Johnson, R. v [2010] EWCA Crim 385

[2010] EWCA Crim 385Case No 2008/02680/D4IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT CARDIFF
HIS HONOUR JUDGE RICHARDS
T20077874
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2010
Before
LORD JUSTICE THOMASMR JUSTICE SAUNDERSMR JUSTICE STADLEN
Between
ReginaRespondentDavid Charles JohnsonAppellant
Miss T Lloyd-Nesling for AppellantMr M A Kelly for RespondentHearing Hearing dates: 2 December 2009
Judgment
[1]On 22 and 23 April 2008, the appellant was convicted at the Crown Court at Cardiff before His Honour Judge Richards and a jury on 17 counts of indecent assault on females, 7 counts of sexual activity with a child and a count of a rape of a child under 13. He was sentenced to 11 years imprisonment for the rape, less time on remand, with shorter concurrent sentences for the other offences. He appealed by leave of the Single Judge on a single issue as to the manner in which what was said to be hearsay evidence and evidence of bad character, gleaned from documents from social services files, was admitted and placed before the jury. At the conclusion of the hearing, we stated that we dismissed the appeal for reasons that we would give later; these are our reasons. The background facts[2]The case against the appellant, who was 65 at the date of conviction and a man of previous good character, was that, as a foster carer with his wife, he was engaged in the sexual abuse of four 14 to 15 year old girls who were placed with him and his wife in the period 1994 to 1996; they had grown up in Ebbw Vale and had had what the judge described as a troubled background, having experience of sex and drugs from their early teens. It was also alleged that in 2005, when the appellant’s three grandchildren went to live with him because their mother was ill, he abused and then raped his granddaughter, CJ, then aged 11. The police were told of this complaint in July 2007. An investigation then ensued during which the allegations of abuse against the four who had been with him in the period 1994 to 1996 came to light.[3]It is not, we think, necessary to set out the details of the allegations made by the four girls who alleged the appellant had abused them in the period 1994 to 1996. Each was aged between 13 and 14, each complained that the appellant had touched her sexually. The case of the appellant was that the allegations were all untrue; that the four girls each were of bad character, in that either they had taken or were taking drugs in the period 1994-6; one of them was also dishonest. The pre-trial hearings[4]A Plea and Case Management Hearing took place on 21 December 2007 in which an application was made for the disclosure of social services files of the Blaenau Gwent Borough Council; these were clearly of potential relevance, as the complainants in the period 1994-6 had been placed by social services with the appellant. Directions were given. On 21 January 2008 at a further directions hearing, the trial date was fixed for 7 April 2008 and a disclosure hearing was fixed before the judge who was to try the case. That eventually took place on 27 February 2008. At a subsequent hearing, the date of which was not available to us, the trial judge heard an advocate on behalf of the social services of the Blaenau Gwent Borough Council on claims for Public Interest Immunity in respect of many of the documents in the files.[5]On 19 March 2008 the judge ordered disclosure of approximately 20 documents. He ordered these be copied and provided to the advocate for the Crown and for the defence. No copy of the order was available. Sometime between 19 March and 2 April 2008, the 20 documents were provided to the advocates for the Crown and the defence.[6]On 2 April 2008 the advocate for the appellant faxed to the Crown Court, her instructing solicitors and the advocate for the prosecution, under cover of a fax sheet, a document entitled, “Skeleton Argument on behalf of the Defendant on Bad Character and Hearsay”. This was intended to operate as an application notice to adduce bad character and hearsay evidence on behalf of the appellant; there is nothing to suggest that the appellant’s solicitors served any application in accordance with the statutory provisions. The skeleton argument made clear that the appellant wished to rely on the documents as evidencing bad character on the basis that they showed that the complainants in respect of the allegations in 1994-6 had made false complaints of sexual abuse, had told lies and were using controlled drugs at the time the offences were said to have taken place. The skeleton argument did not identify the hearsay statements, but made clear that the makers of the statements could not be traced (where identified) or identified. We were told that it did not identify the hearsay statements as the document was sent by fax. This was no excuse for failing to make clear what the statements were.[7]Both advocates then discussed putting before the jury the documentation; it was agreed between them that the documents should go before the jury as hearsay evidence and evidence of bad character.

The trial

[8]On the first day of the trial, 7 April 2008, the judge was told by the advocates that the issue of bad character and hearsay had been resolved. He was told nothing more; it is important to note that he was not told that the advocates had agreed that the documents were to be put before the jury. The prosecution called the complainants and other witnesses over the course of several days. The complainants were cross-examined on the basis of the 20 documents; some of the matters set out were, when put orally, accepted by the complainants. Some were denied. The matters put included allegations of false complaints, drug use, dishonesty and collusion. One of the documents to which we refer at paragraph 12 below illustrates their general nature.[9]The appellant, his wife and two other witnesses were then called by the defence and some statements read.[10]After the last defence witness had finished giving evidence, the defence raised with the judge for the first time the way in which the matters set out in the 20 documents from the social services files on which she wished to rely should be dealt with. The judge made clear that the defence and prosecution should put the matters into a schedule, setting out what had been accepted, what had been denied and where a different account had been given in evidence, the gist of that account. Unbeknown to the judge, the advocates discussed his order and agreed that they would not follow it and produce a schedule; the advocate for the Crown considered that it was better for the Crown’s case if the jury saw the actual documents. They agreed, again contrary to the judge’s order, that the documents would be put before the jury.[11]On the following morning, the defence advocate, without telling the judge that his order had been disregarded and that both advocates had been that the 20 documents be put before the jury, simply handed to the judge and to the jury a bundle of documents, telling them that they were extracts from Social Security files. They were in fact the 20 documents that had been disclosed on the order of the judge. The defence advocate told the jury that the jury might recognise some of the passages as they had been put to the witnesses; some had not been. She said that it was fair that they should have the whole document, even if only one passage had been put to the witness. She then proceeded to start to read part of the documents to the jury. She then read the second document.[12]The third document which she read to the jury was a note of a telephone call on 6 April 1995 in which it was recorded that the mother of one of the complainants had taken her to the police station as that complainant had taken £11 to buy drugs. It recorded the mother’s concern about the effect drugs were having on the life of that complainant. The judge interposed to tell the jury that they should be careful, as this was only a short record made by social services and they had not heard from the mother. He told the jury that the documents had been made available to the defence so that they knew what information was available. It was not sworn evidence and they might be true or they might not. He then asked the defence advocate why these matters had not been put into the agreed schedule he had ordered.[13]She then for the first time explained to the judge that she had discussed the matter the previous evening with the advocate for the Crown; they had taken the view that it was more appropriate that the jury should see the whole document.[14]An exchange between the judge and the defence advocate then took place in the presence of the jury during which the judge criticised her for using what she knew to be private social services files in that way. The defence advocate then read more of the documents. The judge then made clear to her that she should have submitted the documents to the court for its ruling and not persuaded the advocate for the Crown to agree to her reading them. He observed that it was incredible that she had acted as she did. She knew that social services always objected to the circulation of documents to which public interest immunity applied. She was then permitted to read the remainder of the documents to the jury, save one over which there was a dispute.[15]When she had finished reading all but the last document, there was then a discussion in the absence of the jury. It became clear that: i) The judge was unaware that the defence had intended to make an application under the hearsay or bad character provisions of the Act. The skeleton argument faxed to the court (as set out in paragraph 6) had not been included in the judge’s papers. He made it clear that had he been asked to rule on any application, he would have had to consider the PII position before the documents were put before the jury. ii) The advocate for the Crown had agreed to the defence advocate reading the documents as he did not want a schedule that simply recorded a short part of the document, but wanted the jury to see the full document so that they could see the statement in its context.[16]The judge made clear that he deprecated what had happened, but, as it had happened, the question he wished to discuss was the directions to be given to the jury. The defence advocate asked the judge to give an appropriate hearsay and bad character direction and to say something to mitigate what she contended was the judge’s unjustified criticism of her conduct. The advocate for the Crown asked the judge to blame him as well for what had happened, as it was not entirely the defence advocate’s fault.[17]The jury were brought back into court. The judge told them that he had been unaware that they were about to receive the bundle of social services documents. If he had been, he would have taken action to protect the confidentiality of the files, as private individuals could be harmed if documents were spread more widely than they should. He then explained the process of disclosure and gave them a direction as to how they should treat the documents. He then added:
“Now you may have thought I was being rather harsh on [the defence advocate]. I do take the view... that I do not think that these documents should have been dealt with in this way, but in fairness to [the defence advocate], it appears that she did make an application which was never heard by the court and I did not consider it in detail because I was never called upon to rule on it... Because it was never ruled on, I had assumed it would not be put before the court, but she is certainly not to be criticised for not at least making that application. The fact that it was not put before the court is because the prosecution agreed to all these documents going before you. I do not think they should have, but there it is you have them and it is important now that you should treat them in the right way...”
[18]The judge then gave a direction as to the use the jury should make of the documents. He concluded by saying that he might have been “rather overhasty in the public interest” in expressing the views he had about the way in which the documents were placed before them. The one further document from the social services file was read to the jury in part. The advocates then made their closing speeches and the judge summed the case up.[19]The grounds of the appeal related to(a) the way in which the judge had criticised the defence advocate in the presence of the jury and(b) to the directions given to the jury in relation to the way the statements contained in the documents should be treated by them as hearsay evidence and as bad character evidence.

(a) The criticism of the appellant’s advocate

[20]What happened in this trial in relation to the social security documents should not have happened. It is important, in our view, that in any case where it is sought to put material from social security files before the jury under the bad character or hearsay provisions of the CJA 2003, that an application is made to the court and the judge gives a clear ruling on the matter. It is not for advocates to make agreements that are not put before the court for its decision: i) Bad character evidence of a person who is not a defendant can be admitted by agreement; s.100 of the Criminal Justice Act 2003 (CJA 2003) provides: “In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if — .... (c) all parties to the proceedings agree to the evidence being admissible. (c) all parties to the proceedings agree to the evidence being admissible. ii) Nor is the leave of the court required; s.100 provides by (4): “Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.” iii) Similarly hearsay evidence is admissible if the parties agree; s.114(1) of the CJA 2003 provides “In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— (c) all parties to the proceedings agree to it being admissible” iv) However, when an order is made for the disclosure of matters in social security files relating to a person who is not a defendant, the documents released by the judge to the advocate and solicitor for a defendant are ordinarily released only for the purpose of enabling the advocate and solicitor to take instructions on the matters from the defendant (or witnesses to be called) and to put the matters contained in the documents to the witnesses in the course of cross-examination. Their provision to the Crown is similarly limited. v) The judge’s order does not entitle either the Crown or the defence to use the documents in any other way, unless the judge makes an express order. It does not permit them to put the documents before the jury without a further order. That is because the documents held by social services are generally subject to public interest immunity and the rights both of the social services and of the persons who are the subject of the documentation must be respected. The disclosure ordered will ordinarily therefore be in the terms described, as that will in the usual case be seen as properly balancing the respective rights of the defence on the one hand and social services and the persons who are the subject of the documentation on the other hand. vi) There may be cases where it is considered necessary by the defence or the Crown that wider use be made of the documentation or information. In such a case it is necessary for the defence or the Crown to apply to the judge for an order to extend the use which may be made. The judge will then consider, as he did on the original application, the balance between the respective interests. If, for example, there is an application to put a document before the jury on the basis that its contents are admissible under the hearsay provisions of the CJA 2003, then the judge will have to consider the contents of the entire document to see what other matters are contained in the document, whether there should be redactions or whether there are other ways in which the information can be placed before the jury. This requires the judge to make a careful balance of the respective interests; this cannot be circumvented by agreement between the advocates. An express order is required.[21]We would add that it is in any event essential, where hearsay or bad character evidence will be put before the jury by agreement and the order of the court is not required (in contradistinction to the position in this case), that the court is informed at the outset of the trial what has been agreed and how the advocates propose the agreed evidence is to be placed before the jury. If an agreement is made during the trial, then the judge should be told immediately after the agreement. This is in the interests of good trial management, so that the judge can consider the advocate’s proposals as to the timing and manner of putting the evidence before the jury and the directions of law that are needed in the summing up.[22]In the present case therefore, the agreement of the Crown and the defence that the 20 documents should be admitted as hearsay evidence of bad character and be put before the jury did not entitle the defence to put them before the jury as a further order of the judge was required before this could be done. The judge had made an order that a schedule be produced – one means of ensuring that the relevant matters were before the jury without other confidential matters being placed before them. The advocates were not entitled to disregard that order. They should have made a further application to the judge in the absence of the jury.[23]In the circumstances, the judge was therefore entitled to criticise the conduct of the advocates. At first that criticism was directed at the defence advocate and was made in the presence of the jury. Although her conduct merited criticism, it was not entirely fair that the criticism should have been directed at her alone; it would have been better if the matter had been explored in the absence of the jury. When such an exploration occurred, it emerged, as we have set out, that the advocate for the Crown had agreed to the course put forward by the defence advocate for his own reasons.[24]What is important to the question as to whether what happened in the jury’s presence affected the fairness of the proceedings and the ability of the jury properly to consider the defence case, is to note that the judge subsequently told the jury what the true position was in the passage we have set out. He told them that he may have been harsh and the defence advocate was not to be criticised.[25]Given all the circumstances, we understand why the judge was critical of the defence advocate; his order had been disregarded without any explanation to him and confidential documents put before the jury without his approval. The defence advocate acted wrongly without telling the judge what had happened and seeking his further decision; some criticism of her conduct was merited. Although it would have been better first to have explored what had happened in the absence of the jury, the judge subsequently explained the position to the jury. We therefore did not consider that the judge’s initial severe criticism of the defence advocate in any way affected the fairness of the trial or the safety of the conviction. In the light of the judge’s subsequent explanation, the jury would therefore not have held that initial severe criticism against the appellant. This ground of appeal therefore failed. (b) The direction on hearsay and bad character.[26]In his summing up to the jury, the judge referred to the way in which the social services documents had been placed before the jury and told them:
“You must give it the weight that you think proper. If you find material in there which you find compelling and acceptable and something to which you should give weight to, then you must give that weight to it. It is evidence in the case, albeit not evidence given from the witness box. Although it is for you to decide what weight, if any you attach to the hearsay evidence, you should, however, as I have already sought to emphasise, examine it with particular care, bearing well in mind that it does have certain limitations which I shall now draw to your attention. I have already done that to some extent, but I shall give you this formal direction.”
[27]The judge then gave them a direction very much following the model direction provided by the Judicial Studies Board. He also gave them directions in relation to the evidence of the bad character of the complainants; he told them to take it into account in assessing the truth of what was said by them; he told them to examine the evidence of the complainants with particular care in the light of the statements in the documents. In the course of his review of the evidence of each of the complainants, the judge then reminded the jury of the relevant matters in the 20 documents. When reviewing the evidence, he reminded them of the evidence of bad character; for example in relation to the first complainant, he reminded them of the evidence that she was high on drugs when she had originally made allegations against the appellant, that she had had a heroin addiction, that she had made an allegation of sexual abuse against another person and then withdrawn it, her previous conviction, and the matters contained in the third social services document which we have described in paragraph 12.[28]It was powerfully submitted on behalf of the appellant that the statements contained in the 20 documents were important as they went to the general credibility of the complainants in relation to the period 1994-6, to whether there had been collusion between them and to whether they had made previous inconsistent statements. As the statements in the 20 documents were relied on for the truth of their contents, it was important that the judge should give the jury a clear and careful direction as to how the jury should treat the evidence. The judge had not given an accurate direction when he told them how to treat the documents immediately after they had been read. By referring back to that direction in his summing up, he had carried forward the inaccuracies. Finally it was submitted that the judge had also failed to give them clear directions in relation to the importance of the documents and on the effect of the evidence of bad character.[29]We accept that the direction in relation to hearsay given immediately after the documents had been read was not as clear as it might have been; the judge did not draw a clear distinction between the way in which the statements contained in the documents had been used in cross examination and their evidential status once admitted under the hearsay provisions of the CJA 2003. He may have given them the impression that the “real evidence” was the evidence of the witnesses that had given evidence from the witness box. However, it is clear in our view that the direction he gave them during his summing up was clear and full and it is that direction which the jury would have had in mind when they retired to consider their verdict. His reference back to what he had told them earlier, read in context, was not a reference to the substance of what he had said, but a reference to the fact he was returning to the issue. He made it clear that the direction he was then giving was the direction that they should apply.[30]We also consider that the judge made very clear to the jury the way in which they should treat the evidence of bad character and reminded them of the details of it in relation to each witness. There can be no doubt that the jury had well in mind the importance of the evidence of bad character of the complainants and the details they had to examine in determining whether they were sure that the allegations of sexual abuse had in fact occurred.[31]In our judgment, the criticisms made of the directions given to the jury could not on analysis be sustained. This ground of appeal failed.

Conclusion

[32]We also reviewed the safety of the conviction on the basis of the criticisms made of the conduct of the trial and the summing up. We were satisfied that there was no basis for challenging the safety of the convictions. We therefore dismissed the appeal.