McKenzie v R. [2011] EWCA Crim 1550

[2011] EWCA Crim 1550Case No 201006615 C3IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM Bristol Crown Court
HHJ Darwall-Smith
T20090200
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/06/2011
Before
LORD JUSTICE HOOPERMR JUSTICE STADLENMR JUSTICE SWEENEY
Between
Michael Anthony McKenzieAppellantReginaRespondent
Mrs L Matthews for AppellantMr S Mooney for RespondentHearing Hearing dates : Thursday 9 th June 2011
Judgment
[1]At the conclusion of the hearing we announced that the appeal succeeded and that the findings made against the appellant were quashed. We further directed that verdicts of acquittal be recorded as we are required to do by virtue of section 16(4) of the Criminal Appeal Act 1968. The absence of any power to order a retrial was said by Thomas LJ in Norman[2009] 1 Cr.App.R. 13 to be a lacuna in the statutory provisions. We agree.[2]We now give our reasons for allowing the appeal.[3]We have divided the judgment into two parts; the first will be given by Sweeney J and the second part by Hooper LJ. Mr

Justice Sweeney:

[4]This is an appeal under the provisions of s.15 of the Criminal Appeal Act 1968 (“the 1968 Act”), by leave of the Single Judge, against findings made pursuant to s.4A of the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”) on 19 November 2010, by a jury sitting in the Bristol Crown Court, that the appellant had done the acts charged against him in each of the eleven Counts of the indictment that he faced.[5]Thereafter, under the provisions of s.5 of the 1964 Act, His Honour Judge Darwall-Smith (who had presided over the hearing before the jury) imposed a supervision order on the respondent for a period of twenty four months concurrent on each Count.[6]Counts 1, 3, 5, 7, 9, 10 & 11 each charged the appellant with an offence of indecent assault, contrary to s.14(1) of the Sexual Offences Act 1956 (“the 1956 Act”). The offences were alleged to have taken place in the overall period between 1 September 1995 and 6 May 2000.[7]Counts 2, 4, 6 & 8 each charged the appellant with an offence of indecency with a child, contrary to s.1(1) of the Indecency with Children Act 1960 (“the 1960 Act”). In each Count the particulars of offence asserted that the offence related to “a child under the age of 16 years”. The offences in Counts 2 & 4 were alleged to have taken place in the period from 1 September 1995 to 6 May 1998, whereas the offences in Counts 6 & 8 were alleged to have taken place in the period from 1 September 1995 to 6 May 2000.[8]There was one alleged victim. We shall refer to him as S. By virtue of the Sexual Offences (Amendment) Act 1992 nothing may be published that might lead to his identification.[9]S was born on 7 May 1984. The indictment overall, and Counts 6 & 8 in particular, therefore covered the period when he was aged 11 to 15. During that same period the appellant was in his mid to late 40s.[10]The prosecution case was that the various Counts were sample offences reflecting a course of conduct over a period of years during which the appellant had touched S’s penis over his clothing (Count 1); there had been masturbation and mutual masturbation (Counts 2-5); mutual oral sex (Counts 6-9); and the appellant had touched S’s bottom with his penis in a sexual manner (Counts 10 & 11). The offences were said to have taken place at the appellant’s home and to have ended when S was about 16 or 17 years old.[11]S did not complain at the time. It was not until he had his own children that, in 2008, he decided to do so.[12]The appellant was arrested and interviewed in June 2008. He admitted befriending S, but denied that there had ever been any sexual relationship between them.[13]In due course the appellant was charged, and in March 2009 he was committed for trial in the Bristol Crown Court.[14]Thereafter the appellant’s mental health began to deteriorate. By July 2010 psychiatrists instructed by the defence had agreed that he was suffering from a form of hysterical amnesia and was thus unfit to stand trial.[15]On 5 July 2010 His Honour Judge Ticehurst therefore found, under the provisions of s.4 of the 1964 Act, that the appellant was under a disability.[16]We observe that thereafter no consideration was given, as it should have been, to who was the best person to be appointed by the court to put the case for the defence in the subsequent hearing before a jury to determine whether the appellant did the acts charged – see Norman (above)at para.34(iii). We should however emphasise that, in this particular instance, that implies no criticism of the appellant’s counsel Mrs Matthews who continued to represent him below, and who conducted this appeal with conspicuous skill.[17]On 18 November 2010, prior to the empanelment of the jury and on notice, Mr Mooney applied on behalf of the prosecution to adduce bad character evidence (consisting of a number of previous convictions) under the provisions of s.101(1)(d) of the Criminal Justice Act 2003 (“the 2003 Act”). The convictions were said to demonstrate a propensity to commit sexual offences against young children.[18]The convictions relied upon were as follows: i) On 21 January 1993 in the Cardiff Crown Court for one offence of indecent assault on a 14 year old boy and three offences of gross indecency in relation to boys (all committed in 1992). ii) On 29 April 1998 in the Bristol Crown Court for an offence of inciting a girl under the age of 14 to commit an act of gross indecency with him (committed in the period from April 1996 to January 1997). iii) On 3 October 2003 in the Cardiff Crown Court for two offences of gross indecency with a boy (committed in the period from 1977 to 1979), and for the breach of a sex offender order (apparently imposed in 1998).[19]Mrs Matthews opposed the application, arguing that the offences in the 1970s were too old; that the offence in relation to the girl showed no relevant propensity; and that given that the appellant was under a disability, and thus not able to give evidence, and that the admission of any of the convictions (and particularly the 1993 convictions) would, in itself, be likely to guarantee adverse findings being made against him, it would therefore be unjust for the convictions to be admitted – citing s.103(3) of the 2003 Act.[20]In a short ruling the learned Judge admitted all the convictions. He did not, in terms, address Mrs Matthews’ arguments. Instead, having noted that this was a case in which the appellant had been found to be under a disability, he continued:
“….The kernel to the whole of this case is going to be whether this defendant has a desire for and a sexual attraction to children, and that is why the matter is brought under section 101 in (d). There may be slightly different facts to the individual cases and it may be that some are old, but old cases are revived by more recent ones. But the pattern is quite clear, from the previous convictions, that he has a propensity to have sexual attraction, or affairs, or incidents of one sort or another with those who are under age. That is exactly what is being charged today, and if the jury were unaware of those matters then they would be working entirely in the dark. It would be unfair to the Crown if these matters were not before them, and I rule that they should be.”
[21]The jury was then empanelled, and the learned Judge gave a brief explanation of the nature of the hearing.[22]The prosecution then called S, who was cross examined by Mrs Matthews upon the basis of the account that the appellant had put forward in his police interview, together with such instructions as he had given before his mental deterioration. DS Duddin, the Officer in the case, was also called. She gave evidence as to the appellant’s three previous convictions and the breach of the sex offender order, but not as to the dates of the various offences. The appellant’s police interviews on 26 June 2008 were also put before the jury.[23]The summing up was quite short (five and a half pages), and included the following passages about which complaint is made:
“…You have heard that the defendant has previous convictions for child sex offences, and the reason that you have heard that is that you know that he has a tendency – or propensity as we call it in law – to commit offences against children. What you must not do is to say that just because he has previous convictions of such a nature it shows that he must have acted so in the same way in this case. You must be satisfied on the evidence of S, but you are entitled to consider the defendant’s bad character, as we call it, in deciding whether S has told you the truth.”
A little later

the judge said:

“Well, the officer told you about the defendant’s three previous convictions for sex offences with children. He was also made the subject of a sexual offences prevention order. ... The defendant was interviewed. You have a copy of that, members of the jury, and so I am not going to refer to it in any detail. You will be able to remind yourselves of any parts of it that you may wish to when you retire in a moment. But you will have to ask yourselves what reason would S have to invent such allegations about someone who gave him money and generous presents, and who made his life generally more comfortable and enjoyable. Why is it that this 26 year-old man should now tell the police what happened to him when he did not nearer the time? Is he lying to you when he says that it was having children of his own that woke him up to the fact that the defendant should be stopped? Well, if you think it is true, or may be true, that for no discernible reason he has invented these allegations completely and that they never occurred at all you will not find that the facts of these charges are proved. On the other hand, if you are driven to the conclusion that S has no reason to come to court and lie about someone who has treated him so well you will find the facts proved.”
[24]At the conclusion of the summing up Mrs Matthews realised that the learned Judge had omitted to give the jury any direction at all about the appellant not having given evidence, and immediately invited him to explain that that was not through the appellant’s choice. The learned Judge, in the presence of the jury, then said: “Well, he cannot give evidence because he is under a disability and the jury have been told that, they know that”.[25]On hearing that, the jury sent a note asking what type of disability the appellant was under. The learned Judge then explained that being under a disability meant that the person was unable to give instructions properly or to understand the process of the trial by reason of his mental state. He then continued:
“…..But the reasons for it do not concern you, members of the jury; the only thing that concerns you is that he is under a disability and that is why you are trying the case as you are trying it.”
[26]Against that background the Single Judge gave leave in respect of the following grounds of appeal: i) Although bad character evidence is not per se inadmissible in proceedings of this type (Creed [2011] EWCA Crim 144), the Judge erred in admitting the evidence of the appellant’s bad character. ii) The Judge did not give an adequate direction in relation to the use of that bad character evidence. iii) The Judge erred in inviting the jury to consider the absence of reasons for S to lie in circumstances where the appellant could not give evidence to suggest any such reasons. iv) The Judge erred in failing to give a direction regarding why the appellant had not given evidence.[27]Prior to the hearing of the appeal the Registrar drew the attention of the parties and the Court to the following problems with the indictment: i) Counts 1, 3, 5, 7, 9, 10 & 11 were mischarged - in that s.14(1) of the 1956 Act criminalises indecent assault on a woman, not on a man. Thus the particulars alleged in each of these Counts could never prove the offence actually charged. The offence charged should have been indecent assault on a man, contrary to s.15(1) of the 1956 Act. ii) The amendment to s.1(1) of the 1960 Act that was made by the Criminal Justice and Court Services Act 2000 (Commencement No.1) Order 2000 (SI 2000 No. 3302) increasing the age of the victim from under 14 to under 16 did not take effect until January 11 2001. Thus during the time period alleged in Counts 6 & 8 no offence could, in law, have been committed after 6 May 1998 - whereas the trial proceeded upon the basis that an offence could have been committed in relation to those Counts in the period from 7 May 1998 to 6 May 2000 (when S was aged 14 or 15).[28]Against that background Mrs Matthews applied for permission, which we granted, to add a fifth ground of appeal to the effect that, for the reasons identified by the Registrar, the findings in relation to Counts 1, 3, 5, 6, 7, 8, 9, 10 & 11 were unsafe.[29]We propose to deal with the fifth ground first.[30]Mr Mooney accepted full responsibility for the problems with the indictment - albeit that everyone involved in the hearing below had missed them.[31]As to Counts 6 & 8, Mr Mooney conceded that the jury were not given directions about the significance of S’s 14th birthday; that it was thus impossible to know whether they returned their findings based on acts before or after S’s 14th birthday; and that therefore there was no argument that he could advance in support of the safety of the findings on those Counts. It seemed to us that those concessions were rightly made.[32]Mr Mooney sought, in contrast, to uphold the findings in relation to Counts 1, 3, 5, 7, 9, 10 & 11 despite those Counts each having charged an offence in relation to which the appellant was not alleged to have done the act actually charged, namely indecently assaulting a woman, and of which the appellant (if not under a disability) could never have been found guilty. Mr Mooney’s argument was to the following effect: i) The jury were clearly sure that the appellant did the acts alleged in the particulars of each Count. ii) In each case those particulars actually amounted to the offence of indecent assault on a man, contrary to s.15 of the 1956 Act. iii) In those circumstances the pleading of the specific acts in the particulars of each Count complied with the requirements of s.4A(2)(b) of the 1964 Act (as substituted). iv) In the alternative, if s.3 of the 1968 Act applied, the court had the power to correct a formal defect by substituting findings in relation to the correct offence.[33]Section 4A of the 1964 Act (as substituted) provides, in so far as relevant, as follows: “(1) This section applies where in accordance with section 4(5) above it is determined by a court that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury –(a) on the evidence (if any) already given in the trial; and(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him. (4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion…….” (our emphasis). (a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him. (4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion…….” (our emphasis).[34]It seemed to us that the wording of s.4A is clear. To return a finding the jury must be satisfied that the accused did the act (or made the omission) charged against him as the offence. In this case the act charged against the appellant as the offence was indecent assault contrary to section 14(1) of the 1956 Act – i.e. indecent assault on a woman. The actus reus of that offence could not possibly be proved by evidence that the appellant had indecently assaulted S, who was a young man, even though the particulars asserted that that was what he had done. Thus the Mr Mooney’s principal argument in relation to Counts 1, 3, 5, 7, 9, 10 & 11 failed.[35]As to Mr Mooney’s alternative argument, s.3 of the 1968 Act provides that:
“(1) This section applies on an appeal against conviction where the appellant has been convicted of an offence to which he did not plead guilty and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence. (2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at trial as may be authorised by law for the other offence, not being a sentence of greater severity.”
[36]We took the view that it is clear from its terms that s.3 of the 1968 Act applies only in relation to appeals against conviction, and thus not to appeals under s.15 of 1968 Act against findings made pursuant to s.4A of the 1964 Act (as substituted). Nor is there any other provision in the 1968 Act that would allow us to make substitute findings. Therefore Mr Mooney’s alternative argument in relation to Counts 1, 3, 5, 7, 9, 10 & 11 also failed.[37]Our ultimate task, in accordance with s.16(1) of the 1968 Act, was to decide whether the findings in relation to Counts 1, 3, 5, 7, 9, 10 & 11 were safe. If we decided that they were safe, s.16(1)(b) required us to dismiss the appeal in relation to them. If we decided that they were not safe, the combined effect of s.16(1)(a) & (4) required us to allow the appeal in relation to them and to direct verdicts of acquittal in their regard. There is no power to order a rehearing.[38]Given this Court’s general deprecation, in relation to the safety or otherwise of convictions, of undue resort to technicality and/or reliance on drafting or clerical error or omission, or discrepancy, or departure from good or prescribed practice, we invited Mr Mooney to make any further submissions that he thought appropriate as to the overall safety of the findings in relation to Counts 1, 3, 5, 7, 9, 10 & 11. He declined to make any further submissions. In our view, given the authorities to which we now turn, he was right to do so.[39]In Graham & others [1997] 1 Cr.App.R. 302 Lord Bingham CJ, when examining this Court’s approach to the safety of convictions after the amendment of the 1968 Act by the Criminal Appeal Act 1995, said this (at p.309D):
“….Our sole obligation is to consider whether a conviction is unsafe. We would deprecate resort to undue technicality. A conviction will not be regarded as unsafe because it is possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice. We would, for example, expect R v McVitie [1960] 44 Cr.App.R. 201, [1960] 2 Q.B. 483 to be decided under the new law in the same way as under the old. But if it is clear as a matter of law that the particulars of offence specified in the indictment cannot, even if established, support a conviction of the offence of which the defendant is accused, a conviction of such an offence must in our opinion be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on no conviction of that offence could be other than unsafe.”
[40]Graham & others wasexplained and applied in R v K [2008]1 Cr.App.R. 1. At paragraphs 44-54 of the judgment of the court, Sir Igor Judge P (as he then was) underlined the crucial difference between cases where on the facts pleaded and the evidence called at trial the offence charged could not be established (and where thus the conviction is unsafe), and other cases where (for example, as in R v K itself) partially defective particulars could be cured by amendment after conviction so as to render lawful and proper the conviction for the offence charged.[41]It seemed to us that the same approach as enunciated in Graham and K had to apply to our consideration of the safety of the findings in relation to Counts 1, 3, 5, 7, 9, 10 & 11. In this case neither the particulars pleaded in those Counts, nor the evidence of S, could possibly establish that the appellant had done the act charged in each case of indecent assault contrary to s.14(1) of the 1956 Act. Thus we concluded that it was beyond argument that the findings of the jury in relation to the seven Counts of indecent assault were unsafe.[42]As we have already touched on in paragraphs 35 & 36 above, and in contrast to the position on an appeal against conviction, s.3 of the 1968 Act does not permit us to rectify the situation by the substitution of findings that the appellant did the acts charged in relation to an offence of indecent assault on a man, contrary to s.15(1) of the 1956 Act. Nor is there any other power in the 1968 Act that allows us to rectify the situation. Although not invited to do so, we also considered whether, in the particular circumstances of this case, it was possible for us to issue a writ of venire de novo, but concluded that it was not.[43]It was for all those reasons that we accepted the validity of the fifth ground of appeal, thus quashed the findings in relation to Counts 1, 3, 5, 6, 7, 8, 9, 10 & 11, and directed that verdicts of acquittal be recorded in relation to each.

Hooper LJ:

[44]We now turn to our brief reasons for allowing the appeal in respect of the remaining findings on Counts 2 and 4.[45]Mrs Matthews submitted that the judge ought not in the exercise of his discretion to have allowed the prosecution to lead evidence of the previous convictions, albeit without the dates on which the offences had been committed. In our view the judge was entitled to admit two of the three previous convictions as showing propensity notwithstanding the appellant’s disability and consequent inability to give evidence. In our view the judge (whose reasons were very brief) should not have permitted the prosecution to lead evidence about the indecent assault on a female, the facts of which were very far removed from the facts in the appellant’s case. Mrs Matthews tells us, and this is not challenged, that the appellant in 1996-1997 had said to a teenage girl who wanted to have sex with someone else at the appellant’s home “don’t be silly. You may as well have sex with me”. The sentence, as varied on appeal, was one of two years’ probation.[46]We have already set out the judge’s direction about the relevance of bad character. It was clearly deficient in that the jury were told “that he has a tendency – or propensity as we call it in law – to commit offences against children”. It is trite law that whether or not the defendant has a propensity is a matter for the jury. Furthermore the direction fell far short of the standard direction, see Crown Court Benchbook, Directing the Jury page 175 and following.[47]Complaint is made of the manner in which the judge in the passage in paragraph 23 above told the jury that they “will have to ask yourselves what reason would S have to invent such allegations about” the appellant and repeated the same point some four times. If the point was going to be made it should have put in the form of a submission by the prosecution and the jury should have been reminded that the appellant was under a disability and thus unable to give any explanation to the jury as to why S might lie. Nor did the judge explain the limited relevance of the conviction for indecent assault on a female and nor did he remind the jury of the appellant’s denials in his police interview given at a time when he was not under a disability. As we have seen, the judge did no more than remind the jury of the interview.[48]We turn to the complaint relating to what happened at the conclusion of the summing-up as set out in paragraph 24 above. In our view the judge ought, in a balanced way, to have reminded the jury of the difficulties faced by the appellant, through no fault of his own, in defending the accusations against him.[49]In conclusion we did not feel that the defendant had the fair trial on the two remaining counts to which he was entitled.[50]We add this. Once again the Criminal Appeal Office has demonstrated its commitment to ensuring that justice is done notwithstanding the failure of all concerned at the hearing to realise that the indictment was fatally flawed. We ask the Registrar to pass on the thanks of the Court to those responsible for detecting the errors.

Cited in 3 later judgments