CM, R v [2009] EWCA Crim 158

Case No 200801478/D3[2009] EWCA Crim 158
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 20th January 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MRS JUSTICE DOBBS DBE
MR JUSTICE GRIFFITH WILLIAMS
Between
R E G I N ACrownv
Between
CM
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)
Miss P Mcatasney QC appeared for AppellantMr M Heywood appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal against conviction with leave of the single judge. The conviction were for two counts of an assault of a child under 13 who was this appellant's niece by marriage. He was convicted of two further assaults of the same child at the same time but, be it noted, acquitted of an offence of raping that child by entering her mouth with his penis. The convictions were at Birmingham Crown Court on 15th May 2007. The appellant was the complainant's uncle. He is now 39.[2]The allegations concerned opportunities which it was alleged this appellant had taken to pursue what was described as an escalating course of sexual abuse. It started, and the first two counts related to this, with an allegation that the appellant had kissed the complainant on the lips and had followed (the subject matter of count 2) by touching her breasts. The last two counts of which he was convicted concerned acts where it was alleged he had penetrated the girl's vagina with his finger.[3]Because of the relationship the families were in the habit of meeting and the complainant suggested that he had taken the opportunity to insert his finger in her vagina on two occasions before the act which finally led to the matter coming to light. This was, we should stress, an allegation which the jury found had not been proved. But the complainant had said that this appellant had taken the opportunity, when purporting to show her how to work his laptop, to persuade her to take his penis in her mouth. She said he had ejaculated.[4]Two days after this allegation, which was alleged to have happened during a barbecue at the appellant's home, when both families were together, on 17th June 2006, it was alleged that the complainant had complained to her friend at school, a girl called JB. The appellant denied these offences.[5]We have dealt with the facts which led to the conviction somewhat summarily because the main burden of the appeal advanced on this appellant's behalf by Miss Mcatasney QC is that the judge, Her Honour Judge Fisher, misdirected the jury in serious respects, so serious as to cast doubt on the safety of the verdicts.[6]We have been greatly assisted by Mr Heywood who, unlike Miss Mcatasney, did appear at the trial on behalf of the prosecution. Having heard the criticisms now advanced of the way that the judge directed the jury, he has not sought to support the convictions in this case. But nevertheless it is incumbent upon this court to form its own view about the safety of the verdicts and the propriety of the directions which the judge laid before the jury.[7]The first ground of appeal concerns the way the judge directed the jury about this appellant's character. This appellant, as we have said, was a mature man, aged at the time of these offences 37. He had two previous convictions, both of a totally different type, namely criminal damage, when he was only 20 years old. They were recorded on 26th July 1989. They were spent. The judge correctly listened to submissions as to how she should direct the jury. We have to comment that she was not wholly assisted by what she was told, although it does appear that the prosecution correctly advised her by way of submission that she should give the full good character direction. However, she failed to do so. The judge said to the jury:
"In respect of the defendant himself,... you know that he is now 37 years of age. In giving his evidence, he told you about his occupation, about his family of course and you know that in his case the only previous court appearance he had was in July of 1989 at a time when he was just 20 when, at the Litchfield Magistrates' Court, he was fined for two offences of criminal damage. That is the only matter on his record. He told you about the circumstances of those offences and how it was that he came to be charged with criminal damage. But that apart,... that is the only matter in his history. So that when you consider the evidence which he gave,... you must bear in mind that any man or any person of good character supports their credibility [sic]. You know about that one matter so long ago but bear in mind that is the only matter and therefore it is a factor, his otherwise good character, it is a factor which you should take into account when you decide whether or not you believe his evidence."
[8]It is plain that the judge had decided that the defendant should have the benefit of a good character direction. The previous offences had occurred so long ago were spent and were of a totally different nature, the defendant was accordinly to be judged as having a good character.[9]The judge had clearly, and in our view rightly, taken the view that the defendant was in no different position than he would have been had he not committed those offences so many years before. Rightly, however, she had not sought to mislead the jury about his past, nor indeed had the defendant himself, since he had disclosed those previous convictions.[10]So far she had adopted an approach which has been fully endorsed and approved by this court (see, for example, R v Nye 75 Cr App R 247). A jury is not to be misled into thinking that a man is of good character if he has convictions in the past. But nonetheless, a judge must decide whether fairness demands, because of the age of the previous offences, the fact that they are spent or that they relate to a totally different subject matter, that he is to be treated as if he had never been in trouble in the past at all.[11]What then follows? There is clear authority for the proposition set out in the Crown Court Bench Book that once a judge has decided that a defendant is to be treated as being of good character, then the judge must direct the jury as if he was indeed of good character and the Crown Court Bench Book refers in particular to R v Lloyd [2000] 2 Cr App R 355. Unfortunately, that was not the direction that the judge gave to the jury in the instant case. On a benign view she gave a direction as to one consequence of his being treated as of good character, although as Griffith Williams J pointed out in the course of argument, the final sentences we have quoted were open to misconstruction. That direction, was itself open to objection, since it hinted that the previous convictions were of some relevance adverse to the defendant. But that direction was in any event inadequate, since it did not make clear to the jury that his good character and his credibility were factors in his favour.[12]The other more striking defect in that direction was a failure to make any reference at all to the second consequence or, as it is described, the second limb of the consequences of a man being treated as of good character, namely the fact that he has never in the past, during his 37 years, exhibited any propensity to commit offences of a sexual nature at all. This appellant was entitled and should have had the benefit of that second direction. It was particularly important in this case, since allegations of a sexual nature had been made.[13]Both the limbs were important and of particular importance because this case concerned a decision that the jury had to reach as to whether the complainant, on the one hand, or the appellant on the other was telling the truth. The judge failed in a material respect to give the proper directions as guided by this court in a number of previous authorities and as identified in the Crown Office Bench Book.[14]We should make only one further comment. That is that in our view the Bench Book, correctly advises judges as to their approach by saying that in a case where the judge rules that a defendant should be treated as a man of good character, even though strictly speaking he is not, the "full direction on good character should be given to the jury". We stress that point because, whilst previous decisions of this court may not have focussed particularly on the manner in which the direction is given, we do think it necessary to point out that once a judge has decided that fairness requires the full character direction to be given to the jury, that direction should be given as a matter of law.[15]In R v Ian Stewart MacDonald (25th March 1999) Roch LJ suggested that

the judge should direct the jury:

"... that the jury may think it right to treat the defendant as a person of good character. If the jury do think that to be right and fair, then that is a matter to be taken into account in the defendant's favour when considering his value as a witness and the weight of his evidence. Moreover, it is a matter to be taken into account in his favour when considering whether he is the sort of person who is likely to have committed the offence or offences for which he is being tried."
That approach was recently adopted by the President in his judgment of 28th November 2008 in R v MW [2008] EWCA Crim 3091. We mention the point because it seems to us that once a judge has decided that a good character direction should be given, there is no room for a jury to disagree as to the propriety of using the good character of the defendant in his favour. To direct the jury that they are entitled to treat that factor as relevant "if they think that right and fair", seems to us, to leave it open to a jury to disagree with the judge. There is no basis for it to disagree once the determined that fairness demands that all convictions be ignored.[16]The defects in the direction as to character were not the only grounds upon which the appellant relied in the instant appeal. It is not necessary for us to go through all the other grounds for reasons which will become shortly apparent. But we do feel it necessary to refer to one of the other main grounds upon which the appellant relied, namely in relation to the complaint she was alleged to have made the Monday following the Saturday of the final allegation. She had, she said, made her complaint to her friend, JB, at school. They had both then gone to find a teacher. JB had given a different account of the nature of the complaint. Importantly, she recalled the complaint as relating to offences of a sexual nature, which had taken place when the complainant was far younger than the complainant herself said. Her friend thought that they had taken place when the complainant was either seven or 10, consisting of, as she put it, harassing her and touching her.[17]There was thus a discrepancy between what the complainant described and her complaint to her friend the complainant said those offences occurred closer to the time of the final offence which gave rise to the complaint. The complainant also said she had told her friend about the oral rape, whereas her friend gave no description of that whatever.[18]When it came to the directions given by the judge, the judge rightly directed the jury that the evidence of the friend describing the complainant's distress was evidence which went to support the complainant's case. But the direction was inadequate and incomplete in its reference to the discrepancies between the account given by the complainant and the account given by the friend. Indeed no such discrepancies were ever referred to by the judge at all. She said:
"...the fact that there is evidence that [the complainant] was quiet and perhaps a little upset when she made that complaint is something that you may take into account to support the case that [the complainant] has given to support her account but you only may treat it as support as such if you are satisfied that her demeanour when talking to her school friend, JB, was not feigned. It is a matter for you what weight you attach to the evidence of [the complainant] and her demeanour when making her complaint to her school friend. But suffice it to say, JB, when cross-examined, acknowledged that initially [the complainant]... was at first not very open. Her friend pushed her to say what was wrong and it was then she gave the description of being harassed by her uncle."
This direction, as we have said, makes no reference to the significant differences between the account given by the complainant of what she said to her friend and the account given by her friend. These were important because, unless the jury thought that the complaints were consistent with what the complainant was saying had happened, they could not possibly support her account. It was therefore incumbent upon the judge to direct the jury to that effect and to remind the jury of the important inconsistencies, as we are satisfied they were, between the complainant's account of her complaint and her friend's account. No such description was given and we think that in that respect too the judge failed, in a material respect, properly to direct the jury.[19]As we have indicated, there were other complaints. We have not heard submissions about them from the prosecution. We only venture to suggest that had they stood on their own they would not have been sufficient to compel us to reach the conclusion that we have reached and in any event were unlikely to succeed had not the main two points to which we have referred persuaded us to the conclusion that we have reached. We conclude that because this case so fundamentally depended upon the credibility, on the one hand of the complainant, and of this appellant, her uncle, on the other, the directions were inadequate and lead to our conclusion that the four counts on which he was convicted were unsafe. In those circumstances, we shall allow the appeal against his convictions on all those four counts.[20]We desire, however, to say and to stress this. This appeal has properly been focused upon the directions given by the judge to the jury. As we have concluded, she misdirected the jury in a way which leads us to the conclusion that the verdicts were unsafe. But, that does not amount to any reflection whatsoever upon the complainant or upon the truth or otherwise of her complaint. That has not been directly an issue before us. She has had no opportunity before us to say anything to the truth of the allegations. But the integrity of the verdicts depend upon the correctness of the guidance given by the judge as to how the jury should approach the all important issue of whether they are sure the complainant was telling the truth or not. Without being satisfied that the jury were not misled in the manner in which the case was left to them, we cannot be satisfied as to the safety of those verdicts. For those reasons we shall allow this appeal.

LORD JUSTICE MOSES: Who wants to go first?

[22]MISS MCATASNEY: I have submissions if my learned friend is asking for a retrial.

LORD JUSTICE MOSES: He has not yet. Shall he do so and then you can respond.

[24]MR HEYWOOD: Just two points in favour of a retrial, my Lord, I think. Firstly, the inherent seriousness of the allegations and with that the consequence, not only in terms of the custodial sentence but for registration. But against that I do not know what my learned friend will urge upon my Lord, but against that I have to acknowledge the time the appellant has spent in custody, which is by rough reckoning the equivalent of a 3 years sentence and also--

LORD JUSTICE MOSES: If there was another trial, that would be taken into account in relation to any sentence were he to be convicted.

[26]MR HEYWOOD: It would. To take a point against myself, the strongest point against a retrial, it seems to me, is the difficulty in explaining his case in full to the jury without bringing, in his own part, the fact of his having been tried and acquitted of rape.

LORD JUSTICE MOSES: It is a matter for the trial judge, if there is a retrial. But it almost inevitably would have to be laid before them, it will not do the prosecution any good.

[28]MR HEYWOOD: It will not. There are authorities on abuse of process that suggest that defendants should not be put in that position.

LORD JUSTICE MOSES: Are there. Have you got them?

[30]MR HEYWOOD: You will have to give me a moment, if I may. In the meantime I know my learned friend has some further submissions.[31]MISS MCATASNEY: I am grateful to my learned friend for the way he argues against himself almost. But my Lord, the difficulty for the Crown, the respondent's case would be limited purely to counts 1 to 4. They have the difficulty of the video evidence being limited to those very vague areas because, as I have submitted previously, there was on count 3 the one incident, which is this incident in the kitchen which is the only matter that was being spoken about in any kind of detail. There is then only count 4, the matter concerning digital penetration on 17th June, which was stated in interview but resiled from in evidence. That could not form count 4. There would be no other evidence because the parents' evidence called at trial was only referable to count 5 and JB's evidence was not referable to counts 1 to 3, because she was called on the basis that what the victim said related to Saturday 17th June 2006, but when of course she gave her evidence she was talking about when Jade was seven and/or 10. What the Crown would be left with is a very truncated video which would have little basis in terms of how the complaint arose because count 5 would not be admitted and--

LORD JUSTICE MOSES: Unless the defence wanted it in.

[33]MISS MCATASNEY: Unless the defence wanted it in. But that obviously is a decision that would have to be taken in terms of putting up a fence to knock it down to one extent. What one is left with is a girl saying:
"He kissed me some time, I cannot specify when or where or what instances on the lips; he touched my breasts, I cannot specify when, where or when; I have not complained about this to anyone."
The parents adding nothing to that because their evidence--

LORD JUSTICE MOSES: Why do you say she had not complained because she did make a general allegation about harassing, did she not?

[35]MISS MCATASNEY: She will say:
"I complained about Saturday 17th June."
Jade Baker will say: "No, she did not." You are left simply with a very truncated historical trial about matters that end in -- before 17th June 2006, because they do not have their digital penetration counts for 2006. In those circumstances any Crown prosecutor, reviewing the case, in our submission, would say that it did not pass a threshold for prosecuting. There is absolutely no supporting evidence, not even in the form of the parents.

LORD JUSTICE MOSES: I suppose you would also add, it is rather the point that Mr Heywood hinted at -- he did not have any authority when one needs it -- effectively by having a retrial, you are forcing the defendant into the position of having to raise the previous acquittal. But you would to that even -- suppose they had acquitted on that count and disagreed on the others, there could have been a retrial then?

[37]MISS MCATASNEY: There could have been, but it is a very difficult decision to put into the minds of the jury something that they may take a different view about and say: that jury was plainly wrong.

LORD JUSTICE MOSES: They could not have done that because they would not hear the full account of what happened in count 5, would they? They would merely hear that she had made the allegations. She would assert that it was the truth and the defence would say: "The jury were not convinced".

[39]MISS MCATASNEY: It is not a position, in our submission, that a defendant should be placed in to support counts which in themselves are so nebulous and vague, in our submission would never have got off the ground. If one looks at the 'A' interview it is all about 17th June, as the trial was all about 17th June. Those allegations come from the officer pushing questions: has anything else happened? Her eventually coming out with the other instances as the officer puts the question. The case focussed on 17th June. That is in effect what it was all about. In our submission, you would then be left with one word against the other, without any of the positive points that the Crown had previously and this defendant, a man of good character, saying:
"It did not happen."
That is it.

MRS JUSTICE DOBBS: That often happens in these kind of cases where it is one word against another.

[41]MISS MCATASNEY: It does but one normally has date, time and place or some detail to attach to the allegations.

LORD JUSTICE MOSES: It depends how old the child is. Not with young children you do not.

[43]MISS MCATASNEY: It would also require in a retrial directions in terms of delay and the historical side of matters. There would be an abuse argument potentially there, connected with explaining to the jury why the complaint comes out. Why is he being interviewed on 19th June?[44]MR JUSTICE GRIFFITH WILLIAMS: That is not unusual. This court often directs retrials and so a second jury has to consider factual issues some time after the events.

MRS JUSTICE DOBBS: Your point is because it all focussed on 17th June--

LORD JUSTICE MOSES: -- there is a huge question mark that the jury would never understand unless it was explained to them.

[47]MISS MCATASNEY: Therefore the defendant is almost forced into position where he has to, as I put it, raise the fence to knock it down.

LORD JUSTICE MOSES: Then it has to be explained to jury that it does not necessarily disbelieved, that they were not sure and all of that.

[49]MISS MCATASNEY: Absolutely. Also in circumstances my learned friend has properly and rightly drawn your Lordships attention.

LORD JUSTICE MOSES: He has done 3 years.

[51]MISS MCATASNEY: He has served the equivalent of 3 years and 1 month.

LORD JUSTICE MOSES: He is unlikely to have got a lot more than 3 years for those offences. He might have got another year I suppose. Bearing in mind he got 5 in all. We know what he got, he got 2 for those offences.

[53]MISS MCATASNEY: He got the 5 on count--

LORD JUSTICE MOSES: The court could not give him more than that next time, could they. Effectively he has served the sentence.

[55]MISS MCATASNEY: He has effectively.

LORD JUSTICE MOSES: That may be your best point. No, wait a moment, I am wrong he got 5 years for one of them. I am completely--

[57]MR HEYWOOD: Five years for count 1, 2 and 3.[58]MISS MCATASNEY: That is right. It is not correctly put in the Criminal Appeal Office summary. He got 5 years for counts 1, 2 and 3 and 2 years concurrent for count 4.

LORD JUSTICE MOSES: Got it. That makes sense.

[60]MISS MCATASNEY: In any event he has served--

LORD JUSTICE MOSES: -- over half of it.

[62]MISS MCATASNEY: Yes. His earliest release date is next January at the moment. In circumstances where we submit he would be facing, if allowed, with all difficulties that we submit there are and my learned friend echoes to some extent, a much reduced and weaker case and one which we do submit any Crown prosecutor, properly reviewing, would not pursue because of all the difficulties that we submit.

LORD JUSTICE MOSES: Is there anything else you want to say?

[64]MISS MCATASNEY: No, thank you.

LORD JUSTICE MOSES: Is there anything else?

[66]MR HEYWOOD: I cannot find the authority, I am afraid. It only came back to my memory from an earlier case that I did a few years ago when I came into court. Your Lordship took the point of the difficulty that it presents on general principle.

LORD JUSTICE MOSES: Yes. (Short Adjournment)

LORD JUSTICE MOSES: We shall not order a retrial.

[69]We wish to say that we think that there are very considerable difficulties in pursing this case where, in the light of the acquittal, the likelihood is that most of the evidence that was given last time round could not be given, for example, the surrounding circumstances of the complaint and what led the matter to come to light, still less the evidence of the friend, which in the current circumstances would be unlikely to satisfy the conditions of the third condition, under section 120 of the 2003 Act. We also bear in mind that this appellant has served a very substantial proportion of the sentence already.[70]It is necessary to stress again that our conclusion that it would not be in the interests of justice for there to be a retrial is no comment whatever upon the credibility of the complainant. We appreciate that it will be difficult for her and equally her family to realise that this result has been reached in consequence, not of anything they have said or done but because of the failures of the judge. But our conclusion stems from the need to preserve the integrity of the process of trial. In those circumstances, we shall make no order for a retrial.[71]MISS MCATASNEY: I am grateful. There is an application for costs.

LORD JUSTICE MOSES: Out of?

[73]MISS MCATASNEY: Central Funds to be taxed.

LORD JUSTICE MOSES: Yes, that should follow. He has not privately paid in relation to the trial?

[75]MISS MCATASNEY: No.

LORD JUSTICE MOSES: Yes.

[77]MISS MCATASNEY: Thank you very much.