A, R v [2009] EWCA Crim 513

Case No 2008/05068/B1[2009] EWCA Crim 513
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 5 March 2009
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE STADLEN
and
MR JUSTICE HOLROYDE
Between
R E G I N ACrown- v -
Between
A
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr D Gordon appeared for AppellantMr S Waley appeared for Crown
J U D G M E N TThursday 5 March 2009
[1]The appellant is now 62 years of age. On 28 April 2008, in the Crown Court at Hull, he pleaded guilty to seventeen counts of offences of making and distributing indecent photographs of children. He makes no complaint about that, or the sentences of two-and-a-half years' imprisonment that he received for those offences. This appeal relates to his convictions, following a trial which ended on 5 August 2008 in the same Crown Court, for offences of rape, indecent assault, and taking an indecent photograph of a child.[2]The victim in all those allegations was his natural daughter, Sarah. The appellant was convicted of most of the offences on the trial indictment: one offence of rape, two of indecent assault, and one of taking indecent photographs of a child. He was sentenced to a total of seven-and-a-half years' imprisonment on that indictment. That sentence was ordered to run consecutively to the two-and-a-half years' imprisonment on the indictment to which he had pleaded guilty. He is therefore presently serving a sentence of ten years' imprisonment. A number of ancillary orders were made, given the nature of the offences. He now appeals against conviction by leave of the single judge.[3]The substance of the appeal does not necessitate a very detailed account of the factual background. It can be summarised in this way. Sarah was born in September 1974. She lived in the family home until she was about 17 or 18. She has a younger sister and a younger brother.[4]The sexual offences against her took place between 1981 and 1992 when she was aged between 7 and 17. The prosecution arose following the arrest of the appellant on 19 January 2008 in relation to the seizure of his computer which contained the material which led to the pleas of guilty on the first indictment. However, those events precipitated Sarah's complaint to the police a day or two later. She had long since been estranged from the appellant.[5]Her allegations of sexual abuse had not previously been drawn to the attention of the authorities, but the evidence was that when she was 12 or 13 she had complained to her grandmother (now deceased). However, she was not believed. On another occasion she made a loud allegation in vernacular terms against her father in the house. It seems to have been heard or overheard by her mother but nothing happened. Nor did anything happen on a subsequent occasion when Sarah spoke to her mother about these matters. She was simply accused of being "daft and delusional". On another occasion she had spoken to a school friend, but only in very general terms. Her evidence was that at all previous times she had been either too ashamed or too scared to take the matter to the authorities. The fact that she was scared is particularly understandable in view of the fact that the appellant was at the time, and until his retirement, a serving police officer.[6]In about 2003 or 2004 Sarah eventually told her husband about the history. By then they had been married for fifteen years or so. She has also told her younger brother. They were both prosecution witnesses at the trial.[7]The allegations can be summarised in this way. Count 2 in the indictment related to Sarah's seventh birthday on which occasion there was a family party. When her mother left the house to take one of the children home, the appellant went to Sarah in her bedroom and indecently assaulted her under her clothing. He stopped when the mother returned. The appellant told Sarah not to say anything or she would be in trouble.[8]Count 4 occurred when she was about 9 or 10. She had injured her arm and had been taken to hospital. The appellant assaulted her in the car when he was driving her home.[9]Count 1 (rape) was the most serious offence. It occurred on a Sunday in 1994 when Sarah was aged 17. It is not necessary to go into great detail. It was a violent rape in the house.[10]Count 6 involved an indecent photograph. Sarah had known nothing of the existence of the photograph but it was recovered from the appellant's belongings on the occasion of the search of the house in January 2008. Apparently it was a picture of Sarah taken by the appellant on a family holiday. It is said that he had burst into the bathroom and taken the picture in those circumstances.[11]There was a certain amount of peripheral evidence, to which again we need not refer.[12]The evidence about the indecent images on the computer which supported the first indictment was that there were 65,858 indecent images of children, including approximately 500 movie files. The material included images between levels 1 and 5. At divider 6 of the bundle there were "chat logs", where the appellant had posed as a 20 year old female exchanging indecent images with an incest-related theme and expressing a desire to become involved in father/daughter incest. At divider 8 there are examples of the appellant's visits to incest-related websites. The officer also found 34 folders on the hard disc, each containing between eight and 115 incest-related pictures. In addition, there were the appellant's own compositions expressing interest in sexual intercourse with a girl aged about 14. Divider 7 contained story book images where the appellant had obtained a generic image of child pornography and had overwritten it with a storyline with an incestuous theme.[13]In the course of the trial the judge allowed the jury to receive information about the material from the computer to the extent to which we have described it, albeit in greater detail. However, the photograph images themselves did not go before the jury.[14]This appeal against conviction is directed against the judge's ruling whereby he admitted that evidence as evidence of the appellant's bad character. As we have related, the offences of rape and indecent assault were alleged to have taken place between 1981 and 1992 when Sarah was aged between 7 and 17, whereas the bad character offences were committed between 2005 and 2008, some fourteen years or so after the last and most serious of the offences against Sarah, the offence of rape.[15]The application to adduce evidence of bad character was made at the commencement of the trial. It was put on a propensity basis. It is necessary to refer to the statutory provisions. Section 101(1) of the Criminal

Justice Act 2003 so far as relevant provides:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if -– ..... (d) it is relevant to an important matter in issue between the defendant and the prosecution."
Section 101(3) provides: 16. "The court must not admit evidence under subsection (1)(d) .... if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." Section 101(4) provides: 17. "On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged." "(1). For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include -- (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; 19. ...."[16]Following submissions on the question of the bad character evidence, the judge gave a careful ruling. He described the nature of the material which the prosecution sought to adduce, noting that a conscientious attempt had been made to minimise it by confining it to material referable to incest and by excluding the actual photographic images so as to reduce any prejudicial effect. Having properly directed himself to the appropriate statutory provisions, he eventually ruled in favour of the prosecution. The following extracts from his ruling are of particular significance. At page 9 of the transcript he said:
"The important issue in my judgment is whether, at the time the allegations on indictment arose, the bad character evidence tends to support the proposition that the defendant was predisposed to offend in the manner set out on the indictment or, put another way, that he had a propensity to behave in that way. In my judgment, the bad character evidence upon which the Crown seek to rely is so relevant, because it supports the proposition that at the time the bad character evidence arose the defendant had developed an entrenched, persistent and sustained interest in sexual offending against children, with a particular preoccupation with father/daughter incestuous sexual activity."
[17]The judge referred to that preoccupation with father/daughter incestuous sexual activity as "particularly rare and quite specific in nature." He then said this:
"The fact that this appears, on the evidence available at present, to come against a backdrop of a complainant who had previously complained about the defendant's alleged incestuous behaviour with her and then kept her own counsel about these matters, in apparent ignorance of the defendant's computer use, or misuse, makes this bad character evidence all the more relevant and powerful. Put another way: in my judgment, a reasonable jury would be entitled to consider the complainant's independent complaint and assess it in the light of the defendant's subsequent computer misuse, and conclude that the proposition that the complainant should make her complaints against an innocent man who just happened later in life to develop peculiar sexual preoccupations consistent with the complainant's complaint is profoundly unlikely."
He then said: 22. "Does the mere fact that the defendant had a preoccupation with child sexual offences, and in particular father/daughter incestuous sexual activity, between 2005 and 2008 make it any more likely that he behaved in the manner the Crown allege on indictment? In my judgment, the answer to that question is 'Yes'. .... as the prosecution put it, the defendant's sexual interest in children, and in incest in particular, is an essential prerequisite to the commission of such sexual assaults." He also referred to the obvious relevance of the material to the count on the trial indictment alleging the taking of indecent photographs of Sarah.[18]At page 11 of the ruling the judge turned expressly to the matters referred to in section 101(3) and (4), namely whether the evidence fell to be excluded because of its potential adverse effect on the fairness of the proceedings and the lapse of time. That, too, was a careful consideration in which the judge acknowledged that the material would be prejudicial, but concluded that in the light of the editing of it and the way in which it was to be presented it was highly relevant and powerful such as to justify its admission, notwithstanding the prejudicial effect.[19]In this appeal Mr Gordon has made admirably succinct submissions reflecting his helpful skeleton argument. He seeks to attack the judge's ruling by reference to the passage of time in which context he refers not only to the statute but to the case of R v Hanson [2005] 2 Cr App R 21. He submits that the passage of time is even more important when the bad character material post-dates rather than pre-dates the allegations that were being tried by the jury. He observes that the bad character material proves voyeurism and aberrant fantasy, but does not include or depict any physical act on the part of the appellant. He further submits that if Sarah had complained promptly to the authorities, the trial would have taken place long before the bad character offences were committed and the appellant would not have been at risk of this prejudice. He submits that in effect the appellant is prejudiced twice over: by the delay in the complaint and by the passage of time before the bad character material came into existence. Finally, he submits that even if the material was otherwise admissible, it ought to have been excluded pursuant to section 101(3). He refers to it as "lurid and revolting" and suggests that it cannot fail to have had a seriously adverse impact on the proceedings. He refers to the jury as being "swamped" by the material and suggests that it would be expecting miracles for a jury to complete a fair assessment of the evidence in relation to the offences on indictment once they had heard of that material.[20]After giving careful consideration to these submissions, we are not persuaded by them. The first two (the passage of time and the fact that it was the bad character offences that came later) called for careful consideration by the judge, but it is clear that they received it in his impressive ruling. We readily accept that in many cases a gap in time of this duration, coupled with this order of events, might militate against admitting evidence of bad character. However, incestuous rape in particular is no ordinary offence. It can only be committed by an abnormal offender against a very limited number of victims and usually for a relatively short period of time. We refer again to the judge's words:
"A reasonable jury would be entitled to consider the complainant's independent complaint and assess it in the light of the defendant's subsequent computer misuse and conclude that the proposition that the complainant should make her complaints against an innocent man who just happened later in life to develop peculiar sexual preoccupations consistent with the complainant's complaint is profoundly unlikely."
In our judgment this is a complete answer to the temporal submissions. It is true that the appellant's recent offending does not extend to sexual assaults. However, the submission based on that fact only goes so far. Twenty years ago it might have been deployed successfully in an answer to an application to adduce the evidence on a similar fact basis. However, it does not now provide a good reason for excluding the evidence as evidence of propensity under sections 101 and 103 of the 2003 Act in the circumstances of this case. An allegation of incestuous rape is more likely to be true when made against a man with an obvious interest in deriving sexual gratification from material depicting incestuous rape, even many years later, than made against a man with no such provable interest.[21]We do not consider that the lateness of the complaint or the fact that the bad character evidence would not have been available if there had been an early complaint are particularly significant in relation to admissibility. If anything, they go to the question pursuant to section 101(3) of whether the evidence would have such an adverse effect on the fairness of these proceedings that it ought not to have been admitted. It was considered by the judge in that context. We are entirely satisfied that he reached a permissible and appropriate conclusion about it and about all aspects of fairness in the balancing exercise that he was required to conduct.[22]For all these reasons we dismiss this appeal. In so doing we take the opportunity to draw attention again to what Rose LJ, the Vice-President of this court, said in Hanson at paragraph 15:
"If a judge has directed himself or herself correctly, this court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of non-compliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense...."
[23]Mr Gordon properly concedes that that is the approach that we must adopt. Although Rose LJ was speaking specifically about prior bad character evidence, the proposition is equally referable to subsequent bad character evidence. It is the basis upon which this court approaches appeals of this kind. "Plainly wrong" and "Wednesbury unreasonableness" are demanding tests. They are certainly not satisfied in the present case.

Cited in 3 later judgments