A, R v [2008] EWCA Crim 2908

[2008] EWCA Crim 2908Case No 2008/5048/D5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT EXETER
Mr Justice Owen
T20047007
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/12/2008
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMRS JUSTICE SWIFTMR JUSTICE CRANSTON
Between
RCrownADefendant
Paul Dunkels QC and Mr Simon Laws for ProsecutionMiss Sarah Munro QC and Mr Selwyn Shapiro for RespondentHearing Hearing dates: 5 th November 2008
JudgmentThe Lord Chief Justice of England and Wales:
[1]On 1st December 2004, in the Crown Court at Exeter before Owen J, A was acquitted of two counts of indecent assault and one count of rape. They were alleged to have taken place in 1991 when the complainant, SN, was 15 years old. On 5th November we heard an application under the Criminal Justice Act 2003 (the 2003 Act) by the Crown Prosecution Service, Devon and Cornwall, to quash the acquittal and order that A should be re-tried for rape. At the end of the hearing the applications were allowed. These are our reasons. The 2004 acquittals[2]At the 2004 trial there were three relevant counts on the indictment, two of indecent assault and one of rape, the alleged offences occurring some thirteen years previously, in 1991. They involved one complainant, SN. The respondent denied the allegations in an interview with the police in January 2004, in his defence statement before the trial, and at the trial itself. He continues to deny them.[3]At the trial SN’s account was that she met the respondent in 1990, when she was 15 years old. His company, Marlin Leisure, was based in Devon. It provided outward-bound type activities, and he offered a residential camp for her church youth group. She started to help him out with groups of children at the weekends. During the spring of 1991 the respondent began to behave with inappropriate familiarity. In May, after a sailing course, he had a shower with SN and touched her all over her body and had her touch his penis. At the end of May, at a weekend camp, he asked her to massage him, and then, to alleviate sunburn, he massaged her and in due course there was digital penetration of her vagina. He had then placed and kept her hand on his penis until he ejaculated.[4]As to the rape, in July 1991, she helped set up a summer camp near Swanage in Dorset. The respondent, Edward Bassett, a partner in Marlin Leisure, two younger people and Kate, who was the camp cook and an employee, were present. In the evening the group went to a public house. The respondent bought her two pints of cider. He too was drinking quite a lot. They returned to the camp at about 11pm. She was tired and light-headed, but not drunk. Bassett asked her if she was alright. In response to his inquiry about her sleeping arrangements, she said that she would sleep in the compartment of her tent. This had a single compartment on one side, where Kate slept on the night in question, and a double compartment next-door, where she and the respondent slept. The two compartments were separated by a cloth partition. She said that she prepared for bed, the respondent kissed her, then took her hand to touch his penis. He had sexual intercourse with her without her consent. While this was happening Kate was on the other side of the partition.[5]The following morning she was collected by Stephen Masters, another partner in Marlin Leisure. She said she told him and his wife what the defendant had done. Masters passed the complaint on to Bassett. Later in the week she phoned the respondent. He told her that she would not be pregnant and to forget about it. She said that as he moved away that weekend, leaving the business and the camp which had been set up for the summer she did not see him again. About three weeks later she told her mother. The family decided not to tell the police as they did not want her to have to experience a criminal trial at her age. Her mother confirmed this in evidence.[6]Subsequent to July 1991, immediately following SN’s complaint to him of sexual abuse by the respondent, Masters himself abused her. In due course, in May 2005, after the respondent’s trial, Masters pleaded guilty to three counts of indecent assault on SN. He was sentenced to fifteen months’ imprisonment.[7]Much time was spent in cross-examination addressing the possible significance of the fact that by the date of trial SN had received some twenty-two counselling sessions both when she lived in Canada and on her return to the United Kingdom. On any view, as we now know, but the jury did not, given Masters’ guilty plea, some counselling was entirely appropriate. She was questioned on the basis that she had told both counsellors that she had been abused by her 8-year-old neighbour when she was 5. Her response was that when she was 7 she had been raped by an 11-year-old neighbour and her counsellor must have been mistaken when she recorded different ages for her and the boy when this occurred. It was put to her that she had given the impression to her counsellor that her father had touched her inappropriately but she said that the counsellor had exaggerated what she had said. As regards Masters, it was put to her that the counsellor had recorded in her notes, “inappropriate touching which led to full sex”. She said that this was not true, and that the counsellor, who did not make her notes at the same time, must have made a mistake. For what it is worth, SN agreed that whilst having counselling in Canada she had read a number of books, including at least one about sexual abuse. This line of cross examination may well have served to undermine SN’s credibility, although strictly speaking, as we understand it, the only actual evidence on these topics came from her.[8]In further cross-examination it was put to SN that she had not mentioned Kate’s presence in the tent in any of her four statements to the police, but she was adamant that she had told the police. Later the police officer who took the statement said that if he had been told about this he would have noted and explored it. In reality this was a non-issue. Unless it was seriously to be contended that the omission from the statement in 2004 was deliberate, and that SN was intentionally depriving the police of potential evidence from 1991 which might have supported the respondent, in reality this was not a serious issue. SN was asked but said she did not know that the defendant “fancied” Kate. When asked if she herself had had a crush on him, SN said she was only a normal teenager, but then she added, “I looked up to him; he was a good man”. It was also put to her that she had a medical examination for sports just after the camp, when a urine sample was taken. At that time she did not refer to any fear that she might be pregnant.[9]Mr Bassett said that he had heard from Masters, he thought early in the week, of SN’s complaint that the respondent had raped her. Bassett had a conversation with her later that week and she was very upset. He spoke to the respondent about this on the telephone, but he strongly denied any impropriety. Bassett said that the best thing would be for the respondent to return to Devon so that they could “face it together”. The respondent’s reply was that it would not be right for him to do so and he did not. From Dorset the respondent went to Surrey, where his parents lived. Bassett met him about 2 weeks later when he strongly denied the whole event and sought Bassett’s support. Bassett told him that if the accusation was false he should return and deal with it. The partnership was subsequently dissolved.[10]In cross-examination Bassett confirmed that there were no weekend camps in Dorset in the summer in question. He was never at the camp mentioned by SN in July 1991, and thus could not have asked her if she was alright and where she was sleeping.[11]The respondent’s evidence, which reflected what he had said in interview, was that he had never had anything to do with SN in a sexual sense. By the end of May 1991 he and Kate were a couple. He had met her first on Boxing Day 1990 and offered her a job in the summer when she finished her degree. Indeed he married Kate in October 1993 and they had a son, aged 5. The couple separated in late 2002, before the allegations came to the attention of the police. There were no weekend camps in Dorset at that time, because it was simply too far away.[12]As regards July 1991, the respondent said that SN came to help set up the camp. It was arranged that she would return home on the Sunday, with Masters as, indeed, transpired. The respondent shared the tent in Swanage with Kate, each having a compartment. He did not recall the trip to the pub, but it would not surprise him if it had happened. After returning they would have piled into the kitchen tent and had coffee. He was aware of Kate going to bed in her compartment. He remembered going to bed in his compartment, when, uninvited, SN tried to get into it. He was pretty sure Kate was awake. It was something like 11 o’clock. SN left, and he assumed that she had got the message and moved to another tent, but when he awoke at about 7-7.30 a.m. the following morning, he found her asleep in his compartment. He had not had sexual intercourse with her that night or that morning. He first became aware of an allegation by her on Monday or Tuesday a week later when he received a letter from her mother, and he was shocked. He showed the letter to all his staff. On the Tuesday and Wednesday letters arrived from Bassett and Masters resigning from their partnership with him. His sudden departure from Devon was caused by a business problem, not fear of SN’s complaint. He completed the series of camps which were to be held that summer but decided to move on. He did not remember any telephone call from Bassett, or any meeting.[13]It was an important feature of his evidence that towards its end the respondent said that since 1991 he had worked with thousands of young people and had learnt much about how they think and how to protect himself. The implication that there had never been any complaint of impropriety against him was clear. That was untrue. By 1991 he had been investigated by the police in relation to indecent assaults against children at the school (in effect a residential care home for children) where he was employed in the late 1980s, and although the charges against him were not pursued, he left the school and the area. This information seems to have been lost.[14]The judge summed the case up to the jury. Plainly there was a clear and direct conflict of evidence. Some difficulties with SN’s evidence at trial were apparent. She was effectively unsupported. The jury did not know that she had undoubtedly been the subject of sexual abuse. The respondent put himself forward as a man of positive good character. When addressing the potential significance of the respondent’s good character, Owen J told the jury that in the context of the possible propensity of the respondent to commit the offences, the jury should bear in mind what we now know was his incomplete evidence that he had worked with thousands of young people, in effect inviting them to adopt the implication of what the respondent had said. Unsurprisingly on the basis of the evidence before the jury, the respondent was acquitted. New Evidence[15]After the trial on seeing an article about it in a local newspaper, the respondent’s first wife contacted the police in December 2004. She told them that long before the trial the respondent had been arrested for indecent assaults on three children when working at a school. An extensive police investigation followed and in due course the respondent was arrested and interviewed in June 2007. He was later re-arrested following further complaints of sexual misconduct.[16]The upshot of the police investigation was that a 17 count indictment was preferred against the respondent, and his trial on these counts was due to begin shortly after the hearing of the present application. Seven different complainants, some boys, and some girls, are identified in the particulars. The allegations encompass offences of indecent assault on young males and females, buggery and indecency with a child. We understand that the prosecution intends to call other witnesses at trial who will give evidence of similar behaviour which will provide further supporting evidence.[17]The evidence in support of the indictment demonstrates that in reality SN’s allegations formed part of a series of complaints which, in her case, occurred approximately half way through the lengthy history of the respondent’s alleged misconduct with children, as he moved around the country. Thus, the first group of allegations occurred when he was working in Lewes in Sussex, and another of the complainants made her allegations in the context of the respondent’s connection with Marlin Leisure in Devon, all before the offences against SN. The fifth complainant alleged misconduct at a school in Dorking in Surrey after the offences against SN, and the sixth and seventh complainants were allegedly indecently assaulted later still at a different school in Surrey.[18]In summary these offences took place when the respondent was a teacher of adventure activities at three schools and a trainer of outdoor pursuits and partner of Marlin Leisure. Two of the schools were in Surrey, the third in Sussex. Marlin Leisure, as we have indicated, was based in Devon, but also operated in Dorset. Three of the complainants were at the first school, where the respondent was employed as a member of staff. The alleged offences there occurred between 1985 and 1988. Another complainant was alleged to have been abused in about 1988 when she was not yet nine: by then the respondent was associated with Marlin Leisure. The fifth complainant was a thirteen year old boy allegedly abused while on outward bound activity with a second school, and the remaining complainants were girls who were allegedly abused on camping trips organised by a third school. These two sets of complaints, unassociated with each other, occurred well after 1991.[19]The evidence of these complainants, and the supporting evidence available to the Crown at the forthcoming trial, is admissible to support SN’s complaint. It would significantly undermine the contention at trial that the respondent was a man against whom no complaints had been made, but also and importantly, some of the details of the complaint bear significant similarities to SN’s complaints and, if true, appear to establish a propensity by the respondent which is highly relevant to them. For example, SN’s complaint was that the first occasion of any sexual activity by the respondent occurred when he showered with her. He engaged in similar activity with a boy some 3 or 4 years earlier. The indecent behaviour of which she complained occurred on a camping trip, as it did with five of the new complainants. She was abused by the respondent in his tent: so were three of the new complainants. He used “massage” as a pretext for touching her, and exploring her resistance, then his conduct escalated to include direct sexual touching. This happened with six of the new complainants. In the case of one of them he used sun cream on the boy as he had with SN some 3 years earlier, using the excuse that this would prevent sunburn. After massaging SN, his sexual activity with her became more serious, a pattern which was apparent in the case of three of the new complainants. In short, the evidence of the seven complaints about the respondent’s behaviour towards them coincides to a significant degree with her complaint against him.[20]When the investigation into the latest complaints was in train, in June 2007, the respondent made a number of apparent admissions. A relation through marriage was told by the respondent that he had problems with children. He was talking of “urges” and “needs”. In early October the respondent wrote to the officer in the case, saying that he knew he must be charged and that he accepted that a sentence would be forthcoming. The woman he was about to marry knew that their life together might be cut short for a number of years. In the course of the letter the respondent said, in a reference to the 2004 trial:
“I know you’ll have your views on 2004, I can only say I never raped SN, I know you will probably never believe me but truly I didn’t. Why she said what she did I will never know. She mentioned in her cross-examination about going to Canada to a counselling centre. My mother went there too many years earlier and said that by the end of the course, every woman on it came away crying believing they have been abused/raped too – it was all suggestive therapy apparently.”
[21]During the following month the respondent handed the police a letter of apology, to be sent to, among others, the complainants in the forthcoming trial. The respondent wrote that he carried the guilt and shame over his behaviour which had now been uncovered by diligent police work. He had crossed the threshold of acceptable behaviour in a few cases, and he was remorseful and had to face the consequences. At about the same time, there was also a text message sent to the officer in the case: “[I]’m bracing myself with brandy and curry b4 admitting guilt”.[22]In her submissions on the respondent’s behalf Miss Munro QC underlined the passage from the letter in which the respondent continued to deny that he had raped SN. She also referred to what she characterised as misleading statements and inappropriate behaviour on the part of the police, which elicited the letter to the officer in the case and the apology letter, issues which will be addressed at the forthcoming trial.[23]The respondent pleaded not guilty to the seventeen counts. In summary the defence statement contends that the three complainants mentioned in counts 1-11, coming from the one school, fabricated their accounts and that there has been collusion between them. As regards the next female complainant, the respondent concedes that she and the respondent had a consensual sexual relationship but not until she turned 16. The allegations of indecent assault before that date are said to be fabricated. In respect of fifth complainant the general nature of his defence is that the allegations of this complainant have been fabricated. Regarding the last two complainants the respondent accepts that he massaged both girls in circumstances which were inappropriate, but maintains that although his behaviour was ill-judged and unwise, it stopped short of indecency.[24]The only new evidence which amounted to what was described as “direct” evidence in relation to SN’s complaint came from Kate, the respondent’s former wife, who as both the respondent and SN said at trial, was in the tent on the night of alleged rape. She confirms that she was. She adds that although there was only a thin piece of material between her and the other compartment in which the respondent and SN were sleeping, she did not hear any conversations or anything happening. At the time she thought it strange that the respondent and SN were sleeping in the same compartment. Criminal Re-trials[25]The objective of the criminal justice process is that after a fair trial there should be a true verdict. So far as humanly possible, there should be no wrongful convictions, and where they occur, or if new evidence emerges which undermines the safety of a conviction, they will be quashed and re-trials may be ordered. However until recently what has sometimes been described as the rule against “double jeopardy”, a long established principle of the common law in criminal cases, precluded the possibility of a re-trial following an acquittal, whatever the strength of evidence emerging after the trial. Following consultation and a report from the Law Commission, and notwithstanding principled objections to the proposal, Part 10 of the 2003 Act was enacted. In specified circumstances, the double jeopardy rule was abolished. We need not rehearse the arguments which were developed in opposition to this controversial legislation before it was enacted, or to canvass the Law Commission’s recommendations, and how, to some extent at any rate, the provisions of the 2003 Act go beyond them.[26]Since it arose in argument, however, we should note the background discussion of the circumstances in which the power of re-trial could be ordered. It is fair to say that the examples of new evidence discussed by the Law Commission focused on new evidence in relation to the offence itself. Prominent was the way scientific breakthroughs might generate new evidence, notably with DNA. Thus the Law Commission in its Consultation Paper No 156, Double Jeopardy, gave two examples of what were seen as the strongest possible cases for reopening an acquittal: DNA advances; and a hit-woman who comes forward after the acquittal of those who hired her (para. 26). When the Law Commission reported in 2001, Double Jeopardy and Prosecution Appeals, Law Comm No 267, it referred to cases “where new evidence of the defendant’s guilt has become available” (para. 4.1). It gave as examples a full and uncontestable confession, evidence of a scientific nature, the weapon with the defendant’s fingerprints being found in his home or garden, and CCTV footage (paras. 4.63-4.64).[27]Part 10 of the 2003 Act sets out the relevant statutory framework providing for the re-trial of a defendant who has been acquitted at trial. The process is available for serious offences, as specified in the legislation, which in the main carry a possible sentence of life imprisonment. These are “qualifying offences” and are listed in Schedule 5 to the Act. Rape is one of them, but indecent assault is not.[28]Section 76 of the 2003 Act requires a prosecutor to apply to the Court of Appeal for the relevant orders. The application requires the written consent of the Director of Public Prosecutions, a non-delegable responsibility. Before giving consent he must be satisfied that the evidence appears to meet the requirements of section 78 and that a re-trial is in the public interest. He has published detailed guidance about the exercise of his powers under section 76. In relation to public interest the Director will grant his consent, so long as the other conditions are satisfied “unless there are public interest factors tending against an application which clearly outweigh those factors tending in favour. [The Director] acts on behalf of the public and not just in the interests of a particular individual. However, [the Director] should take into account the consequences for the victim of whether or not to make an application …” The Director has indicated that he would only proceed in cases where, as a result of new evidence, a conviction is highly probable and any acquittal by a jury at a subsequent trial would appear to be perverse. We believe that this guidance is entirely appropriate, and consistent with the relevant legislative framework, and reflects a proper appreciation of the continuing (but not absolute) importance of finality in the criminal justice process. We add, however, that the view of the Director that it is in the public interest for the application to proceed, while a pre-requisite to the application, is not conclusive of it (R v Miell [2008] 1 WLR 627). The court must form its own view whether the statutory requirements are met, independently of him.[29]Section 77(1) of the 2003 Act provides:
“On an application under section 76 (1), the Court of Appeal – (a) if satisfied that the requirements of section 78 and 79 are met must make the order applied for; (b) otherwise, must dismiss the application.”
This is striking language. Provided the substantial statutory requirements are established no broad or over-arching discretion remains in the court to refuse the application. The consequences which follow when the statutory conditions are met are prescribed. (a) if satisfied that the requirements of section 78 and 79 are met must make the order applied for; (b) otherwise, must dismiss the application.”[30]Section 78 identifies the first statutory requirement. “(1) The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence. (2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related). (3) Evidence is compelling if –(a) it is reliable(b) it is substantial, and(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person. (4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related. (5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person. (a) it is reliable (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person. (4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related. (5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.[31]“New” for the purposes of this section is evidence not adduced in the previous proceedings. It is conceded for present purposes that the evidence of the complainants reflected in the seventeen counts of the present indictment is indeed “new”.[32]“Compelling” is also defined, and means evidence which is reliable, substantial and highly probative of the case against the acquitted person in the context of the outstanding issues, that is the issues which were in dispute in the first trial. Stated simply in the present case this was whether or not the respondent had sexually abused SN and had intercourse with her without her consent.[33]It is accepted by Miss Munro that the new evidence is compelling in the sense that, taken cumulatively, it would provide compelling evidence, both in relation to what can continue usefully to be described as similar fact evidence, and as evidence of the defendant’s propensities for the purposes of section 101(d) of the 2003 Act. It is perhaps worth noting in passing that the effect of section 78 (5) is that the admissibility of evidence in any re-trial consequent on a successful application will be decided in accordance with the rules of evidence which apply at the date of the hearing of the application rather than the rules in force at the date of the original trial. On the material before us, we are satisfied that the new evidence proposed to be adduced by the prosecution is indeed both apparently reliable and substantial. Although Miss Munro was inclined and would have been right to accept that the evidence was also highly probative, she nevertheless contended that it is not directly related to the allegation of rape of which the respondent was acquitted.[34]In essence, Miss Munro’s submission is that if there were further evidence from an individual which suggested that the defendant had admitted after the trial that he was guilty of rape, or that witnesses had emerged to confirm that they had heard or seen something at the time which directly supported the complaint of rape, such material could be described as “in relation to the qualifying offence” (s78 (1)). For convenience, this was described in argument as “direct” evidence. As the new evidence could not be so described, it fell outside the ambit of the section.[35]In support of her submission Miss Munro returned to examples given in the papers prepared by the Law Commission, which provided examples of new DNA evidence, or a confession relating directly to the offence itself. The first case under these provisions in which an acquittal was quashed by the court, (R v Dunlop [2007] 1 Cr App R 8), involved a detailed and apparently truthful confession.[36]Carried to its logical conclusion however the argument would produce a remarkable result. It is inconceivable that new and compelling but inadmissible evidence could cause or contribute to the quashing of an acquittal and an order for re-trial. Evidence which would not be admissible against the respondent at a second trial falls outwith the ambit of these provisions. Indeed section 78 (2) (b) requires not only that the evidence should be “probative” (i.e. relevant and admissible) but “highly probative” of the respondent’s guilt of the qualifying offence. The stark question therefore is not the form or type or nature of the evidence said to be new and compelling, but whether it is indeed new and compelling and highly probative of the qualifying offence of which the respondent was acquitted. None of the new evidence relied on by the Crown comes from witnesses who provide “direct” evidence that SN was raped. In our judgment the section does not require that it should. What matters is that the evidence should be admissible to prove that, in accordance with her complaint, and contrary to his evidence at trial, the respondent raped her. It would be contrary to the purpose of the legislation for new, compelling, highly probative, admissible evidence that he did so to be disregarded. As it is, if Miss Munro were right, we should end up with a new concept, that is two compartments, both containing evidence admissible in law to prove guilt if deployed at a second trial, but with evidence from one compartment excluded from consideration when addressing the question whether the acquittal should be quashed and a second trial ordered. In the context of the legislative purpose such compartmentalisation would be remarkable.[37]We reach this conclusion as a matter of principle, but we derive support for it from the statutory language. If the section had been intended to limit the new and compelling evidence to evidence which related directly to the qualifying offence, in the sense suggested by Miss Munro, we would have anticipated the use of language similar to that which is provided in the definition of bad character in part 11 of the 2003 Act, evidence “which has to do with the alleged facts of the offence” (section 98). The Law Commission examples should be seen as precisely that, as examples, not as a definitive consideration of the new and compelling evidence which under the Act can trigger a re-trial. In our view any admissible evidence in relation to the qualifying offence should be treated as relating to it for the purposes of section 78(1). We would go this far with Miss Munro: that the question whether the evidence is indeed highly probative may be more readily established when it is indeed direct, in the sense she suggested, rather than indirect. That, ultimately, requires a fact specific judgment.[38]The prosecution contend that whatever may be said about witnesses from within each group of complainants, there is not the slightest possibility of collusion or contamination as between the different groups of complainants in relation to the offences they allege, which are significantly separated by location and time, and none between any of them and SN herself. We agree, and Miss Munro did not seek to persuade us otherwise. They further rightly contend that the new evidence shows that SN’s allegation was not an isolated complaint against a man of good character who spent his adult life blamelessly working with children, but as now appears, one in a series of independent allegations forming a pattern of abuse of those in his care or for whom he was in a position of authority and trust. Even if not “direct” this provides strong supporting evidence for SN which was not available at trial, and the evidence that the respondent was guilty of the rape of SN is now significantly more powerful than it was. In our judgment if it had been available at the first trial, or if it now were to be deployed at a second trial, the high probability is that the respondent would have been or will be convicted.[39]We must now address the interests of justice, identified in section 79 as the second pre-requisite to an order. This provides:
“(1) The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77. (2) That question is to be determined having regard in particular to— (a) whether existing circumstances make a fair trial unlikely; (b) for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed; (c) whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition; (d) whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.” (a) whether existing circumstances make a fair trial unlikely; (b) for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed; (c) whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition; (d) whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.”
[40]Section 79 (2) identified four specific features to which regard must be had when the interest of justice are considered. The first two concern the fairness of any re-trial, namely the extent of adverse publicity, or the delay since the alleged offence was committed, while the other two address the need to ensure that these applications do not provide a cover for or encourage sloppy inefficient investigation and prosecution of offences. However this provision does not provide an exhaustive list of the considerations to be taken into account when the question whether the interests of justice require an order to be made is addressed. The court, after taking into account such of the matters specified in section 79(2) and any other matters which are relevant, is required to make a judgment of the interests of justice.[41]There was some discussion in argument whether, when making this judgment, the court could or might reflect any of the considerations advanced in opposition to the abolition of the double jeopardy rule, and in particular, the desirability of finality to litigation. Our conclusion is that the principle of finality in litigation does not, as a principle, provide a relevant consideration bearing on the interests of justice. Double jeopardy as a prohibition against a second trial following an acquittal was abolished by the Act. No doubt, from time to time, individual features of a specific case will give rise to matters of potential significance which could be said to reflect one or other of the general considerations advanced in argument against the abolition of the common law principle, but to the extent that these may be relevant at all, they would be fact specific. It is perhaps noteworthy that the public interest consideration is expressly vested in the Director, not the court. No doubt the public interest and the interests of justice will normally coincide, but this part of the legislative framework lends emphasis to the proposition that the double jeopardy principle cannot be resuscitated under the guise of the interests of justice.[42]In deference to Miss Munro’s argument, we recognise that it would be open to the court to reflect on the problems posed by the complainant’s evidence during the course of the earlier trial, and indeed any apparent weaknesses in the prosecution case. There may be situations where it would be contrary to the interests of justice for a re-trial to be held in the light of the serious short-comings at the first trial. It would be inappropriate to seek to lay down any specific test, although the situations we have in mind are where, to use the description in argument, the evidence at the first trial was “shot to pieces”. It is ultimately for the court to examine the interests of justice, and the interests of justice cannot be served by a re-trial of an acquitted defendant unless the prospects of conviction at the re-trial are very good. That is not resuscitating the rule against double jeopardy. It simply represents the practical application of the statutory requirements that an individual who has been acquitted should not be unduly harassed by a second set of proceedings, with all the complications and difficulty and interference with his ordinary life which this would inevitably entail, when the proposed case for the prosecution is nevertheless already irremediably flawed.[43]Two specific features relating to the interests of justice were highlighted by Miss Munro. First, she pointed out that the defendant was acquitted of two non-qualifying offences, namely the counts of indecent assaults. She suggested that this would create difficulties for the summing up if, as the Crown would suggest, the evidence which formed the basis for those 2 counts should be put before the jury as evidence of the “grooming” process to which the complainant was subjected by the defendant before, eventually, he had sexual intercourse with her without her consent. We accept the correctness of the submission that much of the new evidence to be adduced at the forthcoming trial will be directed to both similar fact and propensity in relation to these activities, rather than to full sexual intercourse. Miss Munro went on to suggest that the complications of the forthcoming trial would be too great to enable the jury fairly to consider proper challenges to the complainant’s reliability against the background of the new evidence.[44]In our judgment the acquittals of indecent assault would not render a re-trial of the rape allegation unfair. It was well established before the 2003 Act came into force that a jury considering sexual allegations against a defendant may hear evidence of allegations made by other complainants, even if the charges based on those allegations resulted in an acquittal. Following an acquittal factual evidence may be admissible, notwithstanding that to admit the evidence may suggest that he is guilty of the offence of which he was acquitted (R v Z [2002] 2 AC 483). In the circumstances of this case we do not agree that the interests of justice if otherwise served by an order for a new trial, would be undermined because of the potential forensic difficulties arising from the admission in evidence of the complainant’s evidence of grooming activities by the respondent.[45]The second feature of Miss Munro’s submission is that the complainant’s evidence at trial was so damaged that, in reality, the new evidence would seek, as we shall summarise her submission, to sustain the unsustainable. In short, this submission was that a second prosecution had no realistic prospect of success. Miss Munro pointed out what she suggested were very serious defects in the prosecution case at the first trial. She contended that SN has already been demonstrated to be wholly unreliable and the interests of justice would not be served by an order for re-trial of someone whose acquittal was neither surprising nor unjust on the basis of the evidence before the jury.[46]We disagree. We have examined all the material, including the areas of the complainant’s evidence which gave rise to the criticisms of her credibility. We have put them into the context of the new evidence. In our judgment, although there are one or two features of SN’s evidence which may remain open to criticism, her credibility was far from destroyed. In reality it is not unusual for those alleging sexual abuse – and SN was undoubtedly the victim of sexual abuse by Masters - to exhibit some fragility, particularly when the trial takes place long after the abuse has ceased. Many criticisms of her evidence, particularly in relation to location and timing, can reasonably be accounted for by reference to this delay, and there is no doubt that she did first make a complaint immediately after she said that sexual intercourse had taken place. Her evidence at trial was set against that of a man who put himself forward as someone of good character, who had worked with hundreds or thousands of children, inviting the disingenuous inference that she stood alone in making complaints against him. Conclusion[47]SN is no longer a single complainant alleging sexual abuse, but one of eight complainants whose evidence would be cross-admissible and relevant to the allegation of rape. She takes her chronological place in the middle of a series of independent groups of complainants from different locations spanning a period of some 14 years of the respondent’s working life. We acknowledge that, apart from one complaint of buggery, SN makes the most serious complaint against him, and record that, whatever the respondent may have admitted in relation to at least some of the other complaints in his letters to the police, he has continued to deny this particular allegation. However the simple reality is that the second trial of this allegation will take place in a markedly different evidential context from the first. On the basis of the large amount of material we have briefly summarised in this judgment, a conviction is highly probable and the interests of justice will best be served by quashing the acquittal and ordering a re-trial.

Cited in 5 later judgments