PR, R v [2010] EWCA Crim 2741

Case No 200901190B2[2010] EWCA Crim 2741
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Venue THE CROWN COURT AT MANCHESTER, Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/11/2010
Before
LORD JUSTICE RICHARDSMR JUSTICE GRIFFITH WILLIAMSHIS HONOUR JUDGE ROOK QC(sitting as a Judge of the Court of Appeal Criminal Division)
Between
RCrownPRDefendant
Andrew Edis QC (instructed by the Registrar of Criminal Appeals) for AppellantMaurice A Greene (instructed by the Crown Prosecution Service) for CrownHearing Hearing date : 21 October 2010
JudgmentLord Justice Richards :
[1]The appellant was convicted on 30 January 2009 in the Crown Court at Manchester, after a trial before His Honour Judge Khokhar and a jury, on 24 counts relating to sexual offences (indecent assault and incest) against his two daughters. He was sentenced to 10 years’ imprisonment. His application for leave to appeal against conviction was referred to the full court by the single judge. At the hearing before us we heard full argument, on the basis that it would be treated as the hearing of the appeal if leave was granted. We then reserved our judgment. In the circumstances we think it right to grant leave and to deal with the matter as a full appeal. In addition, the Registrar has identified errors in the sentences passed on two of the counts, which need to be corrected if the appeal against conviction is dismissed.[2]The identity of the victims is protected by the Sexual Offences (Amendment) Act 1992. For that reason we have anonymised relevant names and addresses in this judgment.

Overview of the case

[3]The complainants were the appellant’s daughters K, born on 20 June 1966, and P, born on 7 January 1968. Counts 1–18 alleged sexual abuse of K over a 13 year period: from 1980 to 1982, while she was under 16, the appellant was alleged to have indecently assaulted her by touching her vagina using fingers, vibrator or pipette, and by touching her anus (counts 1–8); from 1982 to 1993 he was alleged to have had sexual intercourse with her on a regular basis (counts 9–18). Counts 19–27 alleged sexual abuse of P over a 6 year period: from 1980 to 1984, while she was under 16, he was alleged to have indecently assaulted her by touching her vagina (counts 19-22); and between 1984 and 1986 he was alleged to have had sexual intercourse with her on a number of occasions (counts 23-27).[4]During the period covered by the indictment the appellant was married to H and they had a third child, a son. The family moved house several times and a second property, a flat, was purchased. The addresses at which the offences were said to have occurred included family home A (March 1976 to January 1979), family home B (January 1979 to March 1983) and family home C (March 1983 to April 1993), the flat, and the appellant’s business premises. The appellant and H separated in 1993 and were divorced in 1996. The appellant remarried. By the time the offences were reported to the police, K and P had themselves married (in K’s case, twice) and had children of their own. Matters only came to light as a consequence of allegations by K’s young daughter against a third party which caused Social Services to become involved.[5]At trial, the appellant was convicted on all counts except counts 18, 26 and 27, on which he was found not guilty at the direction of the judge. On counts 1-8 he was sentenced to 2 years’ imprisonment concurrent on each; on counts 9-17, to 6 years’ imprisonment concurrent on each; on counts 19-20, to 3 years’ imprisonment concurrent on each; on counts 21-22, to 2 years’ imprisonment concurrent on each; on count 23, to 4 years’ imprisonment consecutive; and on counts 24-25, to 4 years’ imprisonment concurrent on each; making a total of 10 years’ imprisonment.[6]The main issues in the appeal are whether the judge erred in rejecting a submission of no case to answer on counts 24 and 25 (which, it is said, would have had a consequential impact on the remainder of the case), whether his summing-up was deficient in its directions of law and its summary of the defence case, and whether those matters affect the safety of the convictions.

The nature of K’s allegations

[7]K gave evidence that in 1979, when she was aged 12, she was at home looking for Easter eggs and found a red bag in her parents’ bedroom which contained pornographic magazines, vibrators and other sex gadgets. In due course the appellant told her it was time to learn about the things in the bag. He would be home from work early and if her mother was out of the house he got out the red bag under the pretext of sex education. He wore a kimono for these sessions and it would fall open a little. He would get an erection and show his penis to K, explaining why he was aroused. He showed her how to put a condom on and asked her to describe what she saw in the magazines. He would masturbate himself, then it progressed to her masturbating him. He told her it would help her when she went out with boys. She was not to discuss it with friends or her mother. It moved on to him telling her how to masturbate herself, and they would get into bed. He would masturbate himself and put his hand in her vagina and on the area of her anus. When she was aged 14 or 15 this would happen twice a week. He also inserted a vibrator into her vagina, telling her he was getting her ready for full sex. He inserted foam spermicide into her vagina through a tube. He would take her to the flat, under the pretext of watering the plants, for sessions there on the bed. She used to go to his office during holidays, and after his staff had gone she had to go into his office or the small toilet and masturbate herself to orgasm.[8]Around Easter 1982 it moved on to full sexual intercourse. She described the first time as taking place in a hotel room in London while her mother was at a conference. It was a family room and her siblings were asleep. She and the appellant got into the double bed. He had brought spermicide with him. She lay flat on her back and he lay on top of her. It hurt and made her bleed. He ejaculated inside her. Thereafter he had sex with her two to three times a week. On a couple of occasions he used a condom but generally it was foam. The frequency depended on the circumstances and on whether her mother was home or not.[9]There came a time when K realised that the appellant was also involved with P. She and P had a conversation in which P referred to their father doing strange things to her. K would have been about 17 years old and P aged about 15 at the time.[10]K continued to have sex with the appellant until she left home at the age of 18. She wanted to stay away but she lost her job so had to return home, and the sexual intercourse continued after she came back. She became engaged in 1988 and married in 1989 in order to get away from the appellant, but it did not make any difference. The appellant would come to her house and show sexual interest, and when she visited the family home the sex continued there. If she was left alone with him sex would take place. She separated from her husband in 1993. The main factor in the breakdown of the marriage was sexual: she found it difficult and distressing and would be dry and nervous, and he could not understand why she felt unable to give herself to him.[11]In 1993 her parents separated and the appellant moved home. K visited him in his new home on three occasions, and on one of those occasions sexual intercourse took place. That was the last time they had sex together.[12]K said that in 1993 she had told a woman, GH, about the abuse. GH worked for the appellant’s company. K denied having had a lesbian relationship with her. In 1996 she went to Singapore with GH to try to get away from the situation, but her father turned up at the hotel and she returned to the United Kingdom. After the trip she told her mother about the appellant’s sexual abuse of her. Her mother called P to confirm the situation. There was then a family discussion. What her mother then did in terms of confronting the appellant is described below in the context of the mother’s evidence.[13]K remarried in 2000 and had two children, but her sexual relationship with her husband was a struggle and she eventually told him about the appellant. The marriage became violent and fizzled out in about 2005/6. Social Services became involved following a complaint by her daughter. It led to K disclosing matters about the appellant to them and then, in June 2006, to the police. She had not gone to them before because she had wanted to bury it.[14]K was cross-examined at length, on the basis that her account of abuse was a pack of lies. Important features of the cross-examination are referred to below when summarising the defence case.

The nature of P’s allegations

[15]P gave evidence that the appellant always wanted her to model her underwear and told her she looked like a page 3 model. She went to the flat with him on her own and on three occasions there he “played with her down below”. He said not to mention it or he would go to prison. She thought she was about 11 and did not then know what was happening. It could have happened at family home B, but she did not recall it. At family home C it happened all the time. He fondled her breasts, kissed them, played with her vagina and masturbated. He wore a Chinese dressing gown. It happened in her parents’ bedroom or the en suite, and in his study. He told her to wear a skirt open at the front, and no pants. He masturbated her, showed her how to do it to him, and how he liked it. He ejaculated into a condom.[16]P gave evidence at the trial that she could only recall one occasion of sexual intercourse with the appellant. In her first witness statement she had said that she had no memory of their having intercourse, but in her second witness statement she had referred to intercourse in terms that suggested it had been a frequent occurrence. These matters and their significance are examined in greater detail below when considering the contention that counts 24 and 25 should have been withdrawn from the jury.[17]P said she had come to know that the appellant was interfering with her sister. When she found out, they often talked about it. When K told their mother about it, the mother rang P and asked her to clarify what had happened. She thought that was in 1995. P told her mother that the appellant had interfered with her and that K was right. They had a family discussion and it was agreed that if the appellant wanted to see them, he had to speak to their mother first. She did not think about telling the police until 2006 but she did not recall how that came about. She had wanted to put it out of her mind. She did not want to talk to the police but she was under pressure from her mother to do so.[18]Again, important features of the cross-examination of P are referred to below when considering the defence case.

The evidence of their mother

[19]We refer here only to certain aspects of the evidence of H, the complainants’ mother, which are of particular importance for the defence case. H said that in September 1995 (she had originally said 1996, but this could not have been the case) K divulged to her that she and P had been sexually abused by the appellant. It caused her to phone P, who confirmed it. They had a family meeting. H had the impression that the abuse was still going on. It was decided that she should not to go to the police but should speak to the appellant and tell him it was to stop. She confronted him within days or, at the longest, weeks. His first reaction was that he did not understand, then he said “they never said they minded”. She thought he must be mentally ill. She made it clear he was not to contact the children. Contact subsequently recommenced but H policed it.[20]She also gave evidence about certain financial arrangements. An account was set up into which the appellant paid monthly sums for the children from December 1997 until he retired, when he could not afford to pay any more. There was a time in 2004 when he was concerned about what the children would receive if he died. They discussed matters and she suggested he give her a lump sum to divide between them. He said she would have to earn it. Payments were made in 2005, totalling £35,300, for which the appellant created invoices for “services rendered” and on which H paid tax. She said she used the money to buy premium bonds and as far as she was concerned the money was for the children. She returned £1,500 to the appellant to enable him to buy Christmas presents.

The defence case

[21]In his extensive written submissions to this court, Mr Edis QC summarised the defence case at trial along the following lines:(a) the two complainants had colluded in making their complaints;(b) they had both been subject to pressure from their mother who had used their complaints to blackmail the appellant over a period of some years, which rendered the complaints unreliable and explained why the complainants might seek to make false allegations;(c) K’s complaint was inherently unreliable, both because it contained a number of proven and admitted lies on important matters and because of the nature of her allegation that the offences of incest continued into her adulthood, against her will, even during her first marriage and during a lesbian relationship which she had formed after that marriage had ended;(d) the three different accounts given by P in her two witness statements and her evidence at trial added to P’s unreliability; and(e) there was a substantial body of written, photographic and video evidence produced by the appellant which showed normal communications between members of the family at important times, as well as other contemporaneous documents (such as letters, diaries and medical records) relevant to important issues in the case.[22]The written submissions include a detailed appendix setting out the matters relied on as showing collusion and pressure. We do not repeat all the points made in that appendix, but the flavour of them is given by the following: i) When K first made the allegation of abuse to GH, she said that P was not part of it; but when the allegation of abuse was made by K to her mother in September 1995, H contacted P who told her that what K was saying was true. This indicated that K had approached P and had persuaded her to support K and had told her what to say. That P knew in advance what K was going to say to her mother could only have been as a result of discussions between K and P about the allegations that K was going to make. ii) There followed meetings at which the matter was discussed between all of them. It is said to have been indicative of collusive discussions that they decided not to go to the police. Further collusive meetings subsequently took place, the outcome of which was that H confronted the appellant, demanding money in return for not going to the police, and denying the appellant access to his daughters on pain of the police being informed. A bank account was set up for the blackmail money paid by the appellant; the mother controlled the account and paid the money out to all three of her children. The time when the appellant stopped paying money into that bank account coincided with the time when K started accusing the appellant again, making allegations to her husband. iii) As soon as Social Services became involved, there were further collusive discussions between K and her mother to prepare their story. When their statements are compared, they can be seen to have made common errors about the dates of important events. They admitted discussing dates, and it is impossible to see how they could have discussed dates without discussing the case and the evidence. There were then further opportunities for intimate and detailed discussion of the verbal evidence they would give in court. iv) As discussed further in the context of the issue on counts 24 and 25, it is said that pressure must have been applied to P to get to her to introduce her allegation, which did not feature in her original account to the police, that the appellant had had sexual intercourse with her. v) Numerous passages in the transcripts of the interviews, the witness statements and the transcripts of the evidence at trial are relied on as showing that K and P had discussed the allegations with each other and with their mother.[23]A separate, detailed appendix sets out the matters relied on by the defence as showing dishonesty by K. They include the following: i) The appellant adduced evidence, from people who knew K, that she was unreliable by nature and told a lot of lies. It was suggested that she had lied about her lesbian relationship with GH, who gave evidence, and had in fact given a lying account of the abuse to GH to explain why she preferred women and to win sympathy. ii) The defence case was that K had fabricated her account of finding the red bag containing pornography and other items: she and her mother had dated it to Easter 1979 at family home A, but that had been shown to be wrong because the family had already moved to family home B by that date. iii) The evidence of K and her mother that the appellant was forbidden from having any access to the family after K had complained to her mother was shown to be a lie by the video films produced by the appellant, which showed him with the grandchildren at various times between 1996 and 2006. iv) K was shown to have lied in relation to her alleged reason for acquiescence in the abuse, the duration of the abuse, and what she said to Social Services as to having tried to escape from the abuse in various ways. v) K said that her trip to Singapore was in 1996, whereas it must have been in 1995, and this was highly material because it meant that there was a long delay between K telling her mother of the alleged abuse and her mother raising the matter with the appellant. vi) K lied about her inability to have sexual relationships with men as a result of the appellant’s alleged sexual abuse: both her husbands gave evidence that their sexual relationships with her were normal and there was further evidence to support that and to show other sexual relationships. vii) K also lied about having had a leg in plaster as a result of an accident at the appellant’s place of work when she was employed by him.[24]The appellant himself gave evidence at the trial, denying that any abuse had occurred and taking issue with various factual assertions in the evidence of the complainants and their mother.

The grounds of appeal

[25]Mr Edis’s written submissions included final grounds of appeal to the effect that(a) the judge failed to give the jury a series of necessary directions designed to ensure a fair trial;(b) the judge failed to put the defence case properly to the jury as to the facts;(c) the case required clear and tailored directions on character evidence, cross-admissibility and collusion, but no such directions were given; and(d) the judge was wrong to leave counts 24 and 25 to the jury and, having left them to the jury, he failed to give the jury adequate directions in relation to those counts. In his oral argument, Mr Edis put the issue concerning counts 24 and 25 at the forefront of his case, describing it as of fundamental importance for the appeal. We will therefore consider that issue first.

Counts 24 and 25

[26]Counts 23-27 all charged the appellant with incest with P. Counts 23, 24 and 25 were specimen counts, each covering a one year period (between January 1983 and January 1986). Counts 26-27 related to specific locations, in a caravan and at the appellant’s workplace. In the event it was agreed that counts 26-27 were not supported by the evidence and they were withdrawn from the jury. The case for the appellant is that counts 24 and 25 should also have been withdrawn and that if this had been done it would have provoked a reconsideration of the case concerning P generally and would have had a substantial effect on the direction the judge gave about the cross-admissibility of the complainants’ evidence (if such a direction was appropriate at all). In order to explain the way the case is put, it is necessary to see how P’s account developed over time on the issue of incest.[27]In her original video interview on 20 July 2006, P made no allegation of incest. When asked directly, she said “I can’t say, hand on heart, that it happened”. In her first witness statement, dated 24 April 2007, she recalled the appellant taking a condom from the bedside drawer and her having to put it on his erect penis, and continued:
“As I cannot remember having penetrative sex with Dad, I can only assume that we must have done, because there would be no other reason for us using the condom at these times as they were never part of our masturbation sessions …. I have no memory of my father inserting his penis inside my body but I do believe that we must have done because of the occasion with my first boyfriend when I knew all the sex stuff already ….”
[28]On 11 March 2008 P made a second witness statement, in which she claimed to remember that the appellant had had sexual intercourse with her:
“I declare that between the ages of 11-18 my father committed sexual intercourse with me. When my father managed to get me by myself I knew that it could or would lead to sexual intercourse …. My father would lick and rub my private parts in any part of the house which would then lead to going to their bedroom to have sexual intercourse. He would tell me to get into bed, he would remove his clothes / dressing gown and take a condom from the drawer next to his bed, he would then put it to one side until ready to use, he would then get in next to me and start rubbing and licking me again until he was aroused and erect, he would then put his condom on. He would always put some sort of cream/gel on my vagina (to stop him from hurting me when he had sex with me). He would then open my legs and climb on top, feel for my vagina and push his penis inside. I couldn’t move, but was told to put my arms around him and I just lay there looking up at the ceiling, feeling numb, uneasy and strange. After, Dad would put the condom full of sperm in the toilet to get rid of the evidence. The above happened at [family home C] in my parents’ bed. There are other times when my father and I were in bed but I cannot recall what happened at those times ….”
[29]She also gave an explanation of why she had not given this account when first questioned by the police. She said she was extremely scared and frightened about what lay ahead. She felt pressurised by her mother to co-operate with the police but at that time she had not come to terms with her own memories and had spent her whole life trying to block them out and forget about them. So trying to bring forward on demand such damaging information against her father was extremely difficult, especially as she had been told all along by him to say nothing. When she first provided a statement, her memories were far from clear, but she had had time to come to terms with the situation and was able to provide the present account because she was calmer and more relaxed than before.[30]The defence contention was that P had been put under substantial pressure by her mother and K to come up with her allegation that the appellant had had sexual intercourse with her. One suggestion made on the appeal is that such pressure may have been exerted inter alia at a family funeral (of P’s maternal grandmother) that took place in February 2008, a few days before P contacted the police to say she wanted to make a second statement. That particular point, however, can carry no weight since it was not taken at the trial and, whilst there is evidence that the mother and K attended the funeral, there is no evidence that P attended it.[31]At trial, P gave what was described as a third version of events, expressing matters in a more limited way than in her second witness statement. The relevant exchange in her evidence in chief was as follows:
“Q. How often did sexual intercourse take place over those three years? A. I can only recall one time, it might have happened lots and lots of times, but I can only remember one particular time that was clear in my mind. Q. Tell us about that one time? A. I was at home one day and dad told me to get into bed and he took his dressing gown off and got in next to me, before that he got a condom out of the chest of drawers next to the bed, I lay on the bed and he started to fondle my breasts and licked them and started to rub my vagina and get, he was excited and, once he was erect, he then put a condom on and got on top of me and pushed his penis inside me, but he always used to put a jelly type liquid on, so it didn’t hurt when he went inside, so it wasn’t painful for me. Q. You said he always put a jelly type liquid on, when you say always, that suggests that it happened more than once? A. I feel it did, but I can’t recall any other time that it happened to me, apart from this one time, my memory is completely blocked, I can only remember this one time that it happened. Q. What makes you feel it happened more than once? A. Because, when I started to have boyfriends, I knew exactly what was happening before they did anything, I knew what was going to happen, as in inserting of the penis inside, so this is why I felt it happened, but I can’t recall any other time, apart from this one time.”
Q. Tell us about that one time?

Q. What makes you feel it happened more than once?

[32]In the course of cross-examination, it was confirmed with P that what she was saying in her second statement was that her father had sexual intercourse with her often. The exchange continued:
“Q. So in April, 2007 you could not remember it ever happening, in March, 2008 you could remember it happening often and today you can remember it happening once, which of those different accounts is true? A. I can only remember this particular one on this day, it probably happened lots of other times, but I can’t recall any other, apart from this particular one, which came in my life. Q. The truth is … that it never happened at all, is it not? A. That’s not true, it did happen, it’s in the statement, I remember it that one particular time very clear in my mind. … Q. ‘Between the ages of 11 and 18 my father committed sexual intercourse with me’, that means between 1979 and 1986 he was committing sexual intercourse with you, is that true? A. Yes, he was, yes, but I can only remember this certain time, this one particular sexual intercourse time, I can’t remember and recall any other time.”

Q. The truth is … that it never happened at all, is it not?

[33]There was expert evidence from two psychologists, Professor Bull on behalf of the Crown and Professor Conway on behalf of the defence, as to the operation of the human memory and the plausibility of what P said in her second statement about having recalled matters which she had previously blocked out, and of the further shift in her evidence at trial that she could only recall one occasion of sexual intercourse. Whilst we have some concerns as to the admissibility of that evidence, in his summing-up the judge reminded the jury of it at some length but observed that it seemed to him that the two experts were agreed eventually that the existence of three versions of events was “unusual” but they were by no means saying it could not happen.[34]The defence made a submission of no case to answer on the basis that, since P gave evidence at trial that she could remember only one occasion of sexual intercourse, only one count of incest should be left to jury, so that count 23 could remain (adjusted to make clear that it related to a single occasion during the relevant period) whilst counts 24-27 should be withdrawn. The judge accepted that counts 26 and 27 should be withdrawn, there being no evidence that sexual intercourse took place at the locations specified in them. But he declined to withdraw counts 24 and 25. His reason was that, since P’s second statement had been put to her as a previous inconsistent statement, that statement was admissible pursuant to s.119(1) of the Criminal Justice Act 2003 as evidence of the matters stated in it, and it would be open to the jury to act upon that statement if they found it to be true. The relevant part of the section he relied on is in these terms: “119.

(a) he admits making a previous inconsistent statement, or (b) …

[35]In ruling that counts 24-25 should be left to the jury, the judge said that the jury would be directed appropriately as to how to approach those counts. In the event he included the following direction in his summing-up:
“The next matter of law, Members of the Jury, previous inconsistent statements, that is something which has been hammered at you by the defence in the course of this case. There were a number of occasions (and you will recall Mr Edis, in the course of this morning, went through those inconsistencies), yes, there are some inconsistencies in the evidence, which both K and P gave, to what is contained in their original statements. One thing you must bear in mind is that giving evidence in a court of law is not some sort of memory test but, at the same time, the point the defence make is that you would expect some consistency between what a witness says in their statement to what a witness says when he comes to give evidence in court. In each case, Members of the Jury, you make take into account any inconsistency, which is proved to be an inconsistency and the explanation which the witness gives for it, in order to judge the reliability of that particular witness. That is the first thing you do. Secondly, you decide the extent and importance of that discrepancy, in the context of the issues which you have to resolve. In other words, if it is a discrepancy, for the sake of discrepancy and inconsistency, it matters not – really the issue you have to resolve whether this defendant perpetrated this abuse or not – then it is irrelevant, but on the other hand, if it has a bearing on that particular issue, then you have got to treat the evidence of that witness, on that particular point, with care; with considerable care. But, at the end of the day, if you come to the view that one of the two versions, or one of the three versions, whichever it may be, is something, which you believe to be the truth, coming from the witness, in those circumstances, Members of the Jury, you are not deprived of that evidence; you can act upon it and take it into account when you are deliberating in your jury room. So where there is inconsistency, treat it with care, if you accept one of the two versions, you can act upon it, whichever it is.”
[36]Later in the summing-up, when reminding the jury about P’s evidence, the judge referred to the differences between her second statement and her evidence at trial and summarised as follows what she said when the second statement was put to her (tr. 42G):
“Then the second statement was put to her … which says that there were several occasions of sexual intercourse. She said, ‘That statement, when it was made, was true, one particular incident I can clearly remember.’”
[37]Mr Edis submitted, first, that the judge was wrong to leave counts 24 and 25 to the jury at all. He conceded that the second statement fell within s.119(1) of the 2003 Act if it was inconsistent with P’s evidence at trial, but he argued that the judge did not give proper consideration to whether the statement could appropriately be admitted not just for the purpose of undermining P’s reliability but to stand as its own as hearsay evidence (and the sole decisive evidence) on counts 24 and 25, and that no rational jury, properly directed, could have found any reason to prefer the second statement to the first statement or to P’s evidence at trial. He said that the judge should have given consideration to factors of the kind mentioned in s.114(2) of the 2003 Act, albeit that is not directly applicable to admissibility under s.119, and that those factors militated strongly against admission of the statement.[38]In our judgment, there was a sound basis for the judge’s decision to leave counts 24 and 25 to the jury. Section 119(1) applied to P’s second statement and to rely on it was not, as Mr Edis at one point suggested, a misuse of the statutory power. The statement was put to P at the trial, she admitted that she had made it, and there were material inconsistencies between the statement and her evidence at trial as to the number of occasions of sexual intercourse she recollected. The statutory conditions for admissibility of the statement as evidence of the matters stated in it were met. The differences between the statement and P’s evidence at trial were not, however, so great as to make it unsafe for any reasonable jury to place reliance on the statement. What she said about the statement at the trial was far from a disavowal of the earlier statement or a complete change of evidence; indeed, at one point it got close to an affirmation of the statement. The defence was able to, and did, carry out a full cross-examination on the inconsistencies in P’s account at various times and on other matters concerning her reliability. It was for the jury to assess P’s overall reliability in these circumstances and in particular to decide whether to accept the second statement in preference to the account given in oral evidence or to the first statement. We do not agree that a rational jury, properly directed, could not properly accept the second statement. This was not a case in which the counts ought to have been withdrawn on the basis of the second limb of R v Galbraith (1981) 73 Cr App R 124.[39]We should mention that Mr Edis sought to draw a contrast between the judge’s approach to counts 17 and 18, where there arose a similar issue as to whether the evidence supported two counts or only one, and the approach he took to counts 24 and 25. It was submitted that the judge failed to explain why he directed an acquittal on count 18 or why he reached a different conclusion in respect of that count from that reached in respect of counts 24 and 25. No useful purpose is served, however, by considering whether the judge was right to direct an acquittal on count 18. It suffices that, for the reasons we have given, he was entitled to leave counts 24 and 25 to the jury.[40]The next part of Mr Edis’s argument was that if counts 24 and 25 were to be left to the jury, the judge needed to give the jury a much clearer and better tailored direction on how to approach those counts. The judge’s direction did not mention the material inconsistencies in P’s account over time (the nearest it got was the reference to “one of the two versions, or one of the three versions” – see para 35 above). It elided two different things, namely the effect of inconsistencies on a witness’s reliability and the status of an inconsistent statement as evidence of the matters stated in it. It did not give the jury the warning they needed that if they were to convict the appellant on counts 24 and 25 it had to be on the basis of P’s second statement, or the guidance they needed on how rationally they might rely on the second statement in preference to the first statement or P’s evidence at trial. The lack of specificity in the judge’s direction meant that the point may have escaped the jury altogether. When the judge returned to P’s evidence in his summary of the evidence, he did not remedy the failings in his earlier direction but compounded them by misrepresenting the terms of the second statement. He described it as saying that there were “several occasions” of sexual intercourse, whereas the tenor of the statement was that there was a campaign of incest. Watering down its contents in that way enhanced the possibility that a jury might accept that P had forgotten whether it was one event or “several” events.[41]We have to say that the judge’s direction on this issue was neither particularly elegant nor as detailed and tailored to the facts of the case as we would have expected. He should have given the jury more help. But the direction did touch adequately, if somewhat elliptically, on the evidential status of different accounts given by a witness, and it must have been clear to the jury that in relation to P the issue was whether they accepted what she said in the second statement (to which the judge made further, specific reference when summarising the evidence) and that if they did accept it they were entitled to act on it. The judge’s description of the second statement as saying that there were “several occasions” of sexual intercourse may have been a slight watering down of its import (it was put to P in cross-examination, in a passage quoted above, that it meant that sexual intercourse had taken place “often”), but the jury were well able to assess for themselves what the second statement meant and the judge’s observation cannot have done any damage to the defence case.[42]Accordingly, we reject this ground of challenge to the convictions on counts 24 and 25. That makes it unnecessary to trace through the impact that, in Mr Edis’s submission, a successful challenge on those counts would have had on the rest of the case, though we were not persuaded that the effect would have been to unravel the case against the appellant on the remaining counts: P’s evidence would have remained the same, there would still have been a count of sexual intercourse with her (count 23), and we do not think that the withdrawal of counts 24 and 25 would have required a fundamentally different approach towards the issue of cross-admissibility of the two complainants’ evidence.[43]Although Mr Edis appeared at one point to rely on the other grounds of appeal primarily as affecting the assessment of safety if this challenge to counts 24 and 25 were to succeed, rather than as grounds capable of succeeding independently of that challenge, we have gone on to give them careful consideration in their own right as distinct grounds of appeal.

Initial directions to the jury

[44]The conventional direction given to the jury at the start of a trial reminds them of the general rule that they must try the case on the evidence they hear in court and explains the application of that rule so far as it relates to the prohibition on discussion of the case with others and the carrying out of private research. As part of the direction on trying the case on the evidence, the jury may be warned against allowing emotion or sympathy to influence their verdict. The jury should also be told how to deal with any misconduct.[45]In the case of the appellant, a direction in broadly conventional form (though making no reference to the prohibition on private research or to putting emotion and sympathy to one side) was given on the first day of trial to the jury as originally sworn. Unfortunately the jury had to be discharged on the second day. A second jury was empanelled, consisting of 10 of the original jurors and 2 new members. The judge did not repeat the direction he had given to the first jury. This omission was not noticed by counsel at the time. The trial proceeded without any known problem.[46]Mr Edis submitted to us that a direction should have been given to the second jury and that, since one of its purposes is to ensure that problems are brought to the attention of the judge, the fact that no problem is known to have occurred in the course of the trial is not an answer to the failure to give the direction.[47]The judge might usefully have expanded the terms of the introductory direction he gave to the first jury, and he should have given a similar introductory direction to the second jury despite the heavy overlap in membership between it and the first jury. But given that 10 members of the second jury had received the introductory direction as members of the first jury, the lack of any concerns by counsel at the time, and the absence of the slightest indication that the failure to repeat the direction to the second jury, or any deficiency in the terms of the direction, caused any problem in practice, we do not think that this area of criticism of the judge can take the appellant anywhere.

General criticisms of the summing-up

[48]The judge’s summing-up was subjected by Mr Edis to numerous criticisms additional to those already considered in relation to counts 24 and 25. He submitted that a number of important directions were dealt with inadequately or were omitted altogether and that this was a “notebook” summing-up which to a large extent simply followed the sequence of the evidence, was too long and in parts confusing, and failed to put the defence case properly to the jury.[49]We deal below with the substantial points advanced. We do, however, have two introductory observations to make. First, it appears that the judge did not invite assistance from counsel in advance on the directions to be given, save for the direction on cross-admissibility. It would have been prudent for him to do so.[50]Secondly, in the course of the judge’s summing-up and in any event before the jury went out, counsel had the opportunity to raise any point with the judge, but Mr Edis did not suggest corrections or additions at the time. In so far as he considered the summing-up to be structurally defective, we can understand his taking the view that no useful purpose would be served by raising the matter with the judge. But if specific omissions or defects were noticed in the legal directions given, we would have expected them to be raised. If they were not noticed, that may tell one something about their significance in the particular context. In fact, the appeal in this case appears to be based in substantial part on the fruits of an exercise undertaken since the trial in trawling through the evidence and the summing-up in a search for points, a number of which were not noticed at the time.

Direction on specimen and specific counts

[51]Complaint is made of the judge’s direction to the jury in relation to the categorisation of counts as specimen counts or specific counts. He started by saying in relation to the generality of counts on the indictment that “that these were specimen counts” and explaining what was meant by a specimen count. In fact three counts (counts 9, 19 and 20) had been opened as specific counts, and count 23 became a specific count in the light of P’s evidence at trial that she remembered one specific occasion of sexual intercourse. In going through the individual counts the judge did refer to the specific nature of count 9. In relation to counts 19 and 20 he referred to P’s evidence of three instances of indecent assault (though whether that was her evidence was itself contentious) and said that “the prosecution have chosen to put only two to represent that conduct, not three, simply to keep the number of counts on the indictment to a small number”. Prosecution counsel intervened during the summing-up to make clear that count 23 was specific, but the judge described it soon afterwards as a specimen count. We accept that the judge’s exposition was generally a bit muddled.[52]The problem would have been avoided, and it would have been more helpful, if the jury had been provided with an abstract explaining which counts were specimen counts and which were specific counts. But the failure to adopt that course does not of itself undermine the safety of the convictions, and we are satisfied that the judge’s lack of clarity on this issue did not result in the jury being misled as to what they needed to be satisfied about in relation to each of the counts before they could convict the appellant on that count.

Direction on special measures evidence

[53]The evidence given by K and P was the subject of special measures directions: K gave evidence behind a screen, whilst P gave evidence by video-link from a remote location. Before K’s evidence, the judge gave the jury a direction in appropriate terms not to hold against the appellant the fact that she was giving evidence behind a screen. He said that he would repeat the direction, but in fact the summing-up contained no mention of it. Mr Edis accepted that there was no requirement to repeat the direction in the summing-up: see R v Brown and Grant [2004] EWCA Crim 1620. He made complaint, however, of the fact that the judge failed to give any direction at all in relation to P, either at the time when she gave evidence or in the summing-up. He submitted that the omission was all the more important because of the judge’s observation, in the context of his summary of the expert evidence, that P was “someone who is terrified of coming to court”, though special measures were granted in her case on the basis (later proved wrong) that she had learning difficulties, rather than because she feared attending court.[54]It is possible that the judge thought that his direction in relation to K sufficed; but since P was giving evidence by a different means we agree that he should have given a further direction in relation to her evidence and that, having omitted to give it at the time when she gave evidence, he should have covered it briefly in the summing-up. That the omission, though unfortunate, lacked practical significance is supported by the fact that counsel did not notice the omission at the time. In any event, we are satisfied that in the circumstances of this case the omission did not have any effect on the safety of the convictions. There is no realistic basis for the suggestion made by Mr Edis, if we understood him correctly, that the jury might have thought that P was giving evidence by video-link for fear of the appellant and might have held this against the appellant.

Direction on cross-admissibility

[55]The judge gave the jury a lengthy direction as to the extent, if at all, to which the evidence of one complainant could support that of the other complainant. The direction was in fairly conventional terms. The judge made clear that before there could be any question of mutual support the jury had to be sure that the complaints were truly independent of each other, that is to say that there was no question of the complainants having colluded or put their heads together to make or support false allegations against the appellant. Even where there had not been obvious collaboration, they had to be sure that there was no indirect or unconscious transfer of ideas, arising out of conversations between the complainants or through hearing of complaints made by the other. He directed the jury, in terms that were generous to the appellant, that if they found that the complaints were not truly independent of each other they should acquit the appellant of all counts on the indictment. He continued:
“So the real question is, Members of the Jury, are these complaints truly independent of each other and, when you are considering that particular question, bear in mind please, the mere fact some discussion took place, or might have taken place, between the two complainants, or that they might have heard of the nature of the other’s complaint, does not automatically mean that the complainants cannot be regarded as independent of each other ….”
[56]He went on to say that if the jury were sure that the complaints were truly independent of each other, they should ask themselves whether it was reasonably possible that these complainants independently making complaints of sexual abuse against the appellant could both be lying or mistaken; and in answering that question they would have to consider the degree of similarity between the allegations. He then identified a number of points of similarity to which the prosecution pointed as being significant: a course of conduct, sexual in nature, directed against the defendant’s own daughters; starting with indecent touching and progressing to full intercourse; at home addresses or at other addresses connected with the family or the defendant; initial touching of the vaginal area and mutual masturbation; the use of spermicide or foam in both cases; and the defendant being dressed in a dressing gown or kimono. As to dissimilarities, the judge mentioned that P, unlike K, did not refer to seeing the red bag and did refer to condoms being used in the course of the abuse.[57]Mr Edis submitted to us that it was not open to the jury in this case to find that the complaints were independent, and that the direction on cross-admissibility should therefore not have been given at all; or, if it was to be given, it should have been tailored much more specifically to the case, setting out the evidence of contact between the complainants and telling the jury that unless they were sure that the evidence of each complainant was unaffected by the other, or by the conduct of the mother, they should not treat is as supportive of the evidence of the other. The passage quoted above was confusing and unrealistic in a family case; and in any event there was clear evidence of collusion and of the absence of independence. Further, there were no specific valid similarities in the two sets of complaints, and there were many more differences between them than were referred to by the judge. Mr Edis’s written submissions to this court include a list of 14 differences. He accepted, however, that counsel were invited to contribute to the judge’s direction on this issue and that the additional differences now identified by him were not put forward at the time but were the result of further work since the trial.[58]We do not accept that the family context and the fact that there had been discussions between K and P, and between them and their mother, precluded a finding that the complaints were independent of each other. The judge’s comments on this accord with common sense. It was for the jury to decide whether the discussions that took place amounted or may have amounted to collusion. We do not agree that a finding of independence was not open to the jury on the evidence. Whilst it might have been better to draw together at this point the principal matters relied on by the defence in support of the case of collusion and fabrication, those matters were all covered in the course of the judge’s detailed review of the evidence and the jury can have been left in no doubt about the defence case in relation to them. In circumstances where the judge’s list of dissimilarities between the complaints reflected the items put forward by counsel, we do not think that the appellant can complain now about deficiencies in the list. In any event, the judge made clear to the jury that, if they were sure that there had been no collusion, it was for them to weigh up the similarities and differences between the complaints in assessing what, if any, support each complaint gave the other.

Direction on previous inconsistent statements

[59]We have considered already, when dealing with counts 24-25, the judge’s direction on previous inconsistent statements. Mr Edis made a wider point about the direction being unduly general and failing sufficiently to address the evidence in the case. Here again it might have been better, as it seems to us, to draw together some of the principal matters relied on by the defence, but they were all covered in the course of the judge’s detailed review of the evidence and the jury can have been in no doubt about the defence case in relation to them.

Makanjuola warning

[60]Mr Edis submitted that a warning of the kind referred to in R v Makanjuola [1995] 2 Cr App R 469 should have been given in respect of all three counts of incest left to the jury in respect of P, given the unusual facts of the case. We disagree. We do not know whether the judge was asked to give such a warning, but we are satisfied in any event that he was entitled in his discretion not to give one.

Count 21

[61]Count 21 charged the appellant with an indecent assault on P at The Downs. In her evidence at the trial, when asked if an indecent assault happened at that location, P said “It could have happened, but I cannot remember anything that happened there, I can’t recall anything that happened there”. It is now said, in the light of that and other answers, that there was no cogent evidence to support the appellant’s conviction on the count and that the factual basis of the conviction cannot be discerned from the summing-up. Mr Edis acknowledges, however, that the point was not noticed at the time and that no application to withdraw the count from the jury was made at any stage of the trial. He concedes, moreover, that any mistake in relation to the count has no wider consequences because the allegations of indecent assault were reflected in other counts. There is no ground of appeal relating specifically to count 21. It seems that the point is relied on more as fuelling concerns about the judge’s summing-up and the overall question of safety. We are not persuaded that the conviction on count 21 lacked a proper evidential basis or that there is any warrant for interfering with that conviction taken by itself.

Failure to put the defence case

[62]Mr Edis submitted that by giving a “notebook” summing-up, largely following the sequence of the evidence given at the trial, the judge failed to put the defence case properly to the jury. The main features of the defence case, which it is submitted should have been put in terms, have been set out at paras 21-23 above. Whilst it is accepted that the judge did refer to many of the pieces of evidence on which the defence relied, it is said that there was a lack of focus and that the judge made observations that blurred and concealed the submissions made. He also gave the jury an erroneously narrow definition of what they could treat as “evidence”, namely “what a witness tells you, either from the witness box, or a written statement that has been read out to you by agreement between the parties, or the formal admissions in this case”. That excluded the written, photographic and video evidence produced by the defence, as well as previous statements of witnesses who had given oral evidence which were, in respect of some of the counts, the only evidence there was. The judge ought, on the contrary, to have drawn specific attention to this material as part of the evidence in the case which might be of particular importance.[63]One can have some sympathy for the judge’s decision to sum up the facts in large part by tracking the sequence of the evidence given. The cross-examination of the witnesses, especially of K, had been detailed and lengthy, and the judge’s approach ensured that points to which importance might be attached by the defence were not omitted. Nevertheless a more structured approach would have provided a better focus, and the “notebook” approach made it all the more desirable to provide at some stage a separate summary of the defence case. We do not accept, however, that the summing-up was so deficient in these respects as to affect the safety of the convictions. The important areas of fact relied on by the defence were all covered and their significance was sufficiently clear. The jury will also have had the points fresh in their minds from the defence closing speech: one gets some insight about this from the judge’s remark, in the course of his direction on previous inconsistent statements, that “you will recall Mr Edis, in the course of this morning, went through those inconsistencies” (see para 35 above). There is, in our judgment, no risk that the jury failed to understand the nature of the defence case.

Conclusion on the conviction appeal

[64]We have covered at least the main points advanced by Mr Edis in his written and oral submissions. Although the grounds of appeal also refer to a failure to give a clear and tailored direction on character evidence, no specific criticism was advanced of the judge’s treatment of character. The appellant himself was of good character and the judge gave an appropriate direction about it. The written submissions contain some further, incidental criticisms of the judge’s summing-up, but none of them appears to us to merit separate treatment.[65]For the reasons given, we are satisfied that the matters advanced on the appellant’s behalf do not affect the safety of his conviction on any of the counts. The appeal against conviction is dismissed.

Sentence

[66]Only one, short matter arises in relation to sentence. It was noted by the Registrar, when considering the papers in the conviction appeal, that the sentences of 3 years’ imprisonment on counts 19 and 20 are unlawful: the maximum sentence for those offences of indecent assault was 2 years’ imprisonment, as the offences were committed before 16 September 1985 and the victim was under 16 years of age. The error was not noticed at the time of sentencing but, having been drawn to their attention by the Registrar, was accepted by both counsel appearing before us. We will correct it by giving leave to appeal against sentence on that point alone and allowing the appeal to the extent of reducing the sentence on counts 19 and 20 to 2 years’ imprisonment, concurrent, in each case. The total sentence of 10 years’ imprisonment is unaffected.

Cited in 1 later judgment