R. v E [2011] EWCA Crim 1690

[2011] EWCA Crim 1690Case No 2011/0381/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday 27 June 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
ADAM E
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S McGarry appeared for AppellantMr M Blakey appeared for Crown
Judgment

LORD JUSTICE LEVESON:

[1]On 20th December 2010 in the Crown Court at Manchester Minshull Street, before His Honour Judge Blake and a jury, this appellant was convicted of 11 counts of indecent assault contrary to section 14 of the Sexual Offences Act 1956, six counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 and one count of attempting to have penetrative sexual activity with a child under the age of 16. On 1st February 2011 he was sentenced to seven years' imprisonment for the offence of attempting to have penetrative sexual activity with a child and four years' imprisonment on each of the remaining counts, the sentences all to run concurrently, making seven years in all. The judge made the appropriate ancillary orders and directed that time spent on remand counted towards the sentence. He now appeals against conviction by leave of the single judge.[2]The facts can be summarised comparatively briefly. The complainant, C, was born in [a month] 1990 and was the stepdaughter of the appellant, the appellant having met her mother in 1995. The family lived in P between 1995 and 1998 and, when C was 8 years old, moved to an address in W. In October 2000 the complainant's half sibling (A) was born. From 2001 to 2005 the complainant attended school in the N area, staying with her maternal grandmother during the week and returning to the family home at the weekends. It was said that her mother suffered from post natal depression and also spent time at her mother's home in N and was absent from the family home. In January 2005 the complainant enrolled at a school in W and in the latter part of 2005 started a sexual relationship with a young man, R. This was discovered by her mother and the appellant and as she was underage a report was made to the police. R was arrested but no charges were brought.[3]In February 2003 the family moved and three years later the relationship between the appellant and C's mother ended, whereupon the appellant left the family home and went to live in P. The complainant went to live with the family of R.[4]In May 2008, C alleged that she had been abused by the appellant. She was interviewed on 23rd June 2008 and the appellant was arrested and interviewed on 3rd June 2009.[5]The prosecution case was that between 2000 and 2006 when C was between 10 and 15 years old, the appellant had sexually assaulted her at both W family homes. In addition to her account through an ABE interview, the prosecution relied upon the evidence of complaint to R and to his mother. Reliance was also placed on evidence from the complainant's friends regarding the appellant's inappropriate behaviour towards C. There was also evidence from staff at the school concerning his overbearing behaviour. Finally, there was evidence of a letter from the appellant to C in 2006 that the prosecution contended was expressed in the language of a jilted lover. The prosecution relied by way of admission upon the evidence of a clinical psychologist, Dr Hogan, that the complainant presented with symptoms consistent with extensive child abuse.[6]The defence case was one of denial. The allegations were fabricated by the complainant who was aggrieved that the appellant had discovered that she was having a sexual relationship with R and, furthermore, that the appellant had obtained a contact order in respect of C's younger sibling.[7]The issue for the jury was whether they could be sure the offences occurred in the manner described by the complainant on the two specific occasions in two counts and in relation to the others on numerous other occasions.[8]It is unnecessary for the purposes of this judgment to outline in detail the evidence that was adduced at the trial, touching not only on what C had to say but also the other witnesses to whom we have referred.[9]The issues brought on appeal concern three areas. The first two relate to the admissibility of the evidence of a consultant psychologist and subsequently to the way in which the learned judge treated that evidence when he directed the jury. The third ground of appeal concerns the judge's failure to deal with certain inconsistencies in the evidence which Mr McGarry on behalf of the appellant contends were fundamental to the defence case.[10]We deal first with the admissibility of the evidence of the psychologist. Because of the way in which the defence case statement had been framed, the Crown sought the evidence of a consultant psychologist who examined the complainant C. He produced a detailed psychological report identifying her history, her mental state and reviewing a series of standardised assessments which he undertook in order to make an overall assessment of the complainant.[11]For the Crown it was argued that this evidence was admissible on the basis that it provided independent evidence supporting that of C of injurious consequences and undermined the defence case that the complainant was simply lying from first to last because of the appellant's disapproval of her relationship with her boyfriend and his pursuit of access to her half sister. Mr McGarry, for the appellant, argued that it served only as a form of oath helping and was inadmissible.[12]The judge ruled the evidence admissible whereupon the Crown and the defence agreed an admission, copies of which were ultimately placed before the jury. The admission was in these terms:
"1. CH was interviewed by Dr Lee Hogan, a clinical psychologist, on 14th April 2010. 2. Dr Hogan's assessment of C is that although she does not meet the criteria of PTSD in response to a single event, the presentation is consistent with a PTSD reaction called type two trauma. 3. Repeated prolonged trauma such as extensive child abuse is considered to be type two trauma."
[13]In the light of the admission, the defence had to deal with it and Mr McGarry did so by submitting that what was described as "prolonged trauma of a type two nature" could equally have been caused as a consequence of the disharmony between the appellant and C's mother, in other words the atmosphere at home, along with the fractured circumstances in which C grew up. When summing up, the learned

judge reminded the jury of the admission and went on:

"Now members of the jury, what he does not say is that her account is true, that's for you to decide not him. He does not even say that the symptoms are necessarily related to a history of child sex abuse, merely that the symptoms are consistent with some long term repeated events. That's all he says. You can accept or reject his opinion, his expert opinion, that's up to you, in fact you only have his opinion. But if you accept it, it's certainly up to you to decide how much it helps you to decide whether these allegations are true or not. How much it helps you or indeed if it helps you or indeed if it helps you at all, that's for you to decide."
[14]In this court, Mr McGarry repeats the submission that the evidence of the psychologist was not admissible and took the form of oath-helping (that is to say was no more than evidence to the effect that the account of C was believable and credible). In our judgment, however, although the learned judge did not approach the matter in this way in his ruling, admissibility could have been better analysed and justified on the grounds that it provided evidence of psychological injury in exactly the same way as any doctor might give evidence of physical injury consistent with a particular allegation. It was thus relevant material for the jury to take into consideration when considering where the truth lay. Were the jury sure that the PTSD found by the psychologist to be present was explained by reference to her complaints or could it have been a consequence of the marital disharmony as submitted by the defence?[15]In these circumstances, the direction was entirely sufficient to deal with the way in which the case was put at the conclusion of the evidence. It specifically made the point that the admission did not necessarily relate the condition to child sex abuse or exclude other long term or repeated events. Although the learned judge might have gone further, in our judgment it was unnecessary for him to do so and these grounds of appeal both in relation to admissibility and the way in which the learned judge dealt with the matter, although argued carefully and forcefully by Mr McGarry, fail.[16]We turn to the alternative submission made by Mr McGarry that the learned judge failed adequately to deal with the inconsistencies in the evidence. In his detailed skeleton argument, Mr McGarry identifies six such issues, but he accepted when it was put to him in argument that four of them are really only differences between witnesses rather than inconsistencies in any particular evidence. The first of the two that Mr McGarry relied upon were a visit to the family health clinic which C had said occurred in 2005 -- that is before she had begun a relationship with R at which she emphasised that her knowledge of sexual matters was poor, which was to be contrasted with the evidence of her friend to the effect that she accompanied C to the family health clinic in February 2006 which in fact was after C had formed a sexual relationship with R, thereby undermining her claim to sexual naivety.[17]The second inconsistency upon which Mr McGarry relies is the difference between C's video recorded testimony which put the sexual activity as occurring throughout the period until 2006, at both home addresses, which is to be contrasted with what the complainant said to her mother when first disclosing the allegation, namely that it ceased in 2003 prior to the move to the second address. Mr McGarry contends that the jury were not directed as to how to approach inconsistency of complaint and crucially how such inconsistency might undermine the case for the Crown. He accepted that both Mr Blakey for the Crown and he had focused upon these differences during the course of their closing speeches.[18]The learned judge gave the standard directions as to the reliability of witnesses and the importance of the jury making the decision as to credibility and the like, taking into account such evidence as they had heard and not merely that to which he drew their attention. Each case of alleged failure to give adequate directions to the jury has to be considered on its own merits and it is difficult to derive from other decisions of this court any principle, not least because what is critical is the general consideration of the evidence and the case which has been heard by the jury. The jury do not, of course, only hear the judge's summing-up but have heard the evidence and counsels' speeches. The summing-up is no more than a concise reminder of the important features to which the judge believes the jury ought to have regard.[19]In our judgment, it would have been better had the learned judge pointed to specific inconsistencies upon which the defence relied, but that very different from the proposition that failure to do so renders the verdicts of the jury unsafe. The jury well understood that they had to deal with a head-on conflict between C on the one hand and the appellant on the other. They heard C, they heard her friend, her mother and others; they had the advantage of a telling letter which the appellant had written to C thereafter and which we have had the opportunity of seeing being in language which might well have been taken to support, at least in part, the prosecution case about the relationship between the two. They also had the appellant's evidence in detail and the evidence which was called on his behalf.[20]In our judgment, it goes too far to say that because the learned judge did not point out these two important inconsistencies or identify other slight differences in the evidence, that the verdicts of the jury are unsafe.[21]In the circumstances, none of the grounds of appeal is sustained and this appeal is dismissed.