Fulton, R v Kenneth [2007] EWCA Crim 2787

Case No 200703341 D3[2007] EWCA Crim 2787
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 8th October 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
Vice President of the Court of Appeal Criminal Division
MR JUSTICE AIKENS
MR JUSTICE GRIGSON
Between
R E G I N ACrownv
Between
KENNETH FULTON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M D Barlow appeared for AppellantMr A J Robertson QC and Mr I Mullarkey appeared for Crown
JUDGMENT

LORD JUSTICE LATHAM:

On

[1]3rd March in the Crown Court at Teeside this appellant was convicted by a majority of 10:2 of five counts of indecent assault on a female and was sentenced to 3 years' imprisonment concurrent on each count. He was acquitted of one count in that same indictment. The original application was for leave to appeal against his conviction and that was ultimately refused by the full court. The matter has, however, been reviewed by the Criminal Cases Review Commission and the matter comes back to this court on a reference by the Commission.[2]In order to understand firstly what the background is and the reason for the reference, it is necessary to set out very shortly the facts. The victim of the alleged offences was 10 years old at the time of trial and 7 and 8 at the time that she experienced the matters which resulted in the appellant's conviction. The allegations against the appellant were of digital penetration, the girl being a virgin.[3]Her evidence was supported, it was said, by some evidence from her grandmother and from her mother but, more significantly, the evidence of two doctors. That evidence was described by

the judge in his summing up to the jury in the following terms:

"If you accept the evidence of Drs Gough and Askenasy, it is extraordinary powerful support for the contention that this little girl was abused by somebody in the manner she describes. But nobody suggests that if they are wrong it in any way shows there was no abuse."
The appellant's account is and always was that the account given by the girl was unfortunately an account which was made up by her at the instigation of her mother.[4]The reference is based upon four particular matters which it is said undermine the safety of that conviction. It is only necessary to refer to one which is critical. There is now clear medical evidence to cast doubt on the views expressed by the two doctors at the trial referred to by the judge. Bearing in mind the terms in which the judge put that evidence to the jury, the fact that there is such doubt cast on their evidence means that this conviction cannot be safe and is accordingly quashed.[5]The situation is that although at one stage the prosecution were minded to ask for a retrial, the position has now been reached which makes it plain that a retrial will be inappropriate. It is not therefore pursued, and accordingly the only order that we need make today is that the conviction of this appellant is quashed.[6]MR BARLOW: My Lord, two further matters if I may. Firstly, can I make an application for the appellant's costs order to cover the cost of his travel today to come to court to hear the quashing of his convictions. Also I understand that at some stage during these proceedings he paid private money in relation to assistance. Can that be quantified by those instructing me and put for taxation together with his bill for travel?

LORD JUSTICE LATHAM: Certainly.

[8]MR BARLOW: The second matter is this. The man I represent has asked me today to publicly express his gratitude to the Commission. Without them and without their assistance in looking at this matter twice, this day would not have come for him. As my Lord has indicated, he has adamantly denied throughout these proceedings being guilty of these offences. He was a man of previous good character and I echo the thanks to the Commission for the work that they have done on his behalf.

LORD JUSTICE LATHAM: Certainly. I am sure his thanks will be conveyed. You have made them public. It is another example of the way in which they provide the most valuable assistance to this court in ensuring that where there has been a real question about the conviction, the matter is dealt with fully and properly with the assistance of, in this case, expert reports which were asked for by the Commission and which have assisted your client.

[10]MR BARLOW: Thank you, my Lord.

Cited in 1 later judgment