R. v E [2011] EWCA Crim 2393

[2011] EWCA Crim 2393

Case No 2010/04910/D2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 6 October 2011

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LADY JUSTICE RAFFERTY DBE

MR JUSTICE MACKAY

and

HIS HONOUR JUDGE LORAINE-SMITH

(Sitting as a Judge of the Court of Appeal Criminal Division)

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- v -

Between

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Mr C Eadie appeared for Applicant

Mr L Tucker appeared for Crown

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J U D G M E N T

[1]On 18 December 2009 in the Crown Court sitting at Basildon the Applicant, Venus Edmund, 33, pleaded guilty to possession of controlled drugs of class A and B, namely cocaine (count 4) and cannabis (count 5). On 4 August 2010 in the Crown Court at Chelmsford he was convicted of sexual activity with a child (count 1) and two counts of causing or inciting a child to engage in sexual activity (counts 2 and 3). He was sentenced as follows: on each count relating to the drugs offences three years' imprisonment, the terms concurrent on each; and on each count relating to sexual activity with a child to one month's imprisonment, the terms consecutive inter se and to the three years, a total of three years and two months' imprisonment.

[2]He applies for leave to appeal against conviction on the counts relating to sexual activity with a child following a referral by the Single Judge on ground 5: that he was denied a fair trial by the unfair and hostile conduct of the judge throughout, and by the terms of the summing-up. He renews his application in respect of grounds 1 to 4.

[3]After a party on 11 October 2009 the Applicant, then 31, was said consensually to have kissed P, a 13 year old girl, and then coerced her into various sexual activities: penetrating her vagina with his finger (count 1), attempting to persuade her to take his penis into her mouth (count 2), and getting her to masturbate him (count 3). The defence case was that all sexual activities were consensual; he believed P at least 16, a belief understandable and reasonable in the particular circumstances of the case. Before the evidence began, the judge refused a defence application to admit evidence that P had previously made a false allegation of rape, and that she habitually used sexualized or adult language (grounds 1 and 2).

[4]P's evidence was that she had gone with her family to a party where were her friend B, 15 , and her 18 year old cousin N. The girls left for a party in N's flat. They were all drinking and chatting about boys and sex. There were "girlie giggles about penises". The Applicant was there for this conversation. He and P got on very well, but had not flirted or kissed. P thought B had told him the girls' ages. There had been a conversation about underage sex, and everyone had pointed to her and to B. She agreed she had not told him her age and that she looked 16 or 17. She was the front passenger in his car when he went out for cigarettes and she gave him her telephone number. Later P, by now in her pyjamas but still in full make-up, went with B down to the stairwell as the Applicant returned to the flats where he said he wanted to talk to P alone. She asked B to "wait over there", but B stormed upstairs. P claimed that he pushed her against the wall and put her hand on his penis. She was frightened and froze. He ejaculated onto her arm, tried to persuade her to give him oral sex, moistened his fingers and pushed them into her vagina.

[5]B's evidence was that the Applicant and P had flirted at the party and in the stairwell and she left because he wanted to talk to P alone. She later saw sexual activity between them. She said that P had told her that she (P) had been scared because this was a fully grown man and that it had hurt when he had "fingered" her. P told B that she (P) had told the Applicant her own age. To B, P looked 16 or 17 that night. N's evidence was of a conversation at her flat about underage sex. She thought P looked 15 or 17 and there had been talk, she thought in the Applicant's presence, about her real age. LR's evidence was that the Applicant could have heard P say that she and B were 14 and 15. The judge had previously refused a defence application to exclude aspects of this evidence as hearsay (ground 3 to which we shall return). Miss T, a family friend, also thought P looked 15.

[6]Arrested and interviewed, via a prepared statement from the outset the Applicant described all sexual dealings with P as consensual and explained that he believed her to be over 16.

[7]In the course of the case for the Crown defence counsel applied to discharge the jury, submitting that the judge's conduct and comments left it and the Applicant with the impression that he had formed a view adverse to the Applicant. He had taken the view that her questions were superfluous. His observations were not directed to the question of guilt or innocence. At the close of the Crown's case he rejected a defence submission of no case to answer based on the reasonableness of the Applicant's belief, concluding that that was a matter for the jury (ground 4).

[8]The Applicant's evidence at trial was that he thought P 16 or 17 based on the way she was behaving, the way she looked and her carriage. He had heard her conversation about oral sex; he and she were flirting; she was drinking; she spoke profanely, like someone older. There had been some remark made about her wanting to be a "porn star". She had come with him for some cigarettes and then to get some soft drink from his own flat. As he left the party in N's flat, P looked out from a window and he went to see her. They began to kiss and fondle. He put his finger inside her and she had masturbated him. He had asked her to give him a "blow job" but she had stopped because she was embarrassed. All sexual activity had been consensual.

[9]In Grounds of Appeal the first complaint is that the judge erred in refusing to admit evidence that P had previously made a false allegation of coercive sexual misconduct. Second, that he erred in refusing to admit evidence that P habitually used sexualized "bad language", said to counterbalance her demeanour during her Achieving Best Evidence interview, and to fortify the Applicant's belief as to her age. Third, he fell into error in admitting hearsay evidence from LR. Fourth, he fell into error in rejecting the submission of "no case" at the close of the case for the Crown. In respect of all these grounds application is renewed. The fifth ground, referred to the Full Court, was that he was denied a fair trial as a consequence of the unfair and hostile conduct of the judge throughout and by the terms of the summing-up.

Ground 1 (the previous false allegation by P)

[10]It was said that in 2008 P had had sexual intercourse with a boy in her year at school, investigated by police, Social Services and the school. During the investigation she was said to have said that all activity had been consensual, contrary to what she was to say in her statement both at school and to Social Services. She had appeared "very vocal" about the matter in school, claiming rape. The submission was that this did not fall within the ambit of section 41 of the Youth Justice and Criminal Evidence Act 1999 since it was not questioning about her sexual behaviour, as defined later in the Act, rather about her actions in telling lies, albeit about sexual matters. The argument was that this amounted to bad character in accordance with section 98 of the Criminal Justice Act 2003. Matters were admissible under section 100(1)(b) of that Act as having substantial probative value in relation to a matter in issue, that is her creditworthiness. The Crown conceded that the matter did not come within the ambit of section 41, but argued that the only evidence which the Applicant sought to introduce was hearsay from other pupils and no more. When the judge dealt with this aspect of the application he said that it was "acknowledged to be a section 41 matter". That it was no more than a slip of the tongue, however, is clear from the obvious considerations of the bad character provision which he then went on to make. He said:

"Assessed by bad character admissibility considerations, the matter has no substantial (if it has any) probative value and has no, let alone important, explanatory value. Nor can I see that a fair trial generally requires this material to be before the jury."

The evidence he declined to admit came nowhere near reprehensible behaviour as envisaged in section 112(1) of the Criminal Justice Act 2003 which was, or now is, relied upon. In any event they lack substantive probative value, as contemplated by section 100(1)(b). Accordingly, his reasoning was correct, as the Single Judge said.

[11]Next, the judge is criticised for failure to admit evidence in relation to P's use of sexualized language. School records disclosed that she was constantly reported for inappropriate adult language. It was submitted, once again, that this did not fall within section 41, but within the bad character provisions of section 98 of the Criminal Justice Act 2003, as having substantial probative value as to an important matter in issue, that is the Applicant's belief that P was over 16. Further, and alternatively, it was important explanatory evidence within the meaning of section 100(1)(a) and 100(2) of the same Act because without it the jury would find it impossible to understand other evidence, especially her naive use of language and her reluctance in interview to use sexual language. The judge concluded that it was not admissible, since the use of sexual language does not "evoke any particular sexual maturity" and the defence did not claim that she indicated during sexual activity with the Applicant any verbal familiarity with matters sexual. Section 41 applied to some, and section 98 of the Criminal Justice Act to all of the material, which related to P between the ages of 9 and 13. School records revealed she was not alone in using unattractive language within the school environment. For example, she had been taught "wanker" by another pupil. The language merely reflected upon the language of the average child of her age within a school environment. It fell far short of relevance to the issues for the jury; nor did it shed light on her more moderate language in interview when she was in a more formal setting and with adults in authority.

[12]We share his conclusion, and there is nothing in this Ground.

The admission of the evidence of LR

[13]The defence argued that the evidence of LR should not be before the jury. She was one, it will be remembered, who could recount part of the age exchange at N's party in the hearing of the Applicant. It is true that there was conflicting evidence as to who, when and in what context said P was 13. However, the Crown's reliance on LR was merely to prove that there had been a conversation in the presence of the Applicant as to P's age. It did not rely on the truth of what was said. No hearsay issue arose.

[14]The final submission was that in any event LR's evidence should have been excluded by use of the judge's wide-ranging discretionary powers under section 78 of the Police and Criminal Evidence Act. We find noting impugnable in his exercise of his discretion, and, in any event, in his summing-up the judge to all intents and purposes gave the jury a firm steer to ignore a good deal of the evidence about P's age.

The submission of no case to answer

[15]The criticism was that matters had been left to the jury on a different factual basis from that opened and that some of the Crown's evidence was, inter se, contradictory. That is neither surprising nor unusual with a trial. Juries day in, day out are properly directed to consider what they accept and what they reject. It is true, too, that the Crown did not, in opening, spell out that if the jury rejected evidence that the Applicant was told P's age, it could go on to consider his knowledge or belief as to her age based on whether he was put on enquiry by her appearance, her demeanour and surrounding circumstances. However, its case as presented included ample evidence of all these matters. None in court could sensibly claim to have been unaware of how the case was put. There was ample evidence upon which the jury could convict.

[16]Finally, it is submitted that the Applicant was denied a fair trial because of the judge's hostility towards defence counsel. A number of matters found this criticism. They include the way that eleven pages of Admissions were dealt with. By the time counsel for the Crown reached in oral presentation number 17, the judge cut across her to say to the jury that it could ignore the remainder of the admissions as irrelevant. When counsel for the Applicant challenged that view, the judge was visibly irritated. The atmosphere in court, it would appear, became slightly strained (putting it at its lowest). The judge (albeit reluctantly) sent the jury out and heard an application to discharge it since he had shown partiality and bias so as to deprive the Applicant of a fair trial. He declined. When the Applicant gave evidence it is said that the judge interrupted his evidence in chief to such extent that at one stage counsel leading him through simply sat down to let the judge finish an inappropriate, it is suggested, exercise. When he was cross-examined matters are said to have become worse, the judge joining in cross-examination in a hostile and aggressive fashion and at times commenting. His interventions are said to have gone far beyond clarification; rather, this was very hostile cross-examination with comment. Additionally, a moment came when none was in court, save counsel, and, as often happens, the judge, unrobed, came in (one would infer) to collect something. He made a comment to defence counsel approbative of the Applicant. Counsel for the Crown responded, finessing the comment away, and the judge followed it up with a comment to the disadvantage of the Applicant.

[17]These comments when the court was not sitting, include no more than a misplaced attempt at humour, perhaps at a stage when many would understand why he thought it helpful to lighten the atmosphere.

The Summing-up

[18]The criticism of the summing-up is that it was couched so as to engender sympathy for P by encouraging an emotional approach to the case, creating hostility toward the applicant and undermining defence counsel and her conduct. Various parts have been cited in support. We have considered each one of them. That we select but one is not an indication that it attracts more weight than any other, it is merely an example. It reads:

"The tangles in [P's] mind and in her evidence and her flirtations with sex are just confirmation of the need for society to protect children from the consequences of their own inability to judge the wisdom of sexual involvement and to protect them from sexual predators who seek, or do not take reasonable thought to avoid sex with children."

It is true that the introduction into that comment of some qualification would have been wise but, that said, it is difficult to see how it is other than unexceptionable.

[19]There came a point when the judge appeared to concede that his conduct during the trial might have been too energetic. He said:

".... I confess to you that I became a little irritated during the evidence, and it may well be that I have wrongly allowed my irritation to show, where rightly I should always maintain the glacial and visibly detached calm for which in this jurisdiction better and wiser judges than me are celebrated. But let me assure you that my irritations are not in any way related to the defence case on what I consider and direct you to be the real point of this case, the point I have described and which you are here to decide on each count; and I do ask you not in any way to hold my grumpiness with his lawyers against the Defendant."

[20]The submission is that it is inappropriate, as the judge did more than once, to criticise defence counsel to the extent that he did in front of the jury. More than once he pulled up counsel for asking "rolled-up questions". He urged her, by a variety of means, to choose a sharper focus. One would have to be startlingly naive to fail to spot that there was tension between the judge and counsel.

[21]In R v Hulsi

(1974) 58 Cr App R 378

Lawton LJ said:

"Counsel who appear in English courts have to be robust. They must be prepared to take the knocks and misfortunes of advocacy, and one of the difficulties they must learn to cope with is the judge who is not being entirely fair to them. But it is another matter when unfairness to counsel has bad effects upon the accused."

[22]Here the judge had described the defence case statement as "weasly". He obviously felt it deficient. Defence counsel (not its author) offered overnight to redraft it. This is an example of a complaint which, although phrased in infelicitous language, falls away because an examination of the document shows the judge to be correct -- it was deficient. The judge addressed both counsel in these terms:

"There has been a lot of interlocutory skirmishing carried on in this case with rather more than the usual depth of feeling. It seems to me that the parties at times may have mislaid their sense of proportion about the case and the issues."

That observation may have been well-judged, it may not. What is important is that it fired a gun at both counsel. It was even-handed. The age, the apparent age, and the knowledge or belief the Applicant held in the age of P was the central issue. We have examined with great care and anxious scrutiny the judge's interventions on that topic. We are prepared to accept that they were either to clarify his note or to add points of detail, or, on more than one occasion, to pull up counsel. He was clearly concerned that each counsel should maintain focus on relevant issues and avoid peripheral litigation and certainly extraneous questions. The admissions are a case in point. They had been composed at length in anticipation of a different defence from that run. A wiser conduct of the case would have pruned them before they were read out. No damage was done by the intervention of the judge. The jury cannot, in our judgment, have been compromised in its understanding of the case, and these interventions are justifiable.

[23]There were occasions when exchanges between Bench and Bar were not warm, but formed no more than the rough and tumble of daily court life. The exchange during the period when the judge, unrobed, came into court was no more than the polite comments that often pass in such circumstances at the end of the day when no other court user is present.

[24]In our view any criticism of defence counsel during the trial was not of such extent as to undermine the Applicant's fair trial. The summing-up aimed to make clear why the judge had failed to maintain his own cool demeanour and was an obvious concession. It was a clear reassurance that he was not criticising the Applicant. There is nothing in what for shorthand purposes we describe (grounds 1 to 4) as the substantive points.

[26]The complaints about the judge's behaviour, which we do not consider threatened the safety of the convictions, nevertheless have concerned us. Whilst we refuse these renewed applications, we say this: No member of this court would have behaved or spoken as the judge did.

[27]This referred application and the renewed applications are all refused. ___________________________