C & Anor, R. v [2010] EWCA Crim 72

[2010] EWCA Crim 72Case No 2008/06815Case No 2009/02259IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE STATMAN
T2007/7465
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/01/2010
Before
LORD JUSTICE HOOPERMR JUSTICE WYN WILLIAMSRECORDER OF CROYDON(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
REGINARespondentCFirst AppellantTSecond Appellant
Eloise Marshall & Samantha Hatt for RespondentIan Jobling for First AppellantLord Gifford QC & Anthony Katz for Second AppellantHearing Hearing dates: 14 & 15 January 2010
Judgment

Introduction

[1]This is the judgment of the court to which all members have contributed.[2]On 7 November 2008, at the Crown Court at Maidstone, C was convicted of three counts of committing gross indecency with a child (counts 4, 16 & 17) one count of inciting a girl under the age of 16 to commit incest (count 11) three counts of rape (counts 14, 15 & 18) and one count of indecent assault (count 19). On the same date T was convicted of one offence of rape (count 10). On January 2009 the trial judge, HHJ Statman, sentenced C to life imprisonment in respect of the counts of rape. The Learned Judge specified that the minimum term to be served was 9 years and 6 months and that the time spent in custody on remand, namely 89 days, should count towards that minimum term. Concurrent determinate sentences were imposed for the other offences of which C was convicted. T was sentenced to a term of 8 years’ imprisonment for the offence of rape.[3]Both C and T appeal against their convictions with the leave of the single judge.[4]C and T were indicted upon an indictment containing a total of 31 counts. Another man, L, the brother of C, was also charged upon this indictment. He was charged with eleven counts of indecency with a child, eight counts of rape, four counts of indecent assault and one count of sexual assault upon a child under the age of thirteen. He was convicted of all the counts against him save for two counts of rape. The offences committed by L were against five young girls, L, C, V, R and J. The offences against L were committed when she was between the ages of five and eight, the offences against C were committed when she was aged between four and seven, the offence against V was committed when she was between six and seven, the offences against R were committed when she was between the ages of four and ten and the offences against J were committed when she was between the ages of nine and twelve. L was the uncle of all his victims.[5]L was also sentenced to life imprisonment for the offences of rape and he received determinate terms of imprisonment for the other offences. He has not appealed against his convictions.[6]Some of the offences of which C was convicted were committed jointly with L. We will detail those offences in the next section of this judgment. The single count upon which T was convicted was allegedly committed with L.[7]C was convicted of offences against L, C and H. They were his daughters. Count 4 was a joint charge with L. It alleged that when L was aged between five and eight L and C committed the offence of indecency with a child by tying L to a chair at shop premises to which L had access and then forcing her to have oral sex with L. It was a specimen count. Count 11 was charged against C alone. It alleged that he incited the offence of incest by inciting his son D to have sexual intercourse with L. Count 14 jointly charged L and C with the rape of C. The allegation was that L had sex with C at the shop premises to which we have referred and when C was holding her on a chair. Count 15 was also a joint charge of rape against the two men. This charge alleged that C had sex with C while L was holding her on a chair at the shop premises. Counts 16, 17 and 18 were offences committed by C against C within the bedroom of his own home. Count 16 alleged that C had made C engage in oral sex with him; count 17 alleged that he had forced her to masturbate him and count 18 alleged that he had raped her. Counts 14 to 18 were all specimen counts. C was convicted of a single count relating to H. Count 19 alleged that at a time when H was under the age of fourteen C touched her vagina and lay on top of her.[8]C appeals against all his convictions. He has advanced three grounds of appeal.[9]The first ground of appeal is that the proceedings against him should have been stayed as an abuse of process. He advances this ground, primarily, by reason of the fact that he was tried for and acquitted of sexual offences against his daughter L and his son D in 1999.[10]In summary, the events leading to the prosecution in 1999 were as follows. From about 1992 the social services department of the relevant local authority became increasingly involved with the family of C. C was married to a woman called F and they had 6 children; D and his younger brother, L, C, H and another girl, S. During the 1990s social services became increasingly concerned about the physical neglect of those children. In 1998 a decision was made to take four of the children into care; they were D, L, C and H. Following their removal from the family setting D, L and C made disclosures to their foster carers which suggested that they had been the victims of sexual abuse. Following these disclosures D, L and C were interviewed and a video recording made of the interviews (ABE interviews). D and L made suggestions of sexual abuse against both their parents; C’s interview was much more equivocal.[11]It was on the strength of these interviews that a prosecution was instigated in 1999. The persons charged were C, F, L and a man called T. Ultimately those four persons stood trial on an indictment containing 21 counts. C was charged with offences of indecent assault against L and D, offences of incest against L and offences of buggery against D. He was also charged with child cruelty in relation to both children. He was not charged with any offence against C or H. The charges of a sexual nature brought against him depended, essentially, upon the ABE interviews of L and D. The charges of child cruelty related to his alleged neglect of L and D.[12]At trial the Learned Trial Judge ruled the ABE interviews inadmissible. The case against all Defendants collapsed and there were directed verdicts of not guilty as we understand it.[13]In June 2005 J made a complaint of sexual assault against L. In 2006 R complained about his conduct towards her. A police investigation began and it was discovered that a complaint had already been made by V. In July 2007 L was arrested and interviewed under caution. A story was published in the local press and, as a consequence, L contacted the police. In the summer of 2007 L was aged seventeen. She had been nearly nine at the time that she had been interviewed in 1999. L was interviewed again and her interview was video recorded; this was a second ABE interview. She made many and detailed disclosures which were to found the counts on the 2008 indictment which related not just to her but also those counts which related to C and H. That was so since, in summary, she claimed to have witnessed the sexual offences which were alleged to have occurred against her sisters C and H. Further she disclosed that C had incited the sexual intercourse between D and her.[14]The indictment upon which C was tried in 2008 contained two counts of sexual misbehaviour by C against L. They were counts 4 and 11. Ms Marshall, for the prosecution, submitted to us that those counts had been chosen with care. They had been chosen, deliberately, to relate to conduct which had been disclosed by L for the first time in 2007. The conduct alleged in counts 4 and 11 had never been disclosed by L prior to her interview in 2007.[15]Mr Jobling, Counsel for C, does not suggest that the counts laid against C in 2008 were based upon disclosures made by L prior to 2007. In other words he accepts that C could not have been tried upon these allegations in 1999. While, therefore, there were allegations of sexual misconduct laid against C at his trial in 1999 they were not the same allegations as those which were made against him in 2008.[16]The indictment in 1999 contained no allegations against C relating to his daughters C and H. The allegations contained within the 2008 indictment relating to C and H were allegations founded solely upon disclosures which were made after the conclusion of the trial in 1999.[17]At the commencement of the trial before HHJ Statman Mr Jobling submitted that the indictment should be stayed as an abuse of process. It is of some note that C did not plead autrefois acquit.[18]Before us Mr Jobling accepted that C could not rely upon the principle autrefois acquit. He nonetheless submitted that it was oppressive to prosecute him in 1999 in reliance on the evidence of L when she was a child and then prosecution him again in reliance upon her evidence when she was considerably older. It is sufficient to say that, on the facts of this case, this is a hopeless argument. The disclosures made by L in 2007 were far more wide ranging; further they were disclosures of the commission of very serious offences which had not, hitherto, been disclosed.[19]Even if it is not correct to characterise the argument as hopeless, Mr Jobling cannot possibly show that the decision of the trial judge not to stay the proceedings was a decision which a reasonable trial judge could not reach.[20]In our judgment there is nothing in the first ground of appeal which leads us to the view that the convictions recorded against C should be quashed.[21]Before HHJ Statman Mr Jobling had submitted that the prosecution should have applied to the Court of Appeal under the provision of the Criminal Justice Act 2003 which permit, in certain limited circumstances, a retrial of a person who has been acquitted. He suggested that the failure of the prosecution to take that course itself amounted to an abuse of process. During the course of the oral debate before us Mr Jobling rightly abandoned that point. To repeat, therefore, we are firmly of the view that the first ground of appeal should be rejected.[22]The second ground of appeal advanced on behalf of C is that HHJ Statman erred in law in permitting the prosecution to adduce hearsay evidence from Mrs F.. After C was taken into care, she was placed for adoption. In due course, she was adopted by Mrs F.. Over a period of some years C was said to have made disclosures to Mrs F. about the conduct of C towards her. Mrs F. made a statement to the police in which she set out what her adopted daughter had told her. In that statement, however, she also said that she would not permit C to be interviewed about those disclosures or give evidence about her experiences. In the view of Mrs F., the giving of evidence, in particular, was likely to have a detrimental effect on what she described as C’s fragile mental state.[23]The substance of Mrs F.’s evidence (as admitted by the judge) was as follows. C had first gone to live with Mrs F. when she was 6 years and 8 months old. Mrs F. described her as being distraught at that time. She was fearful about going upstairs and she had limited language. Shortly after the time that C went to live with Mrs F. she divulged to her that C had “get me, hurt me, hurt minny.” At a later date when C was about 7¾ she repeated that allegation adding on this occasion that she had gone upstairs and that L had hurt her and hurt her minny as well. Mrs F. also gave evidence that in June 2007, at an occasion arranged especially for adoptive parents, C told her that when she was older she wanted to meet F (her birth mother) but she did not want to meet her father. She added that he had raped her got on her and had sex with her and that that she hated him. At the time of this disclosure C was 13.[24]The prosecution took the view at trial and maintained the view before us that Mrs F.’s evidence was an important part of its case. Ms Marshall submitted that her evidence should be admitted since it supported the evidence given by L that C and L had perpetrated abuse upon C; it was further submitted that the evidence supported the credibility of L in relation to all the evidence which she had given. Counsel for C and L opposed the application to admit Mrs F.’s evidence. The main points made by them in opposition to the application were that C was capable of giving direct evidence of her complaints and that if the hearsay evidence was given in substitution for C’s direct evidence there would be no proper way of testing its truthfulness.[25]The application to admit Mrs F.’s evidence was heard after L had completed her evidence. L gave her evidence between Wednesday 24 September and 1 October 2008. The application to admit the hearsay evidence was heard on 1 October. At the conclusion of oral submissions HHJ Statman ruled that Mrs F.’s evidence should be admitted. Relying upon section 114(1)(d) Criminal Justice Act 2003, he concluded that it was in the interests of justice for the evidence to be admitted. His view was that the disadvantage to the Defendants which would flow from their inability to cross-examine C about her allegations would be minimised by suitable directions in his summing-up.[26]As it happens at or about the time when Counsel were engaged in the argument relating to the application to adduce hearsay evidence information was coming to light that C had indicated to Mrs F. that she would be prepared to give evidence – or, at least that she was prepared to go to court. It is to Mrs F.'s credit that she volunteered that information to the police and/or the prosecuting authorities.[27]When Mr Jobling became aware of this information and, perhaps more importantly, when he had had time to consider its significance he renewed his opposition to the admission of Mrs F.'s hearsay evidence. We have the transcript of the relevant exchanges which took place between Counsel and the learned judge on 6 October 2008 and, also, the judge’s ruling. Essentially Mr Jobling made the point that there was every reason to believe that C was a willing witness. Despite this submission HHJ Statman maintained his view that the hearsay evidence should be admitted. The result was that C did not give evidence at the trial. Mrs F. gave evidence along the lines we have summarised above. She was not persuaded to modify her evidence in cross-examination although Counsel were able to elicit that Mrs F.’s evidence was given entirely from memory; she had made no contemporaneous notes of what C had said.[28]The circumstances in which hearsay evidence can be adduced in a criminal case are set out in a number of provisions contained within Chapter 2 of the Criminal Justice Act 2003. Section 114 provides:- “(1) 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 – a)….. b)….. c)….. d) the court is satisfied that it is in the interest of justice to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection 1(d) the court must have regard to the following factors (and to any others it considers relevant) – a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; b) whatever evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; d) the circumstances in which the statement was made; e) how reliable the nature of the statement appears to be; f) how reliable the evidence of the making of the statement appears to be; g) whether oral evidence of the matter stated can be given, and if not, why it cannot; h) the amount of difficulty involved in challenging the statement; i) the extent to which the difficulty would be likely to prejudice the party facing it. Section 116 is in the following terms:- “1. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matters stated if – a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter; b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and c) any of the five conditions mentioned in subsection (2) is satisfied. 2. The conditions are – a) that the relevant person is dead; b) that the relevant person is unfit to be a witness because of his bodily or mental condition; c) the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; d) that the relevant person cannot be found or such steps as it is reasonably practicable to take to find him have been taken; e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.”[29]It was common ground at trial and it is common ground in this appeal that the conditions laid down in section 116(2) could not be satisfied in relation to C. Accordingly Mrs F’s evidence could not be admitted under section 116.[30]As we have said the trial judge admitted her evidence under section 114(1)(d). In R v Z [2009] EWCA Crim 20 Stanley Burnton LJ giving the judgment of the court said this about the relationship between sections 114 and 116. “19. However, section 114(1)(d) must be construed and applied in its statutory context. In particular, in a case such as the present, when 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 witness of primary fact in that case]….. 20. In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down in 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 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 as in Isichei [2006] EWCA Crim 1815, where it was admitted “as part of the story of a common sense series of events, the one leading from the other” and Xhabri [2005] EWCA Crim 3135 [2006] 1 Cr.App.R 26. Both of those were very different cases from the present: the hearsay statements admitted were part of the incidents that were the subject of the trials.[31]A similar approach has been taken by another constitution of this court in the very recent decision in Maxwell [2009] EWCA Crim 2552.[32]In this case the primary source of evidence against both C and L was the eye witness evidence of L. The evidence of Mrs F. provided support for the evidence of L particularly as it related to the counts involving C (counts 14 to 18). The hearsay evidence, on its own, would not have been sufficient to prove the allegations in counts 14 to 18. We say that since, in our judgment, the evidence was too generalised and non-specific. However, it was evidence which, if accepted, tended to support the evidence given by L.[33]The admission of Mrs F.’s evidence must also be seen against the context of the medical evidence given by Dr Herring. There was very little, if any, room for doubt on her evidence that C had been subject to sexual abuse – see paragraph 44 below. The issue for the jury was whether the appellant and/or his brother were the perpetrators.[34]As we have said HHJ Statman first ruled in relation to the hearsay evidence on 1 October 2008. We have a transcript of what he said. It is clear beyond argument that the learned judge realised that his task was to decide whether he was satisfied that it was in the interests of justice to admit Mrs F.'s evidence and that in reaching that conclusion he was bound to have regard to the various matters referred to in section 114(2) of the 2003 Act. However, it does not seem to us that he identified and then focussed upon those sub-paragraphs of section 114(2) which were of obvious importance in the instant case. We refer to sub-paragraphs (e), (g) and (h).[35]In our judgment the judge did not consider sufficiently the issue of C’s reliability (sub-paragraph (e)). We accept that he identified it as an issue to be considered. However, it does not seem to us that he properly considered the difficulties inherent in making a judgment about the reliability of a young girl who had said nothing which was obviously incriminating against C in her ABE interview in 1999 and who had not been subjected to the discipline of making detailed disclosures under proper conditions (in a second ABE interview) in 2007 or 2008. While there may have been material by which to judge the reliability of C (as Ms Marshall pointed out in her submissions to us) the judge appears not to have given that material any specific consideration when assessing whether C’s account to her adoptive mother was reliable.[36]It also seems to us that the judge failed to consider sufficiently sub-paragraph (g). Where, as here, the witness of primary fact was identified and not precluded from giving evidence for any of the reasons set out in section 116 it was necessary for the judge to scrutinise with considerable care the reasons why it was being suggested the witness could not give evidence. We shall return to this point in detail in a moment.[37]It is clear that the judge recognised that the defence would find it difficult to challenge the evidence of Mrs F. (sub-paragraph (h)). In fact it is difficult to see how any effective challenge could be mounted to what she had to say other than to assert that she was mistaken in her recollection. We are not convinced that the learned judge gave proper weight to this difficulty.[38]It is also apparent that the judge did not consider the relationship between 114(1)(d) and section 116. It is clear that the relationship between the two sections must be considered with care. Yet there is nothing in the transcript to suggest that the judge considered the relationship between these two sections at all.[39]In one sense that is not surprising. The decision in Z was handed down on 23 January 2009 i.e. some weeks after the judge had made his ruling. Admittedly the decision in Z takes as its starting point as an earlier decision of this court in O’Hare but we do not criticise the Learned Judge for failing to consider the relationship between sections 114 and 116, particularly since, so far as we are aware, Counsel did not make submissions before him about the relationship between these two sections. However in failing to grapple with the relationship between the two sections the judge fell into error. Had he considered the two sections together he would, inevitably, have focussed his attention to a much greater extent upon the reasons advanced in support of the proposition that C’s evidence could not be given first hand (section 114(2)(g)).[40]The judgment of this court in Z makes it clear that section 114(1)(d) is to be cautiously applied since otherwise the conditions laid down by Parliament in section 116 will be circumvented. That is not to say that section 114(d) can never be invoked when the criteria laid down in section 116 cannot be met. To repeat, however, a cautious approach is necessary when consideration is being given to the admission of hearsay evidence when a witness of primary fact is alive and well and, on the face of it, able to give oral evidence to the court. In our judgment this approach must be followed strictly when, as here, the witness of primary fact is an alleged victim of serious crimes.[41]In the instant case a proper application of the statutory criteria in section 114(2) and the principle in Z leads us to the conclusion that the hearsay evidence of Mrs F. should not have been admitted. At the time this application was made to the judge C was aged fifteen. Obviously there was no reason relating to her age why she could not give oral evidence at court. We appreciate, of course, that Mrs F. appeared to have strongly held and genuine views that giving evidence at a criminal trial would have a detrimental impact upon C’s wellbeing. So far as we can judge, however, no particular steps were taken to ascertain whether Mrs F.'s views were correct. No request was made to her to permit an examination of C by a suitably qualified professional. All that occurred was that a police officer or police officers discussed with her the desirability of C giving evidence.[42]Neither the prosecuting authorities nor the learned judge took steps to test Mrs F.'s resolve. She was not asked to make a statement dealing specifically and in detail with the reasons why she objected to C giving evidence. She was not asked to give evidence before the learned judge to explain why she objected to C giving evidence. The position seems to have been, throughout, that the prosecuting authorities accepted that Mrs F., in effect, had the right to decide whether or not C gave evidence.[43]No one from the prosecuting authorities took any steps towards asking C directly what she felt about giving evidence. We appreciate that the authorities would wish to act with a degree of caution and that Mrs F. was, apparently, preventing anyone from speaking directly with C. Nonetheless, we find it hard to accept that a suitably qualified professional could not have persuaded Mrs F. that it was appropriate for C to be spoken to directly about the issue of giving evidence – or at least that a suitably qualified professional should not have been appointed to make the attempt.[44]We have reached the conclusion that in the circumstances presented to the learned judge he should not have admitted the hearsay evidence of Mrs F.. Further, the learned judge was wrong to maintain his ruling on 6 October 2008 when he had received an indication that C might be prepared to give evidence. At the very least, in our judgment, the judge should have directed that steps be taken to ascertain C’s true view before he reached a concluded view upon whether the hearsay evidence should be admitted.[45]Did the admission of the hearsay evidence render the convictions recorded against C unsafe? We asked Ms Marshall to address this issue specifically at the close of her submissions and she submitted that it did not. In his reply, Mr Jobling said nothing in response to Ms Marshall’s submissions on this point. We are driven to the conclusion that his silence on this point speaks volumes. The reality is that there was a very powerful case against C and we have no doubt that he would have been convicted upon all counts even in the absence of Mrs F.’s evidence.[46]L was critical to the case for the prosecution on all counts faced by C. She told the jury that she had witnessed all the acts of sexual abuse of which C was convicted. D, C and H did not give evidence about the abuse upon them. As the learned judge told the jury the key issue for their consideration when considering the case of C was whether L was telling the truth. The jury must have concluded that L was a truthful witness. In his case there was no room for mistake on the part of L. She was either truthful, as alleged by the Crown, or a liar and fantasist as alleged by the W. brothers.[47]Quite independently of the evidence of Mrs F. there was powerful support for L’s evidence. First, there was compelling medical evidence which supported L’s account that C had been the subject of very serious abuse at the hands of someone. The evidence came from Dr. Herring a distinguished expert in the field of child abuse. She had examined C in 1999 before the first trial i.e. when she was about 6. Dr. Herring discovered that C had very likely been subjected to repeated penetration of her vagina most probably by a penis or something similar to a penis. She was able to reach that view because there was a significant loss of hymenal rim width. In Dr. Herring’s words “the rim was worn away, particularly in the posterior position.” There was no history of accidental damage which could begin to explain such a finding.[48]Second, in our judgment, the fact of C’ previous conviction for indecent assault upon a young girl and the circumstances of the assault were properly admitted before the jury (see paragraphs 49 to 54 below). The conviction and the circumstances in which the crime was committed demonstrated a propensity on the part of C to commit sexual offences against young female children. The evidence of the previous conviction and the circumstances in which the crime was committed provided support for L’s assertion that C had committed the crimes alleged on the indictment.[49]Third, parts of Mrs F.’s evidence were admissible on any view. Her evidence that C was afraid to go upstairs when she first started living with her was evidence which supported L’s description of the abuse which had taken place in her father’s bedroom. The evidence to the effect that C was generally distraught when she first started to live with Mrs F. was wholly consistent with the alleged sexual abuse having taken place.[50]Finally, C did not give evidence. His failure was correctly identified by the judge as being a factor which supported the case for the prosecution.[51]To repeat, in the particular circumstances of this case we are completely satisfied that even if the evidence of Mrs F. had not been admitted before the jury C would have been convicted of the counts laid against him and that the admission of her evidence did not render his convictions unsafe.[52]We turn to the third ground of appeal. As originally formulated it was that HHJ Statman was wrong to have admitted in evidence the conviction for indecent assault recorded against C in 1981. However, before us Mr. Jobling abandoned his argument that the fact of the conviction should not have been admitted. He submitted rather that the alleged facts of the incident should not have been adduced before the jury.[53]In his Skeleton Argument Mr. Jobling appeared to assert that the facts surrounding the conviction as presented by the prosecution were disputed. However, the Skeleton provided no detail as to what were the areas of disagreement. This was a somewhat unsatisfactory state of affairs. We pressed Mr. Jobling on what were the disputed facts. Ultimately, his position was, on instructions, that C could not remember the salient facts surrounding his conviction. In our judgment this provides no basis to conclude that the learned judge was wrong to permit the prosecution to adduce the facts as it alleged them to be.[54]In our judgment the judge was correct to have admitted both the fact of the conviction and the facts relating to its commission. The conviction was recorded against C on 9 November 1981. At that time he was aged 19; his victim was a girl of 8. The prosecution obtained a michrofiche which contained the following details, namely “C, aged 19, pleaded guilty to one count of indecently assaulting a female aged 8: he removed her shorts and pants, laid the child on the ground, got on top of her and exposed his penis.,” That summary was put before the jury.[55]In our judgment, the evidence of the conviction and the facts relating thereto was properly admitted under section 101(1) Criminal Justice Act 2003. The judge admitted the evidence under subsection (1)(d) since it was relevant to an important issue between the prosecution and defence, namely propensity. In our judgment he was correct so to conclude. The judge did not rule upon whether it was admissible on two other bases i.e. under subsection 101(e) and subsection (1)(f) although the prosecution had made its application to admit the evidence under all three subsections. We need not address the issue of whether subsections (1)(e) and (1)(f) could have been invoked.[56]The microfiche was a document which fell squarely within the terms of section 117 Criminal Justice Act 2003 (business records) and was admissible under that section.[57]We should add that in his ruling on admissibility the learned judge carefully considered the time gap of about 13 years from the date of the previous conviction to the date of the offence relating to H. He did that primarily because the previous conviction was in many respects similar to the offence against H. He also carefully considered the question of any adverse effect on the fairness of the proceedings (Section 101(3) of the 2003 Act) and applied the key criteria in R v Hanson [2005] 2 Cr App R 21. He correctly ruled that the conviction was not being admitted to bolster a weak case.[58]It follows from the above analysis that we are completely satisfied that this ground of appeal fails.[59]We now turn to the appeal of T (“B.”). She was represented before us by Lord Gifford QC and Mr. Katz who had not appeared for her at trial.[60]During the relevant period B. was the partner of L.[61]B. was originally indicted on two counts: 9 and 10. Both counts charged L and her with the rape of L at a time when L was nearly 8 years old. L was born on 11 October 1990 and it follows that the alleged rapes must have taken place in the summer or autumn of 1998. The particulars for count 9 were:
“first occasion on which L had sex with L at his home while T held her legs when she was nearly 8 years old.”
The particulars for count 10 were: “second occasion on which L had sex with L at his home while T held her hands and facilitated the entry of L’s penis into L’s vagina ...”.[62]Counts 9 and 10 were supported by L’s 2007 ABE interviews at the time of which she was 16 years old (nearly 17). She had made no reference to any abuse by either L or B. in her 1999 ABE interviews when she was about 8 years old. In those interviews, however, she had made allegations of abuse against, amongst others, F, her mother.[63]During the course of her evidence L said that B. had only joined in with L on one occasion at the home of L and B., C Street, Gillingham. In the light of that evidence, the jury were directed to find both defendants not guilty of count 9. Albeit that the jury convicted C and L unanimously, the jury convicted B. on count 10 by a majority of 11-1.[64]B. did not give evidence. When interviewed she had denied the allegations being made against her by L and had denied knowing that L was abusing children.[65]Lord Gifford accepted that, in the light of the evidence of L in support of count 10 there was a case to answer. He submitted that the case was a weak one, given, in particular that L was describing one isolated incident many years before when she was much younger, that there was no independent supporting evidence and that there was no evidence before the jury of any complaint of abuse in which B. was involved until the 2007 interviews.[66]We agree that the case against B. as presented to the jury was not a strong one.[67]The thrust of the complaints made by Lord Gifford was that there was a substantial risk that B. would be improperly “dragged down” by the evidence of prolonged and appalling abuse on the part of C and L given during a trial lasting some six weeks and represented in 31 counts, 26 of which involved L and six victims. Indeed of the 51 pages of the summing up setting out the facts only about seven concerned B..[68]In the words of Lord Gifford: There was a real danger that the minds of the jury would be so affected by this repulsive history of inter-familial sexual abuse, that they would hold everyone to blame.[69]To avoid that happening what was needed, so Lord Gifford submitted, was a quite separate part of the summing up when the evidence for and against B. was summarised as well as the points made by counsel for the prosecution and counsel for B.. It is not in dispute that, in large measure, this did not happen. The evidence for and against B. appears in the summing up in various parts as the judge summarized the evidence of the witnesses. Nor did the judge bring together in one place the various comments on the evidence made by counsel for B. or point out that there was no independent supporting evidence of L’s evidence against B..[70]Lord Gifford gave two particular examples. The first concerned L’s evidence about the layout of the house where she alleged the rape had occurred. A few stairs led to the front door of the house which contained two stories, the upper level of which was occupied by other people. The appellant occupied the ground floor and there was a room below. There was evidence that the room below was a cellar with rubbish and a darts board. In the words of Lord Gifford: ... In her ABE interview L said clearly that the house where L and T lived at C Street had an upstairs and downstairs. She said (ABE page 99 of 124):
“It had tv with – it had a bedroom. About two bedrooms, erm, downstairs, it’s like, you go in there, there was, you can see who’s, like, mainly answer the buzzer……. And then you go down there and then there’s a house, little bit thing, go down, like, a hallway thing….. and then you go up, like, stairs thing.. and then there’s, like a little room…… er, a kitchen and then dining room and then you go upstairs and then there’s a bedroom and toilet, a bathroom. Q. Right, so you’ve got a downstairs and an upstairs? A. Yeah. At page 105 she said that T was coming back from the shop or something, and she first noticed her when “she come upstairs”
. She had pointed out to the police when she was taken to C Street that L lived in the upstairs flat (transcript of XX, 154C). She repeated that T came upstairs (165A-E). When it was put to her that there was no upstairs, she said “that is an easy mistake to make, but it did happen though and she was there.” (166B). “That is an easy mistake if he didn’t have an upstairs, my mistake” (172B) It was established in evidence that there was no “upstairs” in the house at C Street. Plans were put before the jury which will be annexed to this advice, showing that it was a one-bedroom flat on the ground floor level only. The only stairs were stairs leading down to a cellar full of junk. The layout was confirmed by witnesses E.C. (112G and T (114C). “It had tv with – it had a bedroom. About two bedrooms, erm, downstairs, it’s like, you go in there, there was, you can see who’s, like, mainly answer the buzzer……. And then you go down there and then there’s a house, little bit thing, go down, like, a hallway thing….. and then you go up, like, stairs thing.. and then there’s, like a little room…… er, a kitchen and then dining room and then you go upstairs and then there’s a bedroom and toilet, a bathroom.[71]Lord Gifford submitted that although the judge summarized some of the evidence about the house, he did not draw the strands together to help the jury understand the relevance of it as potentially undermining L’s evidence. The defence submitted that if there was no upstairs, L may have been thinking of another location In the words of Lord Gifford : It is submitted ... that the learned judge failed to explain the defence case relating to the “upstairs” mistake. At 61D the judge said that he was going to remind them of a point made relating to the layout of C Street. Remarkably, having said that, he did not remind them of the point. He simply said “you have the plans and you will look with care at the layout of this home”. The evidence from the ABE interview about there being an upstairs, and T coming upstairs, was not read out. The “upstairs” evidence was not referred to until page 73. When dealing with the evidence of E.C. at 112G and T at 114C about the cellar, there was no reference back to the previous evidence about the stairs. The impression given was that the point which formed “a large part of Mr Haynes’ cross-examination” had no substance. What was needed was an explanation of the point, which was central to the defence, and its relevance to the issue whether the passage of time had caused L to believe that she remembered an episode which may not have happened.[72]We see force in this submission given in particular that the alleged rape occurred many years before when L was a child and given that in cases of alleged historical abuse the delay inevitably places the defendant at a disadvantage. Albeit that it is for the jury to decide whether alleged inconsistencies of this kind do or do not undermine the evidence of the complainant, it may nonetheless be necessary for the judge to remind the jury not only of the relevant evidence but of its relevance to the issues which the jury have to resolve.[73]The other example relates to the construction of the bed where the rape was alleged to have occurred. In the words of Lord Gifford: A further problem arose with the headboard of the bed at this address. It was a striking detail of L’s account that L had tied her to the metal headboard of his bed, before T came upstairs and joined in. See her ABE interview at page 102. In cross-examination she confirmed that it was a metal headboard and that she was tied to it (164B). But evidence was given for the defence by E.C. that she helped T move to C Street (112F):
“she brought a four foot bed down from her mums but didn’t take the headboard as the fixture was broken.”
T her mother confirmed that the headboard stayed at her house (114C) If there was no headboard, then how could L have been tied by the hands to the bed? The defendant was entitled to a clear direction on all these points which were crucial to her defence.[74]Lord Gifford complained about the way that the judge dealt with this issue: ... the judge failed to explain the evidence relating to the headboard. He said at 61F that L had said she was tied to “the railing”. He made no reference to her description of a “mental headboard” either in this passage or in the summary of cross examination at 73. The evidence of the two witnesses about the bed having no headboard was mentioned (112, 114), but no explanation was given about its relevance to the issues in the case.[75]Again we see force in this submission.[76]We turn to another point made by Lord Gifford. In so far as C and L were concerned the issue for the jury was, as the judge reminded the jury, whether L was telling the truth. The judge said (at page 70F): The key you may feel is this, and I am about to make a comment – are you sure that L is telling you the truth? That is the key, you may feel, to the judgment that you have to arrive at in relation to those counts concerning her.[77]A little later (page 72D) he said: The defence are submitting to you that this young woman L is fantasising about what she has told you ... .[78]Miss Marshall pointed out to us that all three counsel had made this point and that L’s allegation included more than holding L down. However, as Lord Gifford pointed out, in the case of B. the issue was not just one of credibility but of accuracy of recall after so many years. By not separating the narrow case against B. into a separate compartment, that important point was at risk of being overlooked by the jury. Indeed there was a risk that the jury would not address the issue of accuracy of recall, confining themselves to the issue of credibility, saying:
“We are sure that L is telling the truth about C and L and therefore she is telling the truth about B. and therefore she is guilty.”
[79]Lord Gifford made other complaints about the summing-up, which we do not need to resolve.[80]We turn to what in our view is the strongest point in favour of the appellant. Lord Gifford’s submission that there was a substantial risk that B. would be dragged down is, in our view, well demonstrated by the manner in which the prosecution put their case, as demonstrated by two passages in the Skeleton Argument for the respondent. In paragraph 8 Miss Marshall submitted that: The jury had to consider firstly, whether it was likely that T was ignorant of L’s behaviour and secondly, why she might protect him when challenged about it. It was the Crown’s case that T was fully aware of L’ sexual behaviour towards children and had on occasion been involved herself, hence her protection of L [in her interviews].”[81]In paragraph 30 Miss Marshall submitted in answer to a criticism made by Lord Gifford of how the judge summed up L’s evidence on count 10: It was not solely a question of one isolated incident but one incident of involvement in prolonged sexual abuse, the issue of T’s state of knowledge is an example of this.[82]Miss Marshall told us that, during her final speech, she had made the point that T must have known about the sexual abuse committed by L. She described the point to us a strong one and pointed to some evidence to support the allegation that B. knew that her partner was abusing children.[83]Using the language of the 2003 Act, the prosecution was relying on B.’s bad character as demonstrated by her knowledge that L was sexually abusing children and not taking steps to prevent it, as showing her propensity to assist the abuse of L by L. That provided evidence, so the prosecution would invite the jury to accept, to support L’s evidence that B. had taken part in the rape by L of L.[84]Miss Marshall submitted that no application to adduce this evidence was required because of the definition of bad character in section 98(a) of the 2003 Act. We are not certain that that is right. Whether that is right or wrong, the failure, in this case, to raise the issue resulted in the jury having no directions at all on this matter. It is clear to us that, at least in this case, the jury would need considerable guidance if they were minded to follow the approach being suggested to them by the prosecution. Although there was some evidence, as submitted by Miss Marshall, that B. did know what L was doing to children, there was material to contradict that. For example not only had B. denied any such knowledge in interview, but there was no evidence that L had abused any child at C Road other than on this occasion. Lord Gifford drew our attention to parts of the evidence of three of the victims (V, J and R) which supported the proposition that B. did not know that L was abusing children. Courts are very familiar with cases where abusers by various means prevent other family members from discovering what they are doing.[85]Before they could use the approach being suggested by the prosecution, the jury would needed to be reminded of the evidence dealing with her state of mind, the jury would have to be told that that they had to be sure that B. knew that L was abusing children and took no steps to prevent it when able to do so and the jury would need guidance as to how they could use that finding in reaching a verdict on count 10 as against B..[86]If the jury had been directed in the way that they should have been, we cannot say that the verdict would have been the same. The verdict is therefore unsafe and the conviction quashed.[87]It follows that we dismiss the appeal of C but allow the appeal of T.