EED v R [2010] EWCA Crim 1213

Case No 200801394 D1

[2010] EWCA Crim 1213

COURT OF APPEAL (CRIMINAL DIVISION)

Date 21 st February 2008

ON APPEAL FROM

Aylesbury Crown Court before Deputy Judge Maher and a jury

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Date: 28/05/2010

Before

LORD JUSTICE PITCHFORD

MRS JUSTICE RAFFERTY

HHJ GOLDSTONE QC

Between

EEDAppellant

REGINARespondent

Francis Lloyd (instructed by Dexter & Port- Solicitors) for Appellant

Amjad Malik QC (instructed by CPS Aylesbury) for Respondent

Hearing Hearing date: 13th May 2010

Judgment

Lord Justice Pitchford :

[1]This appeal against conviction raises in stark form the question whether it is in the interests of justice, within the meaning of Section 114(1)(d) Criminal Justice Act 2003 to admit in evidence the hearsay statement of a witness who has been warned but has failed to attend to give evidence for reasons personal to herself, and not sufficient to engage the Section 116 gateways.

[2]On 21st February 2008 after a trial at the Aylesbury Crown Court before His Honour, Deputy Judge Maher and a jury, the appellant, ED, was convicted upon the following counts in the indictment: Count 1: rape of his wife’s sister to whom we shall refer as MT, a girl under the age of 16, contrary to Section 1 Sexual Offences Act 1956. Counts 3 and 4: attempted rape of MT a girl under the age of 16 contrary to Section 1 (1) Criminal Attempts Act 1981. Counts 5 and 6: indecent assault upon MT, a girl under the age of 16 contrary to Section 14 (1) Sexual Offences Act 1956. Count 7A: attempted rape of his wife’s second sister to whom we shall refer as RT, a girl under the age of 16, contrary to Section 1 (1) Criminal Attempts Act 1981. Counts 8, 9 and 10: indecent assault upon RT, being a girl under the age of 16, contrary to Section 14 (1) Sexual Offences Act 1956. Count 11: indecent assault upon his wife’s third sister, to whom we shall refer as LT, being a girl under the age of 16 contrary to Section 14 (1) Sexual Offences Act 1956.

[3]The appellant received a sentence of 12 years imprisonment upon Count 1 and lesser sentences on the other counts were ordered to run concurrently. Evidence at trial

[4]The appellant was married to A. She was the eldest of the four sisters. At the time of trial A was aged 40 and her younger sisters MT, RT, and LT were, aged 27, 27, and 29 respectively. MT and RT were twins. At the end of May 2007 the appellant’s 12 year old son was admitted to hospital with injuries believed to be consistent with a parental beating. LT gave evidence that this incident made her think about a sexual assault which she asserted had been committed by the appellant upon her while she was staying at the home of the appellant and her sister. She decided to tell her mother and contacted her sister RT. She also telephoned an old school friend, to whom we shall refer to as ML. She had, she said, made a complaint to ML about the appellant while still a young girl. All four sisters gave statements to the police. MT, RT, and LT gave accounts of sexual offences committed by the appellant against them between about 1989 and 1995 while they were in their early teenage years.

[5]The appellant’s case at trial was that none of the allegations made was true. His wife A wanted him out of their home and out of her life. In about May 2007 she had offered the appellant £50,000 to leave the former matrimonial home and when that failed she enlisted her sisters to concoct false allegations of sexual impropriety by the appellant towards them. It is not necessary for present purposes to descend to the detail of the evidence. We are told by Mr Malik QC who represented the prosecution below that notwithstanding the allegations made in cross-examination, they gave their evidence in a straightforward manner. LT was the third and last of the complainants to be called to give evidence. The defendant’s case had been put to MT and RT in cross-examination. The prosecution wished to adduce evidence which supported the complainants’ insistence that they were motivated only to tell the truth and not to give false evidence at their sister A’s bidding. Application under Section 114(1)(d)

[6]Counsel for the prosecution had in his possession two statements from the witness ML to whom LT had turned for help in 2007. The first was dated 10 July 2007. In it ML said that during May 2007 a mutual friend of herself and her old school friend, LT, had telephoned her to inform her that she had passed ML’s telephone number on to LT because LT wished to make contact to discuss something which she had told ML many years before. LT then telephoned ML and asked whether she could remember when they were young and added “you know what I am going to say don’t you?” ML knew that the subject would be a conversation between the two girls when they had been on a bike ride at the age of about 11 or 12 years. LT asked ML if she minded a police officer making contact with her. ML asked if the subject was the bike ride. LT said it was. Shortly afterwards ML was contacted by the police. In her statement ML described the conversation. She and LT were on a bike ride together in High Wycombe. LT had recently spent a holiday with ML and her family. LT said “I have got something to tell you, it’s a secret. I don’t know what to do, E’s touched me” (meaning the appellant). ML told her that she should tell her mother but LT responded that she was worried as “he’s married to my sister”. According to ML she asked LT where E had touched her and she said “He put his hand up my skirt”. In fact the account given by LT at trial was that there was only one indecent assault and it occurred under the duvet on a sofa she was sharing with the appellant.

[7]It seemed at first to the judge that the prosecution was seeking to introduce evidence of a contemporaneous complaint made by LT. There were, however, difficulties with such an application made under Section 120(7) Criminal Justice Act 2003 and it quickly became apparent that the real object of the application was to seek the admission of ML’s evidence to rebut the defence allegation of recent fabrication. The object was not to prove the truth of the complaint but to prove that the complaint was made. If such a complaint was made, it tended to undermine the defendant’s case that at the material time his relationship with LT was entirely innocent and normal, and that only after the dispute between himself and his wife did LT’s false allegations against him see the light of day.

[8]However, the prosecution did not attempt to produce ML in person to give evidence. On 7 February 2008 ML had made a second statement in which she said this:

“I am giving this statement in relation to a trial that I was asked to attend on the 18th February 2008 at Aylesbury Crown Court. I gave a statement to DC5675 Katie James on the 10th July 2007 regarding a disclosure that [LT] made to me many years before when we were children. I gave the statement detailing what [LT] and I had discussed and never heard anything from the police again. In September 2007 my partner and I booked to take our two young children away to Butlins in Bognor Regis for a mid-week break. We booked the break for the February half term week in 2008 and were due to be at Butlins from Monday 18th February until Friday 22nd February 2008. We paid for the holiday at a cost of £350. I have two young children aged 2 and 4 years. Since booking this holiday, we discovered that I was pregnant with our third child. I am now 28 weeks pregnant and due to give birth on the 28th April 2008. On the 22nd January 2008 I received a telephone call from Cathie Boyle who informed me that she was a witness care officer at Aylesbury. She told me that I was being officially warned that I would need to attend Aylesbury Crown Court for the trial of EED starting on the 18th February. I was very shocked and didn’t know what to say as I had no idea E had been spoken to by the police and absolutely no idea he would be going to court, as I had not been told anything further since giving my statement. I explained that I would not be able to attend on those dates as I was on holiday with my family, but Cathie told me that she would speak to the Crown Prosecution Service and get back to me but if I had been told to attend court I had to go. I was very upset and anxious about this as I didn’t know anything about it and was really looking forward to spending quality time with my family over this period. I then told my partner ... what had happened, and he was extremely upset and angry. It has caused upset between us and has caused me to be very stressed and worried. I do not believe that this is good for me or the baby and feel it is unfair to ask me to cancel plans that I made seven months ago and tell me that I will have to go to court for a trial that I didn’t even know was taking place. I have been waiting for witness care to get back to me for two weeks and have only heard from DC1880 Kylie West in the past few days to give me an update. I am going to be unable to attend court on the dates given.”

[9]Mr Malik QC informed us that despite the lack of contact between the witness and the witness care officer, the trial had been fixed for many months. It follows that there was no excuse for the failure to notify the witness only on 22 January 2008 that she might be required to give evidence at a trial commencing less than a month later. As we understand it, the object of Witness Care is to ensure that witnesses are kept informed of progress of the case in which they made be required. That function failed on the present occasion. In the circumstances, Mr Malik took the personal decision that a witness order should not be served upon the witness. She was six months pregnant and a very important family occasion would be disrupted. An application to adduce the evidence of the witness on health grounds was prepared under section 116 Criminal Justice Act 2003, but Mr Malik chose not to make the application appreciating the unlikelihood of its success. Thus, he invited the judge to admit the evidence of ML in the interests of justice under Section 114(1)(d). The application was resisted by Mr Samut, counsel for the appellant at his trial. His objection was that he, Mr Samut, should be in a position, either to challenge the making of the complaint or to make to the witness the same allegation of conspiracy or collusion which the appellant was making towards the complainants. Judge’s Ruling

The judge, in giving his ruling, rehearsed the background as we have described it.

(d) at page 6H of the transcript for 19 February 2008:

“This admissibility of hearsay evidence section has the interest of justice gateway which, as we know from the authorities, may be used in appropriate and proper circumstances, either on behalf of the prosecution or indeed the defence where other hurdles are not shown to be satisfied... The interest of justice is a phrase which is not synonymous, either with interest/requirements of the prosecution, or the interest/requirement of the defence. There are a variety of questions which one must pose and of course, inter alia, one must ask what the impact of the statement on the proceedings will be, whether the defendant will have a proper opportunity to deal with or rebut the statement, whether it is likely to be given a disproportionate weight by the jury, and so on and so forth. So the phrase “interests of justice” is as wide as can be. First, is it important in the context of the case for the prosecution to be able to show that LT made a complaint of a sexual nature all those years ago, many many years before the alleged hatching of the conspiracy in 2007? In my view, the answer to that question is clearly yes, if the prosecution can show this to the satisfaction of the jury it is very difficult to reconcile it with what the defence are alleging... The defence ... of course concede that it could not be put point blank to either witness were they here that this is all made up because I repeat the defence was not there. But what has been pointed out, if one goes to page 18 of ML’s statement, is that she does go into what the defence regard as some detail because we read the phrase: “he put his hand up my skirt” and the defence say this is difficult to reconcile with how the witness, LT, as she is recorded in her statement, records matters, in that she talked of making the complaint, but says that she did not go into detail, and the defence say that they would wish to explore this. We have to be realistic, we are looking back here over a considerable period. Each witness, ML and LT, is now adult and grown up with children of their own and one would be astonished if they either related or recollected the complaint, assuming it was made in identical terms and this is a comment which I would probably make to the jury. Is there any reason, on the face of it, not to accept the truth of what ML has said? She is not related to the complainants in this case. She is not related to the defendant. The statement suggests that she was approached out of the blue, apropos of nothing by the police last year. There is no basis for believing or suggesting that she has been got out by LT and although the defence say it is not beyond the bounds of possibility that ML herself has been drawn into this conspiracy and has been prevailed upon to falsely tell the police of a childhood memory, many might regard that as a somewhat far fetched proposition. In any event, it is a proposition that could be urged upon the jury and where such evidence goes in, that is goes in in read form, there is a fairly standard direction which we know is given to the jury about the problems of assessing a written statement and the difficulty which its submission has had as far as the defence are concerned. I stand back from this and ask that elusive question: what do the interests of justice require? There is one witness who can give oral evidence as to this and who could be cross-examined and the defence could put to that witness that she has indeed made up the making of the complaint all those years ago and they could ask her/suggest whether it is not the position that she sought to bolster up this matter by getting at ML in advance in order that she, ML, could falsely report the making of the complaint all those years ago when each of them was small children. Many might regard that as a somewhat far fetched proposition because there does not seem to be, on the face of the papers, any basis for suspecting that the witness from whom we have heard, or the witness from whom we are about to hear, were aware that the defence here was going to be a conspiracy to pervert the course of justice, which is not too high a way of putting it, hatched last year. So in my view, the interests of justice permits this statement to be read to the jury and the prosecution may, therefore, elicit in the shape of a read statement the portions which they have identified. I did suggest to the defence that they may be happier ... if the phrase “he’s put his hand up my skirt” were to be removed, but the defence (I think, for well understandable reasons) having declined this and they would prefer the jury to know of that observation so that they can say the terms of the complaint, as remembered by ML, are not the terms of the complaint as recollected by the witness, and no doubt, urge upon the jury, perfectly properly, that this calls into question both the making of the complaint and the terms in which it was made...”

[11]During the lunch adjournment, the judge examined the section further and at 4.07 pm added an addendum to his ruling in which he said:

“In particular, the maker of the statement appeared to me to be reliable and the circumstances surrounding the making of the statement seem to be reliable, and so on and so forth, and in challenging the statement the defence also were able to identify some differences between the evidence given orally and the evidence on paper, which will enable them to make adequate comments.”

[12]The judge went on to inform counsel that he had reminded himself of two ‘hearsay’ cases, Adams

(2007) EWCA Crim 3025

and Sak

(2007) EWHC 2886

(Admin) summarised in Issue 1 dated 8 February 2008 of Archbold News. He noted the reference to the unlikelihood that the prosecution would be permitted to take advantage of its own failures by seeking the admission of hearsay evidence under section 114(1)(d) and observed that there were not the many failures there identified in the current case, so he was thrown back on the interests of justice test. Having “gone up and down the check list”, the judge saw no reason why the jury should not be aware of the content of the statement in order to help them with the issue that had been thrown up in the case. Appellant’s Submissions

[13]Mr Samut prepared the original grounds of appeal for which leave was refused by the single judge. Counsel who now represents EED in the appeal, Mr Francis Lloyd, argues that ML’s evidence should not have been admitted. It was axiomatic, he said, that the trial must be fair. The wrongful omission of evidence which cannot be challenged is unfair. The judge failed, he submits, properly to analyse the requirements of section 114(2) and, in particular, failed to pay any significant attention to the question raised under section 114(2)(g) “whether oral evidence of the matter stated can be given and, if not, why it cannot”. In fact the judge at the commencement of his analysis identified the problem “as ML is not available to give oral evidence before this jury”. The true position was that ML was manifestly available to give evidence but the prosecution had made a decision not to call her. In these circumstances, and, given the importance of the issue whether a roughly contemporaneous complaint was made to ML, it was simply unfair to the appellant to admit the evidence.

(d) to the Absent Witness

[14]Mr Lloyd relies upon the decision and reasoning of this court in Z

[2009] EWCA Crim 20

, a constitution of the court over which Stanley Burnton LJ presided. In Z the defendant was also charged with offences of rape and indecent assault under the Sexual Offences Act 1956, the offences being allegedly committed between 1985 and 1989 when the complainant was aged between 9 and 13 years. The prosecution successfully applied to adduce the evidence of a doctor that in 1993 D complained to him that she had been sexually abused by the defendant when she was a young girl. D herself declined to give evidence since she wanted to put those events behind her. In giving his ruling, the judge treated the application as “routine and straightforward”. This, the court held, was an error. Stanley Burnton LJ recognised that had D given live evidence, there could have been no complaint. The evidence went to establish propensity and tended to correct the defendant’s portrayal of himself as a good family man.

[15]However, the court held, there was a lacuna in the judge’s reasoning. Stanley Burnton LJ continued:

“18. It can be seen that sub-section (1) comprehensively restricts the circumstances in which hearsay evidence may be admitted in criminal proceedings to those set out in its four paragraphs. Paragraph (d) is the only paragraph having positives substantive effect: the other paragraphs of sub-section (1) simply refer to other provisions or rules of law permitting such evidence to be admitted. Paragraph (d) is unhelpfully drafted. It has been referred to as creating a residual power or as a safety valve; considered in isolation, it might be given a wide or a narrow application. 19. However section 114(1)(d) must be construed and applied in its statutory contact. In particular, in a case such as the present, where the evidence in question is of a statement making an allegation of misconduct, it must be read together with section 116. That section is narrowly drawn. It is headed “cases where a witness is unavailable”, which would not include the case of D. The conditions for the admission of hearsay under section 116(1) are set out in sub-section (2) ... none of these applied to D. 20. In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare (2006) EWCA Crim 2512 at Paragraph 30: “We think it is important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.”

But section 114(1)(d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116 ...” “We think it is important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.” But section 114(1)(d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116 ...”

[16]The Lord Justice noted that the trial judge had not sought to test his decision against the criteria set out in section 114(2). At paragraph 25 he continued:

“25... In the present case, the reluctance or apparent but untested unwillingness of D to testify did not justify his submissions. This was a case in which the restrictions on hearsay in section 116 were being circumvented. As we indicated in the preceding paragraph of our judgment, the effect of the admission of this evidence was potentially very damaging; and it was very difficult for the appellant to deal with it other than by a simple denial. We need not consider what the position would have been if D had been served with a witness summons and refused to attend or to testify: that did not happen.”

[17]This decision is important because it reinforces the court’s view that it should not countenance the use of section 114(1)(d) to circumvent the requirements of other gateways to admissibility higher up the section 114(1) hierarchy. It is not permissible to nod through hearsay evidence merely because it is convenient to the party seeking its admission and the evidence is of value upon an important issue in the trial. We note, however, that neither the court in Z, nor the court on any other occasion brought to our attention, has ruled that in no circumstances will hearsay evidence be excluded on this ground when otherwise there would be cogent reasons for admitting the evidence in the interests of justice. On the contrary, the terms of section 114(2)(g) read in context with the other paragraphs of section 114(2) suggest that it is contemplated that there may be occasions when evidence, which cannot be given orally for reasons other than those provided for by section 116, may be admitted.

[18]For example, in L

(2008) EWCA Crim 973

(2008) 2 Cr App R18

, the court over which Lord Phillips CJ, as he then was, presided, considered an appeal against conviction for rape by the accused of his daughter in her own flat. The trial judge had admitted under section 114(1)(d) the statement of the defendant’s wife which tended to rebut the defendant’s explanation as to why his semen was found on a towel in his daughter’s flat. The court was not convinced but was prepared to assume that the defendant’s wife was not a compellable witness by reason of section 80 Police and Criminal Evidence Act 1984. However, the court distinguished between compelling a wife to give evidence and permitting another witness to give evidence of a voluntary statement made by the wife in the past. Section 80 did not act as a bar to the production of the wife’s statement provided that the hearsay passed the interests of justice test set out in section 114(2). As a matter of fact the wife refused to give evidence. The court proceeded to examine each of paragraphs (a) - (i) of section 114(2) and concluded that the judge had been right to rule that the admission of the wife’s statement was both fair and in the interests of justice.

[19]In Adams

(2007) EWCA Crim 3025

the court approved the admission of the evidence of a witness under section 114(1)(d) when the witness had failed to appear at court notwithstanding that the prosecution was at fault for failing to ensure his attendance. The evidence was of a technical nature in that it established the defendant’s unlawful possession of ecstasy tablets in a nightclub, technical because, as the recorder elicited from the defence, possession was not to be an issue in the trial.

[20]Finally, in Musone

[2007] EWCA Crim 1237

, the court over which Moses LJ presided, approved the admission of hearsay evidence under section 114(1)(d) in the following circumstances. A serving prisoner was stabbed to death in his cell. The appellant admitted that he had punched the victim twice but maintained that another man had stabbed him, which explained the incriminating presence of the victim’s blood in the vicinity of the appellant’s cell and on his hand. As the victim lay dying, he uttered, according to the statement of a fellow prisoner, Patterson, “Bushman. Bushman done it” (meaning the appellant). Patterson refused to make a statement under section 9 Magistrates Courts Act 1980 and refused to come to court. He was arrested and at the appellant’s trial for murder he was brought to court but refused to answer questions. The judge ruled that Patterson’s informal statement which constituted double hearsay was admissible under section 114(1)(d) and section 121(1) of the Act. Having considered the trial judge’s examination of the section 114(2) criteria, his decision to admit the evidence was approved. The judge’s analysis had included the reliability and value of the evidence together with the fact that other evidence implicating the appellant was available.

[21]Each of these decisions demonstrates, in our view, how limited are the circumstances in which the evidence of an available but reluctant witness may be admitted in the interest of justice. In L and Musone there was a refusal by the witness to give evidence notwithstanding the best efforts of the prosecution. In Adams the evidence did not go to the heart of the dispute between prosecution and defence which was whether the appellant was in possession with intent to supply. We are aware of other circumstances in which evidence has been admitted under section 114(1)(d) when its purpose has been to fill a continuity gap or similar. However, as Lord Phillips reminded us in Horncastle and Others (2009) UK SC14 at paras 15-26 and 53, it is our common law tradition that the defendant is entitled to examine the witnesses against him and only in strictly circumscribed circumstances will a hearsay statement be admitted in the interest of justice. The trial judge is the gatekeeper responsible for the fairness of the trial (see paragraph 38 of Horncastle), and the examination of the factors set out in section 114(2) and any other relevant factors must be performed with caution when the object is to fill a gap caused by the non-attendance of a live witness on grounds which do not fall within section 116.

(d) to ML

[22]Having examined the judge’s ruling, it seems to us clear that he was right to conclude that the evidence had significant probative value upon an issue of some importance in the trial. Other evidence was available upon the same issue from the complainant herself. The prosecution was in a position to prove the circumstances in which LT’s complaint was made to ML by means of the live evidence of LT herself. It would, as the judge remarked, have been somewhat far fetched to assert that LT was preparing the ground for a false allegation which would not be made until many years later. There was, it is true, no means by which the appellant could make an effective challenge to ML’s evidence that a complaint had been made, but, in the nature of the evidence, neither was he in a position to make an effective challenge to the complainant herself. The reason for this disadvantage was not the absence of ML but the appellant’s own lack of personal knowledge as to what may have passed between them. The judge rightly observed that for the reason given there was limited prejudice to the appellant since any challenge he mounted must be circumscribed by his own lack of knowledge. Furthermore, the admission of the statement enabled the appellant to make extensive use of the inconsistency of account between the two witnesses in an attempt to undermine its truthfulness.

[23]However, the learned judge, in our view, made the mistake of assuming that because the witness was not present she was unavailable through no fault of the prosecution. There was no analysis of an important factor which was why, under paragraph (g), the appellant was not in a position to challenge the witness who was making the assertion. While he was in a position to cross-examine the complainant herself, all that was available by way of challenge to the absent witness was comment. In our view, this hearsay evidence should not have been admitted under section 114(1)(d). The interests of justice were better served by the exclusion of the hearsay evidence. Fairness of the Trial

[24]It is necessary, however, to examine the question whether the admission of the statement, in the end, had such an adverse effect upon the fairness of the trial that it called into question the safety of the verdicts. Mr Lloyd accepted that if, as was inevitable, Mr Samut had put his client’s case to LT, she would have responded with the exclamation, “But I complained about it at the time”. Since this would have been an admissible rebuttal of an allegation of recent fabrication, LT would have been permitted to give circumstantial detail of the making of her complaint to her school friend ML. The greater the circumstantial detail she was able to give the more difficult for the appellant became his ability to challenge it. The less impressive his challenge the more likely it would be that the jury would accept the evidence of LT and reject the challenge by the appellant. In the event, the jury were aware of the evidence of a witness who was not before them, for reasons about which they were told not to speculate, that while a complaint was made in the circumstances related by LT, it was a complaint about an assault which was, on the face of it, quite different from that now alleged in LT’s evidence. It seems to us that as the evidence emerged, the appellant was in hardly a worse position than he would have been if the statement had not been admitted. On the contrary, he was now in a position to construct an argument, without having to put that argument to the witness that the reason why the statements differed, was because there had indeed been collaboration between LT and ML as alleged.

[25]It may even have been that, faced with LT’s evidence of complaint, Mr Samut would have found himself applying for the admission of the same hearsay evidence in order to provide the appellant with the grounds for an argument to this effect. However, we are simply not in a position to make any assumption what strategy trial counsel would have adopted on instructions from the appellant if faced with the dilemma.

[26]We have considered the state of the evidence as it appeared before the summing up. The underlying accusation put forward by the appellant was that A had engineered a conspiracy between the four women. That allegation had been put fair and square to all of them. We have considered the question whether it is a reasonable possibility that, despite the inconsistency between LT and ML, the jury may have been influenced by the hearsay to reject the defence rather than by a judgement that each of the witnesses was telling the truth. It seems to this court that the jury must have founded their decision, not upon a discrete consideration of ML’s statement, but upon a judgment of the reliability of all three complainants and their sister. We have considered how these matters were left to the jury by the trial judge in his summing up. During the course of his summing up, the learned judge made the following observations to the jury: “You will have been assessing for truthfulness and reliability as we have gone along. You judge each witness on his or her separate merits asking the question, I repeat: Were we hearing truthful and reliable evidence from this witness? Apart from the statement which was read to you and upon which I shall give a further direction, you have had the chance to see how the witnesses gave their testimony and how they responded to the many questions which were put to them. This, obviously, will be a help to you in reaching whatever decisions you do reach.” (transcript page 2H-3B). “Now each side can’t be telling the truth here, obviously. Some person, or persons, are lying through their teeth. You do not have to decide each and every point thrown up in the course of the trial but merely such points as bear upon the important decisions that you have to take.” (page 4C). “If you are satisfied that you have heard truthful and reliable evidence, looking at each sister separately, that is quite enough to secure a conviction. No more is required and in many cases no more could realistically be required. All turns on your assessment of the witnesses.” (page 5D) “What you do is consider each witness separately. Is this witness truthful and honest? Is the next witness [telling the] truth and honest? Or so on, judging them on their own separate merits, as you do the defendant, because separate verdicts will be required of you when you return with your decision ...” (page 14E). “In these cases, the defence do not have to identify a reason why complaints are made and sometimes there is no reason, but they have done so here and it for you to consider. As you know, that was the full frontal attack on the four witnesses. In the case of one of the sisters it goes further, it is that she recruited a former school friend of hers to give lying answers to the police, so the defendant if he is or may be right, has the misfortune to be on the receiving end of lying evidence on the part of five people, four in this court and one in the shape of a statement. If you think that is, or maybe true, he is not guilty.” (page 16A-C). “The other matter for you to approach is: Did you hear truthful evidence and is the defendant in effect using his matrimonial difficulties, which admittedly exist, as a convenient peg upon which to attack those who have correctly accused him and is he using the only escape route that he can identify: they are lying. Now lies right at the heart of the decision you have to make as each side said to you. I cannot help you with that because that is why you are here.” (page 16D). “All three girls said to you, and this may be very important in terms of a direction to be given later, [that] although they were aware(a) that the police would need to be involved and

(b) that the police would be involved because of something sexual having happened, all three said they did not discuss in detail what had happened. One of the girls .... said she is even uncomfortable talking about it now. Now that all may be lies, it may all be play acting, all part of their attempt to pull the wool over your eyes or you may have been hearing the truth.” (page 18 D-F).

[27]Having reminded the jury of the evidence of MT

the judge continued:

“Now there are a variety of questions to be asked there which may help you. First, I remind you again, truthful and reliable evidence? I express no view on that. That is for you.” (page 24 C). “So what Count 1 requires you to do, which is why I have read the very words of the witness to you, is to ask: truthful and reliable? First hurdle. Then stand back from it and ask, in the light of the description that she gave you: what was that little girl (that mature woman as she now is) describing as having happened to her all those years ago when she was a child?” (page 25 D). “She said that she remembered an occasion, did not know exactly when, when she said to E, the defendant: “I have had enough”

. That she was going to tell her mother and the defendant said that everything that had happened was her fault. Now if he said that, that is the most cynical attempt to shift on to a young girl the moral responsibility for what had taken place ... She did not tell her Mum and the next thing was there was a telephone call. E had taken an overdose. He agreed he had taken an overdose. He in his evidence said it was nothing to do with this because none of this happened. It was because he had lost his job and he was depressed and so that is why he took the overdose.” (page 26 C-E). “But in any event, she said that she saw E at the house and he then said to her that it was his fault as to what had happened. Now, again, is that a detail that she has invented or in fact has she captured as best she can the rather messy emotional realities of what was going on at that time?” (page 27 A-B). The judge then turned to the evidence of RT and said: “Again, same question: Has she come to court to tell you wicked lies or was she doing her best to help you with what she recalls happening all those years ago? “ (page 29 H-30A).” “Were you hearing the fears and worries of a child as recollected years later by an adult or are these lying details as part of this put up job?” (page 32 F). “Again, same question: Has she come to court to tell you wicked lies or was she doing her best to help you with what she recalls happening all those years ago? “ (page 29 H-30A).” “Were you hearing the fears and worries of a child as recollected years later by an adult or are these lying details as part of this put up job?” (page 32 F).

[28]As to the evidence of LT and ML, the judge pointed out to the jury that, as to the occasion on which the alleged complaint was made, the oral evidence and the statement were as one but the account of the complaint was different. He pointed out to the jury that the allegation made by the appellant was that LT had invited ML to support a false story. If that was the case “it makes one’s blood runs cold”. The jury was warned that the defence had not had the chance to challenge ML. It had not had the chance to see her. It had not had the chance to observe her as she gave her evidence. These were obvious disadvantages. If the defence had had the opportunity it would have been put to ML that she had come to prop up LT’s story. The judge directed the jury that if it thought LT was, or may have been lying, her evidence disappeared. If, on the other hand, it thought she was telling the truth, then it would need to consider the differences between the complaints described: “Are the defence right that there are differences because this is a concocted story last year, and ML has not quite accurately remembered what she was told? She has not stuck to her script, my words. She has wandered off script in the way that blows the gaff. Or are the prosecution right that here is a good example of what happens when people are looking back over a number of years trying to recall what was said?” (page 39 H-40A).

[29]The judge pointed out that if indeed LT, as she said, had had nothing very much to do with her friend for a number of years it might be surprising, and a risk, if she was then to make the proposition suggested on behalf of the appellant. He made clear that he had made a comment but it was a matter for the jury to debate and decide. Having reminded the jury of the evidence of all three complainants and the defendant’s wife, the judge continued: “Let’s look at these girls. Are the defence right, or may the defence be right, that they have put their heads together at the behest of their sister and concocted this false story? If so, the evidence of all of them is worthless, not guilty.” (page 45 H-46A).

[30]In the course of his summing up the judge remarked that although the allegation of recent fabrication was made to each of the witnesses, it was unsupported by any detail. When he gave evidence, the appellant said only that he was on good terms with the complainants. They were welcome visitors at his house. There had been difficulties in his marriage, but he and his wife had attempted a reconciliation. Things went dramatically wrong and his wife offered him £50,000 to leave the house. It was his view the evidence given in court was all made up by the sisters to help A.

[31]We observe that the disputed hearsay evidence would not have been admitted, except on the application of the defence to prove a previous inconsistent statement, unless the appellant had chosen to make an accusation of conspiracy. We are satisfied that a consideration of the issue of the truthfulness of the hearsay evidence was largely subsumed in the jury’s principal task of which it was reminded by the judge time and again, namely to judge the truthfulness of the complainants themselves. It is clear from the verdicts of the jury that they believed all four women. We consider it most improbable, in the light of the use Mr Samut was able to make of the inconsistent statement of ML, that the statement had any material effect upon that decision. It is much more probable that the jury convicted the appellant in spite, rather than because, of its contents. The account given by the appellant was barely support for the allegations put to the witnesses in cross-examination and it seems to us overwhelmingly probable that the jury simply believed the complainants and disbelieved the appellant. It follows that in the result, while we are satisfied that the statement should not have been admitted in evidence under section 114(1)(d) in the first place, it did not have such a prejudicial effect upon the nature and conduct of the defence that the safety of the verdicts was affected. Accordingly the appeal is dismissed.