said that that happened on each of the occasions that he witnessed, and he never saw the appellant threaten E with a knife.[24]T was asked why, when first interviewed by the police, he mentioned only one occasion. He replied initially that he had thought that only the first time mattered, but when it was pointed out that he had not told the police about the first time, he said that he had meant that only the last time mattered, and that he had only answered the questions that the police asked.[25]When D was cross-examined, he confirmed the account that he had given the previous February. He said that the incident went on for between five and fifteen seconds after he had tried to pull E away.[26]The appellant did not give evidence. Ms Rowley, we understand, did not initially intend to make a closing speech. The Judge encouraged her to comment upon the failure of the appellant to give evidence, and, so encouraged, she made a speech emphasising this.[27]The grounds of appeal against conviction are, in summary, these: i) That the evidence was so weak and tenuous because of inconsistencies that no reasonable jury could properly have convicted on it, and the case should have been withdrawn from the jury. ii) That the appellant was unfairly treated and his right to a fair trial and equal treatment was violated. iii) That the Judge unfairly and prejudicially interrupted the cross-examination of T. iv) That the Judge’s direction on the ingredients of an offence of rape under section 1 of the Sexual Offences Act 2003 was defective. v) That the Judge wrongly declined to issue a witness summons. For the sake of completeness, we record that the grounds of appeal that were abandoned related(i) to the admission of the evidence of Mrs B that, having initially denied it, the brothers told her that the appellant had done what D had reported to her, and(ii) the admission of evidence of certain answers given by the appellant in interview.[28]In support of the first ground of appeal, the appellant cited the well known authorities of Galbraith, (1981) 73 Cr App R 124 and Shippey, (1988) CLR 767, and also the unreported decision of Ciro Gallo, [2005] EWCA 242. In Ciro Gallo this court referred with approval to this passage from Blackstone’s Criminal Practice (now at D14.27 of the 2006 edition): “The question whether a witness is lying is nearly always one for the jury, but there may be exceptional cases … where the inconsistencies (whether in the witness’s evidence viewed by itself or between him and other prosecution witnesses) are so great that any reasonable tribunal would be forced to the conclusion that the witness is untruthful. In such a case (and in the absence of other evidence capable of founding a case) the judge should withdraw the case from the jury”.[29]At the close of the prosecution case, Mr Jeary, who represented the appellant at trial and on this appeal, applied that the case be withdrawn from the Jury. He argued that there were such inconsistencies both in the accounts given by individual witnesses viewed in isolation and between the evidence of E, T and D that the matter should not proceed. The Judge rejected the application in a reasoned ruling. He concluded that, “The prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters, generally speaking, within the province of the jury and where, on one possible view of the facts, there is evidence on which the jury could properly come to the conclusion that the defendant is guilty.” He went on to say, “It is perfectly possible, in my judgment, for a jury to pick their way through the different recollections and accounts that each of these three people have given, but if, for example, they were to come to the conclusion that they could be sure about [E’s] evidence, as the young victim of what befell him, then, in my judgment, which they would be perfectly entitled to do and reject the other witnesses, they would be perfectly entitled to come to the conclusion that he was telling the truth about what he said [the appellant] did to him”.[30]Ms Rowley accepted, as is clearly the case, that there are real differences between the accounts of E, T and D. The question that we have to consider is whether they are of such fundamental significance that this is one of the rare cases in which the Judge ought to have withdrawn the case from the Jury because they could not on the basis of such evidence properly conclude that the prosecution had proved the charges to the requisite standard.[31]The inconsistencies between the different accounts include these: i) E’s evidence was that oral sex took place when the appellant was lying down on their coats and E was kneeling over him. The single exception, he said, was on an occasion when the two of them were alone and when they were standing. T, on the other hand, said that whenever he was present both E and the appellant were standing. D’s evidence was that on the occasion when he was present, the oral sex took place when the appellant was sitting down. ii) E described incidents lasting over 20 minutes, in which he was made to have oral sex repeatedly. The other witnesses said that it was over in no more than 30 seconds. iii) The evidence about the presence of T was inconsistent. In his July interview E said that both D and T were present “most times”. At trial he said that there were two occasions when both T and D were there. The evidence of T and D was that D was present on only one occasion. iv) D’s insistence that the last incident was on a Sunday, T’s day for pocket-money, was inconsistent with T’s evidence that it was when the boys were off school during a school holiday, probably a half-term holiday, and inconsistent with T’s reference to (Monday) 15 November 2004. v) D reported the last incident to Mrs B as taking place down Pottery Lane. There is perhaps some uncertainly about where D was placing the incident in his interview in February 2005, but T, when interviewed on 23 December 2004, said that the incident with D present was in Donkey Woods. vi) D’s evidence was that the last incident ended when he, E and T went off together, whereas T said that it ended when the appellant went off leaving the other three to play football. vii) D claimed to have intervened physically to protect E. The other witnesses’ evidence was that he and D protested only orally. viii) E’s account in interview in July about a knife was inconsistent with the evidence of T and D. His evidence at trial was also apparently inconsistent with what he had told the police in that he said that he was threatened with a knife only on one or more occasions when T and D were not there. ix) E’s evidence at trial about being hit with a stick was unsupported by the other boys and inconsistent with what he had told the police. In December 2004 E said that the appellant “always” hit him, but when cross-examined he said that he had been hit on only one occasion. x) D’s evidence about a magazine and masturbation is inconsistent with the account of the other boys.[32]These are considerations which the jury would properly to weight and no doubt they did so. However, it is not unusual for witnesses to have major differences in their recollection of events which they have seen or experienced. The Judge had seen the three boys give their evidence and heard it from their own mouths. He was in a much better position than we are to decide whether the inconsistencies between the differing accounts were such that the charges could not safely be considered by the jury. He was entitled to conclude that the jury could properly accept the evidence of E and reject the evidence of the other boys where it conflicted with it, and that, despite his age, the jury should consider E’s reliability as a witness and whether they were sure that his account was essentially true. After all, there was undeniably evidence of the allegations that were essential to the charges, that is to say that the appellant compelled E to have oral sex when E and the appellant were alone, on at least two occasions when T was also present, and on one further occasion when all four boys were present. There was no scope for the witnesses, and in particular E, to be in error about these essential allegations. The question was whether they were a deliberate and dishonest fabrication, there was no basic suggestion upon which they were to be considered to be such, and that was pre-eminently a matter for the jury to decide. We therefore reject the first ground of appeal.[33]We come to the question whether the trial process was unfair to the appellant and whether he was able properly to participate in it and to explain his case. After the decisions of the European Court of Human Rights in T v United Kingdom 24724/94 [1999] ECHR 170and in V v United Kingdom 24888/94 [1999] ECHR 171, Lord Bingham LCJ issued a Practice Direction [2000] 1 Cr App R 483 which was directed to ensuring that young defendants in the Crown Court, that is to say defendants aged under 18 years, have a fair trial in which they are able to participate effectively and which is compliant with article 6 of the European Convention on Human Rights and Fundamental Freedoms. The overriding principle of the Practice Direction, set out at paragraph 3, provides that, “….The trial process should not itself expose the young defendant to avoidable intimidation, humiliation or distress. All possible steps should be taken to assist the young defendant to understand and participate in the proceedings. The ordinary trial process should so far as necessary be adapted to meet those ends. Regard should be had to the welfare of the young defendant as required by section 44 of the Children and Young Persons Act 1933”.[34]The Practice Direction contemplates that consideration should be given at the plea and case management hearing to steps designed to advance the overriding objective. It seems that this may have been overlooked at the pleas and case management hearing in this case. This should not have happened: the procedure in the Practice Direction is required in order to ensure that the trial complies with the Convention. It would be regrettable if it was not observed in the case of this particularly young defendant (who was only 13 years when the Pleas and Case Management Hearing was held) who was facing particularly sensitive charges.[35]It is also unclear to us how fully the matters covered by the Practice Direction were considered fully at the start of the trial itself. Ms Rowley submitted to us that it was for the appellant to raise any concerns about the procedure that was being adopted and that he cannot now complain about matters that were not raised. We cannot accept that submission. The Practice Direction is, as we have emphasised, designed to ensure compliance with the Convention. The Court should observe it whether or not the representatives of the young defendant raise concerns about the trial process and it is the duty of the prosecution counsel as well as the defendant’s counsel to assist the court to do so.[36]The following paragraphs of the Practice Direction are particularly relevant in this case: i) Paragraph 9 provides that “The trial should, if practicable, be held in a courtroom in which all the participants are on the same or almost the same level”. ii) Paragraph 10 provides that “A young defendant should normally, if he wishes, be free to sit with members of his family or others in a like relationship and in a place which permits easy, informal communication with his legal representatives and others with whom he wants or needs communication”. iii) Paragraph 11 provides that the court should remind the representatives of the young defendant that they should explain each step of the trial and ensure, as far as possible, that the trial is conducted in language which the young defendant can understand. iv) Paragraph 12 is concerned with the timetable of the trial, which should take account of a young defendant’s inability to concentrate for long periods: frequent and regular breaks are often appropriate. v) Paragraph 13 provides that robes and wigs should not be worn unless the young defendant asks that they should or the court orders that they should; and that those responsible for the security of the young defendant should not be in uniform. There should be no recognisable police presence save for good reason. vi) Paragraph 14 states that the court should be prepared to restrict attendance at the trial to some of those with an immediate and direct interest in its outcome.[37]The trial took place over six days in court 1 in the Cardiff Crown Court, a large, formal, impressive and wooden-panelled court room in which the acoustics, we are told by counsel, are poor and in which the judge and jury sit raised to look down upon the court. The witness box on one side of the court is a long distance from the jurors on the opposite side. There is a large public gallery. It is a busy court and during the hearing court staff and others came in and out of the room. The appellant sat during the trial not in the dock but in the well of the court with his mother and with his counsel. Counsel were unsure whether they and the Judge wore robes and wigs at any stage of the trial: certainly they were removed when the young witnesses gave their evidence, and Mr Jeary accepted that, if they were worn at other times, that was done at the request of the appellant.[38]The question that we have to consider is whether the appellant, who had had his fourteenth birthday only in the fortnight before the trial started, had a fair trial in which he was effectively able to participate. We do so bearing in mind that, although this information was not made available during the trial, the author of a pre-sentence report prepared before the appellant was sentenced, assessed him as being “at the lower level of maturity than his chronological age (sic). Also he is limited in his responses when faced with difficult situations. During interview, [the appellant] presented himself as a shy, pleasant young person with low self-esteem and low self confidence”. We also bear in mind that the judge in his sentencing remarks commented upon the appellant’s “total indifference” in the reaction to the verdicts and said that he found this disturbing. Although this observation appears to have been made by way of criticism of the appellant, it is also of some relevance in this context.[39]E, T and D gave evidence, as would be expected given their age, by having videos of their pre-recorded interviews played to the jury, and then they were asked further questions by way of further examination, cross-examination and re-examination over a video-link. Mr Jeary recognised that this was the proper procedure: it was in accordance with Youth Justice and Criminal Evidence Act, 1999. He justifiably pointed out, however, the contrast between how the young witnesses were protected from the formidable atmosphere of the courtroom and the position of the appellant during the trial. The House of Lords has determined that it does not contravene article 6 of the Convention for young witnesses to give evidence in this way, even where the defendant is of a similar age: see R (D) v Camberwell Green Youth Court, [2005] 1 WLR 393. However, the difference in their treatment that Mr Jeary observed does underline that the court must adapt its procedures to ensure that a young defendant is not wrongly prejudiced by it and ensure that he has a fair trial in which he can effectively participate: see [2005] 1 WLR 393 at para 17 per Lord Rodger and para 57 per Baroness Hale.[40]We have been told that there were frequent breaks in the course of the proceedings. It seems that this was, at least partly, because of the age of the main witnesses, but whatever the reason we understand that they were sufficiently frequent for the appellant to be able to concentrate properly upon the proceedings and to be given any necessary explanations by those representing his interests.[41]The requirements of paragraphs 10 and 12 of the Practice Direction were observed. So were the requirements of paragraph 13 in so far as they concern the dress of the judge and counsel and there is no complaint about any other provision of that paragraph. Nor is there any complaint that paragraph 11 was not observed. The focus of the Mr Jeary’s submission is the concerns reflected in paragraphs 9 and 14.[42]It is clear that the setting of the trial would be formidable for many defendants, and particularly for a relatively immature fourteen year old. From what we have been told, little or nothing was done to prevent persons who had no “immediate and direct interest” in the outcome of the trial from coming and going from the courtroom, and we can see that this might well have been somewhat unnerving for a defendant who did not understand why they were there. There was some discussion in the course of the hearing before us about what other courtrooms were available in the Cardiff Crown Court and whether a court other than court 1 would have been a preferable venue for the trial. We understand that there is no court which has facilities for evidence to be given by video link which does not have comparable disadvantages. Of course, such practical considerations cannot be ignored, but in the end the obligation remains to ensure that the young defendant has a fair trial in which he can properly participate. Such difficulties do not override the demands of the Convention, which does not settle for an inadequate best effort.[43]We have concluded that, despite the criticisms that Mr Jeary properly and moderately made of the trial process, they were not so grave that the appellant was prevented from effective participation in the trial or that he did not have a fair trial that complied with the Convention. The appellant was assisted throughout by counsel and his solicitor, as well as the close presence of his mother. There is no evidence that the surroundings were so overwhelming that at any stage he was unable to communicate with them as he wished, and there is no evidence of any specific disadvantage that he suffered because of these concerns. Specifically, there is no evidence and there is no suggestion that he was deterred by these complaints from giving evidence on his own behalf.[44]The third ground of appeal arises from an intervention by the Judge in the course of the cross-examination of T on the third day of the trial. Mr Jeary was asking him about his account of how the assaults took place, and invited him to confirm that both the appellant and E were standing, a point on which his evidence was inconsistent with that of his brother. At this point Mr Jeary asked T, “why are you putting your head down when you are telling us about these things?” The Judge intervened: “Maybe because he is twelve years old and he witnessed his brother, according to him, having oral sex against his will, Mr Jeary”.[45]Mr Jeary submitted that the Judge should not have intervened in this way, and that the jury might have understood that the Judge was indicating his own thoughts about the facts of the case. We can understand the Judge wishing to reassure a young witness, but in our judgment free from the immediate pressures that the Judge faced, the intervention was unfortunate. It is true that, as Ms Rowley observed, it included the words “according to him”, but we do not consider that this justified it. Nor do we consider that the criticism is answered by the observation that in his summing up the Judge told the jury not to adopt views about the facts that he might appear to express unless they agreed with him. That said, however, we are unable to accept that this intervention on the third day of a six day trial can realistically be supposed to have influenced the jury’s verdicts or gives rise to a risk that they are unsafe.[46]The fourth ground of appeal concerns the summing up. As we have said, all four charges were of rape contrary to section 1 of the Sexual Offences Act, 2003, and the ingredients of that offences are, of course,(i) intentional penetration of the vagina, anus or mouth of another person with the penis,(ii) the absence of consent of the other person, and(iii) the absence of a reasonable belief of the consent of the other person. The complaint is that the Judge effectively directed the jury that if A did penetrate E’s mouth, they need not consider whether E consented to it and need not consider whether the appellant reasonably believed that E consented to it.[47]The passage that gives rise to this complaint is the following:
“What do the prosecution have to do to prove rape in this case? The 2003 Sexual Offences Act defines rape in this way: “A person commits rape if he intentionally penetrates the vagina, the anus or mouth of another person with his penis, and that other person does not consent to the penetration and the person doing the penetrating does not reasonably believe that the other person consents. So what has to be proved in this case is this. One, that the defendant penetrated [E’s] mouth with his penis. Two, that [E] did not consent to it. Three, that the defendant did not reasonably believe [E] was consenting. You may think that the issue of consent does not arise in this case, it being the defendant’s case that it never happened at all. So you may think that your task can be simplified by asking yourself, when you consider the counts, the following questions. Count one. Are we sure that on at least one occasion when [T] was present, that the defendant put his penis in [E’s] mouth? If the answer is yes, the defendant would be guilty. If the answer is no, he would be not guilty. Count two. Are we sure that on a second occasion when [T] was present, the defendant put his penis into [E’s] mouth. If the answer is yes, the defendant would be guilty. If the answer is no, he would be not guilty. As to count three, are we sure that on at least one occasion when only he [the appellant] and [E] were present that [the appellant] put his penis into [E’s] mouth. If the answer is yes, the defendant would be guilty. If the answer is no, he would be not guilty. As to count four, are we sure that on the occasion when both T and D were present, that the defendant put his penis into [E’s] mouth. If the answer to that question is yes, the defendant would be guilty. If the answer is no, he would be not guilty.”
[48]The appellant’s case has always been that the allegations of oral penetration were simply untrue. Mr Jeary acknowledged that this was the sole argument that he advanced in his address to the jury, and he did not address them on the basis that, even if they were sure that there had been oral penetration, the prosecution had not proved the absence of consent or that they had not proved that the appellant did not reasonably believe that there was consent. However, the Judge did not, we are told, discuss this aspect of his summing up with counsel before he delivered it. Mr Jeary tells us, and we of course accept, that he had assumed that the jury would be directed that the prosecution had to prove, in the case of each charge, the three elements of the offence to which we have referred.[49]Mr Jeary cited three authorities in support of his submission that the Judge should not have withdrawn from the jury the questions whether E might have consented to oral penetration and whether the appellant might reasonably have believed that E consented to oral penetration: James, [1997] CLR 598, Ptohopoulos, (1968) Cr App R 47 and Wren, [1993] CLR 952. In James the Court of Appeal allowed an appeal when the judge failed to direct the jury at all as to the essential ingredients of robbery. In Ptohopoulos, the judge virtually withdrew from the jury the central issue whether the appellant was habitually in the company of a prostitute within the meaning of section 30(2) of the Sexual Offences Act, 1956. Wren was a case of indecent assault in which the central issue was whether the complainant had consented. The Court of Appeal allowed the appeal on the basis that it was also necessary for the jury to consider whether the appellant might honestly have believed that the complainant was consenting because that was an issue that arose from the facts. The authorities do not support Mr Jeary’s submissions, so as to require a judge who has properly directed the jury on the ingredients of the offence, to go on to emphasise issues that do not arise on the evidence.[50]Mr Jeary submitted that it is not fanciful to suppose that in this case the jury might have concluded that oral penetration took place, but that it was with E’s consent or when the appellant reasonably believed that E consented. He suggested that the jury might have been sure that the account of oral penetration could not have been a figment of the imagination of E and the other boys and therefore that oral penetration took place, but that that reasoning would not properly take them to the conclusion that the appellant had committed rape contrary to section 1 of the 2003 Act. He reminded us of the evidence of D that E was laughing as he watched the appellant masturbate and suggested that the jury might have thought that, if this happened on the last occasion, E had not earlier been forced to suck the appellant’s penis against his will or that the appellant could have believed that he was willing to do so again.[51]We do not consider that on a fair reading of the summing up, the Judge can properly be said to have withdrawn from the jury the question of consent or the question whether the appellant might reasonably have believed that E consented. It is certainly the case that the Judge focused the jury’s attention, in the case of each count, upon the question whether penetration had taken place. While we have some sympathy with the Judge’s natural wish to identify for the jury the central issue between the parties, it seems to us that it would have been better had he been less emphatic. Nevertheless, the Judge did not direct the jury to confine themselves to the single question on each charge. The passage that Mr Jeary criticised was introduced by a proper direction as to the three ingredients of the offence and the suggestion that the jury might think that they could simplify their task by considering the four questions that he posed. He left it to the jury to decide whether they could properly simplify their task in this way, and we cannot believe, reading the summing up as a whole, that the jury would not have appreciated that they should only do so if they were sure that E did not consent to oral penetration and that the appellant did not reasonably believe that he had consented.[52]We come to the last ground of appeal, which arises from the Judge’s decision not to issue a witness summons to secure the attendance of E’s former social worker. The social services had had some involvement with E and his family, and before the trial they produced their files for the court to consider what should be disclosed to the appellant and what should be protected by public interest immunity. The disclosed documents included a note that read, “He [E] appears to have dismissed the alleged sexual incident from his mind and denies that it happened”. We are told by Ms Rowley that this was made on 8 February 2005 by a social worker called Mr Terry Davies, who was then allocated to E. He had been present at the police station, listening in the next room, when E and T were interviewed on 23 December 2004. When Mr Jeary cross-examined E, he asked him whether he had denied the allegations of sexual assault to a social worker and E said that he had not done so. There is no dispute that those questions of E were sufficient for proof of a previous inconsistent statement to be adduced under section 4 of the Criminal Procedure Act, 1865 if there were such evidence.[53]Accordingly, on 1 December 2005, on the fourth day of the trial, the appellant applied that a witness summons be issued for the attendance of Mr Davies, with a view to a statement being taken from him and his evidence being called if it was to the effect that E had told the social services that he had not been assaulted. Ms Rowley told the Judge, and indeed she told us, that the officer in the case had spoken to Mr Davies about the note, and he had said that it did not record any denial by E to the social workers of the allegations against the appellant. The Judge refused the application. He said, “It is clear to me, from all the documentation that I have been through and revisited, that there is nothing at all which indicates that the defendant in this case ever denied, save on the occasion that his mother first asked him about it, that an incident or incidents had taken place at the hands of the defendant in this case”.[54]Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 provides that the Crown Court shall issue a witness summons “if it is satisfied that(a) a person is likely to be able to give evidence likely to be material evidence, or produce a document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court, and(b) it is in the interests of justice to issue a summons under this section to secure the attendance of that person to give evidence or to produce the document or thing”. The Judge declined to issue a witness summons because, we understand, he was not satisfied about the first condition. We have seen the document containing the note in question, and, on the face of it, it undoubtedly could reflect E’s initial response when D spoke to his mother or his first police interview which Mr Davies had heard. We, unlike the trial Judge, have not seen the rest of the social services files, but we see no reason to doubt the Judge’s assessment that Mr Davies was not likely to give material evidence, and therefore that a witness summons should not be issued.[55]Having heard argument on the appeal against sentence, we dismissed it and said that we would give our reasons in this judgment. The appellant was sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act, 2000 to a term of 18 months’ detention. The Judge also made an order that the appellant be disqualified from working with children, which he expressed to be “for life”. We should explain that it is perhaps misleading to refer to the order being “for life”. An order disqualifying an individual working with children made under section 29, or indeed under section 28, of the Criminal Justice and Court Services Act, 2000 is for an indefinite period. Five years after the day that he is released from custody, the appellant may seek leave under section 33 of that Act to apply to the relevant Tribunal (that is to say, the Tribunal established under section 9 of Protection of Children Act 1999) and if the Tribunal is satisfied upon such an application being made that the appellant is suitable to work with children, it must direct that the disqualification order is to cease to have effect.[56]Under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 the court may sentence a person under the age of 18 years to be detained “If the court is of the opinion that neither a community sentence nor a detention and training order is suitable”. Because of the appellant’s age, the court could not make a detention and training order “unless it is of the opinion that he is a persistent offender” (see section 100 of the Powers of Criminal Courts (Sentencing) Act, 2000), and the Judge considered that the appellant was not a persistent offender. But this does not prevent him from imposing a sentence under s.91 upon a person under the age of 15 who is not a “persistent offender”: R v JR and GD, [2001] 1 Cr App Rep (S) 377.[57]The Judge described the appellant as a “sexual bully, using little [E] as a means by which to provide you with some adolescent sexual gratification”. He considered that the offences required immediate custody and that any other sentence would be “wholly inappropriate”. He took account of the appellant’s age in deciding upon the length of the sentence.[58]Mr Jeary has reminded us that the appellant had no previous convictions and that he committed no further offences between these offences and his eventual arrest and trial. We have before us, as did the Judge, the pre-sentence report to which we have already referred and a number of references that speak well of the appellant, including one from his school that he attended which described the appellant’s behaviour in class and around the school as having always been very good. We also have a report from the secure unit where the appellant is now placed which is wholly favourable, although it explains that the application for appeal against conviction had prevented work relating to his offending behaviour.[59]Mr Jeary submitted that, while the nature of the offences might have made custody inevitable, the appellant has now been punished and now a community sentence would be more constructive. We are unable to conclude that it would be right to adopt this course. These were most unpleasant offences against a very young child. The Judge found that they were accompanied by threats to the other boys to prevent them stopping the assault on E in their presence. Perhaps more importantly, this is not a case of an isolated offence but a series of assaults. We are unable to accept that the sentence of the judge under section 91 was excessive or should be reduced or set aside on appeal.[60]As for the order disqualifying the appellant from working with children, the court had to make such an order if “satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child”. The judge concluded that he was so satisfied, and having heard the evidence he was better able than we are to form a view about this. There is no proper reason for us to set it aside. However, he was incorrect to describe it as an order made for life.[61]For these reasons, the appeal against conviction for which we gave leave is dismissed. We have explained the reasons for our decision on the appeal against sentence.