Rose v R. (Rev 1) [2011] EWCA Crim 579

[2011] EWCA Crim 579

Case No 201001093 A8

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

His Honour Judge Wilkinson

Ind No T20048140

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/03/2011

Before

LORD JUSTICE PITCHFORD

MR JUSTICE DAVIS

HHJ KRAMER QC

Between

OSHANE EVERTON ROSEAppellant

REGINARespondent

D Malone and Jessica Smeaton (instructed by Goldman Bailey - Solicitors) for Appellant

B Reece (instructed by CPS) for Respondent

Hearing Hearing date: 22 February 2011

Judgment

[1]It is an offence contrary to the Sexual Offences (Amendment) Act 1992 to publish the name and address of the victim or any matter which might lead to her identification. The appeal

[2]This is an appeal with the leave of the single judge against sentence. The appellant, Oshane Everton Rose, born 21 May 1989 is now aged 21. On 14 December 2004 at Snaresbrook Crown Court, he pleaded guilty on re-arraignment to an offence of rape of a child aged 12 years contrary to section 5(1) Sexual Offences Act 2003. By reason of the age of the complainant, whom we shall call K, she could not in law consent to the act of oral intercourse alleged. On his change of plea the appellant submitted a basis in which he said that(1) he believed the girl to be a similar age to himself, or about 15 years

(2) the sexual activity was consensual, and

(3) he was not in possession of a knife. The basis of plea was not accepted.

[3]HH Judge Wilkinson held a Newton hearing on 23 and 24 February 2005. In a judgment given on 25 February 2005 the judge resolved the first of these issues in favour of the appellant. He resolved the second and third issues against him. The appellant was therefore sentenced for the rape of a girl he believed to be aged about 15 whom he knew was not consenting. On 15 April 2005 the appellant was sentenced to 30 months detention under section 91 Powers of Criminal Courts (Sentencing) Act 2000. He is registered as a sex offender. It is not suggested that the sentence imposed was excessive provided that the appellant was sentenced on a factual basis properly found by the judge. The single ground of appeal in respect of which Macduff J gave an extension of time and granted leave to appeal is the assertion that fresh evidence demonstrates that the evidence given by the complainant in the Newton hearing was or was arguably false. Had the appellant’s account of events been accepted in the first place it is suggested there would have been no prosecution; alternatively, a prosecution would have led to a non-custodial sentence having regard to the proximity in ages between K and the appellant.

[4]We have available to us the transcript of proceedings in the Newton hearing, the ABE interviews of the complainant and her friend L, and HH Judge Wilkinson’s judgment. Evidence given at the Newton hearing

[5]On 3 September 2004 K was 14 days away from her 13th birthday. L was her best friend. On that day they were with a mutual female friend, S. Both K and L, in the course of their ABE interviews said that they went with S to Lloyds Park, Walthamstow. K said they were also with a male friend, Jake. They came across the appellant and his friend, Ricky. It was unclear at the Newton hearing whether there had been any pre-arrangement for a meeting at the park. However, it appears that S was in possession of Ricky’s telephone number and there may have been at least an attempt to contact him that morning. When the appellant and his friend appeared in the park Jake, according to K, became uneasy and left the group. According to both K and L at least one knife was produced and the appellant was playing with it. Both girls described a wooden handle. K described silver rivets or other ornament; L described gold. It was a lock knife of some sort. L said both youths wanted sex. The appellant concentrated upon K. The appellant asked K for sex and she said “No”. The appellant threatened to “give you the box” meaning violence to K of some kind. K was afraid that the appellant might use the knife she had seen. The appellant told the girls that they were going to the flats, a reference to Priory Court some 10 to 15 minutes walk away. K went along with him and the group walked towards the flats. K said that the girls were required to walk in front of the boys so that they could not get away. L agreed that she could have escaped but K was pleading with her not to leave her alone because she was scared; so she went with her. According to K, the appellant and his friend continued to play with the knives which had been produced in the park. L made no reference to seeing the knives during the walk to the flats.

[6]When they arrived at the flats the appellant led K to a waste disposal or “chute” room on the second floor. S and L waited outside with Ricky. The appellant pulled down his tracksuit trousers, placed a condom on his penis and inserted his penis into K’s mouth. After a short time he removed the condom and re-inserted his penis into K’s mouth. He was controlling K by threatening her, hitting her arm when she resisted and holding his hands around her head. K was frightened that the knife would be used. The appellant ejaculated into her mouth. Towards the end of the incident Ricky started to kick the door to the chute room and, according to L, shouted “get off her, you’re a rapist” or words to like effect. The appellant opened the door a short distance making it difficult for K to pass through. Having done so, she joined her friends and they left the block of flats. Shortly afterwards the girls came across the appellant and Ricky near the library which they had passed on the route between the park and the flats. According to L, the appellant stole S’s mobile telephone making a threat to use his knife as he did so. By this time K had told L what had happened at the flats. S called her step-father. The police became involved. ABE interviews were conducted. L was interviewed the same day and K the following day.

[7]The appellant was interviewed under caution by the police. He was told that the police had received a complaint that he had engaged in oral sex with a 12 year old girl at Priory Court flats. The appellant denied it and gave a false account of his movements that day. Subsequently, the appellant’s fingerprint was found on the condom, the wrapper was recovered from the waste room and the appellant’s DNA profile was obtained from a swab. The appellant did not plead guilty until it was clear that K and L were at court prepared to give evidence. He submitted both a defence statement claiming consent and the basis of plea to which we have already referred. The appellant gave evidence in the Newton hearing that on the morning of 3 September S had phoned Ricky while Ricky was at the appellant’s house. The appellant spoke to K using Ricky’s phone. The appellant claimed that K offered over the phone “to give me head”. They met in the park and the appellant asked if it was true. K said “yes” but she would not do it in the park. They went to the flats. He and K went into the chute room while the others waited outside. He said the condom belonged to K and she produced it. He put it on. She took his penis into her mouth. After 10 seconds he withdrew because he was bored. They went their separate ways. Ricky did not kick the door and did not accuse him of rape. He said he did not disclose his true movements to the police because he had not realised that the police were asking about K. They were talking about a 12 year old girl and he thought that K was 15. If he had known that they were asking about K he would have told them. Later, when he realised that they were referring to K he did not admit sexual contact because they were accusing him of rape.

[8]No statement was taken from S who was refusing to co-operate. No police statement was taken from Ricky because he had been interviewed by the defence. He was not, however, called on behalf of the appellant in the Newton hearing.

[9]The judge accepted that despite her young age K had a sexual history, including sexual activity with the appellant (which the appellant himself denied). This led the judge to conclude that she was prepared to engage in oral sex if it suited her to do so. Nevertheless, he was sure that on 3 September 2004 the complainant had not consented. The judge’s reasons were:(1) He accepted the evidence of both K and L that K was threatened in the park;

(2) L’s evidence was that immediately after the incident K was crying and distressed. Her evidence was accepted;

(3) The judge accepted L’s evidence that after the incident K complained to L that the appellant had hit her and that he was in possession of a knife;

(4) The judge accepted L’s evidence that Ricky had intervened by kicking the door and saying words to the effect “just open the door you rapist”;

(5) Shortly after the incident, while sitting in a police car, K made a full and consistent complaint to a police officer;

(6) K and L had a very limited opportunity to communicate with one another when the ABE interviews were being conducted. Their accounts were consistent with one another although there were differences in detail;

(7) The appellant lied in interview with the police about his movements on 3 September 2004;

(8) The appellant’s account in evidence was incredible and not to be believed. The telephone call offering “head” was plainly a recent invention which was not put to the complainant when she gave evidence. The judge did not accept that the appellant was indifferent to the sexual opportunity he claimed to have been offered, nor that he was “bored”. The judge took account of the fact that opportunities to escape were not taken and that some of the detail given by K was unreliable but in this respect he took account of K’s age. He concluded that the appellant was in possession of a knife and that this was a case of submission under threat and not of consent freely given. Fresh evidence

Fresh evidence

[10]In his original grounds of appeal, settled by solicitors and dated 12 February 2010, it was said that on an occasion in 2009 K admitted to the appellant that she had lied at court about the appellant’s possession of a knife and as to her lack of consent to sexual activity with him. The appellant provided K’s telephone number to his solicitor, who, in turn, telephoned K on 19 November 2009. A statement from Louise James, the appellant’s solicitor, confirmed K’s admission that she had lied at the Newton hearing. It was further asserted that the appellant is a Jamaican national who was then subject to deportation proceedings. A deportation hearing was due on 16 February 2010. In February 2010 Louise James was employed by Duncan Lewis & Co. She had some 10 years experience as a solicitor. In her statement dated 12 February 2010 Mrs James confirmed making the telephone call to K. The call lasted 9 minutes 28 seconds. In her statement Mrs James described the call as follows:

“[K] stated that she had lied about the evidence she gave at trial at the time. She stated that [the appellant] did not force her into doing anything and that a knife was not used. She stated that [the appellant] did not make any threats towards her. When questioned about whether [the appellant] had a knife on him, she replied that she thought he had because everyone “back in the day” carried a knife. However, she could not confirm whether she actually saw it. In any event she said it was not used to force her into having sexual contact with [the appellant]. When asked why she wanted to take this step she replied that she was older now and wanted to “move on”

. She was reluctant to go much further without me speaking to her mother. Her mother had asked her not to do anything without speaking to her first. I believe by this she meant even speaking to me. I gave her my full details and asked her to get her mother to speak to me as soon as possible. During the course of the discussion I advised her that by making such a statement she may open herself to criminal proceedings to perjury, although as she was only 12 years old it would be unlikely. However, I would talk to her and her mother further about this and refer her to separate legal advice. I asked her whether she had been put under pressure from [the appellant] or members of his family to make such a statement. She denied this.”

[11]Following receipt of the appellant’s grounds of appeal prosecuting counsel advised that K should be interviewed. In a statement made on 2 June 2010 K agreed that she had been approached by the appellant in the street in February 2010. He told her that he was going to be deported and that he could not get a job. He wanted her to speak to his solicitor and to say that “it had not happened”. K said she had been receiving pressure and intimidation from the appellant’s friends and family including things shouted in the street and text messages from the appellant’s sister. When approached personally by the appellant she was “petrified of him”. To placate him she agreed to speak to his solicitor and did so. The solicitor was telling her that the appellant was going to be deported. She was, K said, “relentless” despite K trying to make excuses not to speak to her. Eventually she went along with her and made false admissions. The issues on appeal

[12]At the invitation of the parties we received de bene esse the evidence, on behalf of the appellant, of the appellant himself, his sister, Kevan Swaner Rose and the appellant’s former solicitor, Mrs Louise James; and, on behalf of the respondent, we received the evidence of K and L. The evidence of K and L was heard by means of a video link with Snaresbrook Crown Court. The court was invited to receive the evidence adduced on behalf of the appellant with a view to its admission in the appeal under section 23 Criminal Appeal Act 1968. We propose to adopt the same approach as that of the Court in Malook

[2011] EWCA Crim 254

(see in particular paragraphs 56-60). We shall, first, decide whether the evidence the appellant seeks to adduce is capable of belief, may afford the appellant a ground of appeal, and otherwise satisfies the terms of section 23(2). Since there is no power in the Court to remit the matter to the Crown Court for a further Newton hearing the Court must, if receiving fresh evidence under section 23, consider whether so much of the fresh evidence as is acceptable may have the effect of undermining the safety of judge’s decision. If not, the appeal must be dismissed; if so, the Court will decide in its own Newton hearing the issues arising from the appellant’s basis of plea. In the context of the present case the evidence will afford a ground of appeal if, in the judgment of the Court, it gives rise to a sensible possibility that the evidence received in the Newton hearing by HH Judge Wilkinson from K and L was false. It was argued for the appellant that K and L had colluded to give false evidence in their ABE interviews and to the Crown Court. The respondent’s case was that while K had undoubtedly made contrary admissions to the appellant’s solicitor the evidence she had given before HH Judge Wilkinson was the truth. The evidence received on appeal

[13]Oshane Everton Rose gave evidence that he lived in the same general area as both K and L. From time to time since his release from detention he had seen them in the street. On a day, probably during the summer of 2009, he was riding his bicycle home and turned into an alleyway. In the alleyway he saw K with a young man with the nickname “Bones”. His real name is Jake. He thought that K was looking at him and he stopped. She asked him “Are you alright?” He replied with another question, “Do you know who I am? You sent me to prison”. K replied, “No, it was S’s fault because you took the phone”. Bones walked away but the appellant said he asked him to stay. He did not want K to suggest that he was threatening her in any way. He continued, “I think I asked her to speak to my solicitor because she was willing to admit it wasn’t true”. Mr Rose said that he told K she had given evidence that he had a knife on him. She replied that he had not. She said it was S’s parents’ fault. When the police came they said it was rape. Mr Rose continued that in his view K’s mother had been putting pressure on her. When she agreed to speak to the solicitor he supplied his solicitor’s telephone number to her. The meeting lasted about 5 minutes. He saw K on two further occasions. On the first he asked whether she had spoken to his solicitor. She replied that she had not because she had no credit in her phone. He took her number again. On the second K and her mother had passed in a car. He denied that he had been harassing K.

[14]Mr Rose went on to speak of his conversations with L. He said that he had seen her plenty of times after his release from detention. She had said to him that she wanted to tell the truth but she did not want to get into trouble. If she got into any more trouble she would be going to Holloway. Recently, however, when he had texted L she “went a bit funny”. She said that she was not going to court. He claimed that she told him the police had come round to her mother’s house and told her that she was going to get into trouble. He said that he had shown text messages from L to his solicitor. None was disclosed in advance of the hearing and none was produced in evidence.

[15]Kevan Swaner Rose is the appellant’s younger sister. She gave evidence that her brother had provided her with K’s telephone number. Not wanting her brother “to get into any situation with K” she decided that she would ring K herself. Miss Rose said that she rang the number and K answered. She said to K, “You said you would speak to Oshane’s solicitor and tell the truth”. K replied, “Yes”. Miss Rose said that Louise James tried to get in touch with K but failed, so she rang K again. This time K gave Miss Rose a time for the solicitor to ring. K’s attitude seemed to be that she “wanted to put it right”.

[16]As to L, Miss Rose said that she and L were walking towards each other at Waltham Forest College, on an occasion between May and July 2010, when they stopped and spoke to one another. Miss Rose asked, “Alright, do you know who I am?” L replied, “I think so”. Miss Rose said she could not recall who raised the subject but they talked about the trial. L told her that she had tried to move her life on. Miss Rose continued, “She was willing to me tell her life story”. She said she was not getting into any trouble now and offered to write a letter to the solicitors. It seemed to Miss Rose that she was obviously implying that she had something to say to the solicitors and was willing to say it all. In fact L made no approach to the appellant’s solicitors.

[17]At the time of the Newton hearing Mrs Louise James was working for the Stokoe Partnership and was acting for the appellant. She gave evidence that not long after the appellant had been sentenced she had been telephoned by a friend of K and L. The friend suggested that L was agreeing that she had lied at the hearing. Mrs James told us that she advised the friend to tell L that she should visit the officer in the case, Beverley Cripps. Later, she received a telephone call from L herself. Mrs James informed us that nothing L said over the telephone to her was capable of supporting an appeal, so she took no action. Later in her evidence she produced her attendance notes. They had been recovered by the appellant’s present solicitors for the purpose of the appeal. The telephone conversation with L took place on 11 April 2005 at 3.45 pm. Mrs James asked L why she wanted to make a statement. L replied that “she feels guilty and she feels everybody blames her for Oshane’s conviction. She saw three boys that morning [at] the school gate who turned around and said to her ‘you’re the reason one of my boys is in prison’.” She told Mrs James that she could not have seen a threat with a knife because she had not been inside the room where the incident had occurred. She said she had seen a knife earlier but Ricky had put it in his pocket. She repeated that she had heard Ricky say, “Let her go”, kicked the door and called Oshane a rapist. She repeated that she saw K come out of the chute crying. K told her later what had happened: Oshane had forced her to have sex. This was in our view an important conversation for reasons we shall explain.

[18]Mrs James’ next involvement, according to her attendance notes, was on 25 September 2009 when she made a call to the Law Society ethics department seeking advice about the possibility of interviewing K. She was referred to the Code of Conduct for solicitors, paragraph 21.10, concerning the interviewing of witnesses. She was told there was no property in a witness. In consequence she decided that it was proper to make an approach to the witness and on the same day her attendance note indicates she made enquiries to obtain K’s mobile telephone number. Mrs James told us that she spoke to the appellant and satisfied herself that the appellant and his family had not been putting pressure on K. She eventually succeeded in making personal contact with K by telephone on Thursday 19 November 2009. Mrs James did not make an attendance note but typed into her computer, shortly after the conversation, a form of statement. Subsequently, on or about 12 February 2010, she added a witness declaration as to the truth of the statement and signed it. The same day the notice of appeal was submitted. We have extracted the relevant part of Mrs James’ statement at paragraph 10 above. When first answering Mr Malone’s questions Mrs James told the Court that on the telephone K said that she had lied at the Newton hearing. Oshane had not forced her into doing anything. He had not used a knife but she thought he had been in possession of a knife. No knife was used to force sexual contact. Mrs James was asked how these admissions came about. She replied, “It came out because I asked questions and I asked her to confirm it”. The court had already heard the evidence of K. She had accepted making admissions to Mrs James but she said that was as a result of Mrs James pestering her. Mrs James was asking leading questions and K was responding to the effect “Yeah, yeah, yeah”. The court therefore asked Mrs James whether, in the light of her reply to Mr Malone, she was now agreeing that K’s admissions were the result of leading questions which K was asked to confirm. Mrs James became momentarily confused and after a lengthy pause told the court “I would have asked, ‘What did you lie about?’.” Mrs James did not make a contemporaneous note of the conversation and her narrative statement does not disclose exactly how the information provided by K emerged. Mrs James accepted that she had told K that the appellant was in danger of being deported; furthermore, she had advised K that although she could not guarantee there would be no prosecution for perjury, in view of the fact that K was aged only 13 when she gave evidence, a prosecution was unlikely. Mrs James said that she made it clear to K that she should obtain independent advice. Mrs James was adamant that she placed no pressure upon K. In cross-examination Mrs James agreed that K had made it clear she did not wish the matter to go further without discussing it with her mother first. Mrs James made no attempt to contact K’s mother. Conscious of the fact that K might not be willing to make a formal statement Mrs James had instead set about typing her account of K’s admissions in her draft statement.

[19]K gave her full name and confirmed that she had been living at the same address since the age of 12 years. She is now aged 19 years. She and L had drifted apart after the appellant was sent to detention but they saw one another from time to time. K agreed that she had spoken to a solicitor about the appellant. She was asked to explain how that came about. She said the appellant came up on his bicycle when she was in an alleyway with “Bones” whom she knew as Jake. The appellant stopped. He was telling her what had happened to him since the hearing. He was being deported and it had prevented him getting a job. He wanted her to speak to his solicitor; he was not happy. Asked what affect these events had upon her, she replied, “It was scary. It was calm but it was intimidating”. Eventually there was a call from a solicitor. In the meantime, there had been calls to her phone from numbers unfamiliar to her and she had not answered them. K’s account of the conversation with Mrs James was that it comprised the solicitor putting questions and she was agreeing with them. She was asked by Mr Reece for the respondent whether she knew the significance of the questions about the knife. She replied “Yes, so he could get off”. She said that she had just agreed with the questions put to her. Asked why she was agreeing to the questions, she told the Court that she thought that if she agreed it would be all over. It was not true that there was no knife. She had said “Yes” to Oshane because she wanted to make him happy. She did not intend to have an argument with him in the street, especially when her friend Jake had walked away leaving her alone. She did not agree that Jake stayed with her. Mr Malone asked in cross-examination about Bones. She agreed that the appellant told Bones to stay where he was but he had still walked off. She agreed that she had told the appellant that it was S’s parents who got the police involved. She agreed, as she had told Judge Wilkinson at the Newton hearing, that if they had not arrived and had the police not become involved, she would not have made any complaint. She could not recall saying to Oshane in the alleyway that she had been too embarrassed to admit that she had agreed to sexual contact with him, but she would not be surprised if she had said it. Her friend had just walked away and she could imagine saying “whatever”. She did not agree that she admitted telling Oshane she had lied to the court but she did accept that she told the appellant she would speak to the solicitor and admit that she had. She accepted that the appellant was not overtly threatening towards her but she would not describe the confrontation as friendly. Her frame of mind was that if she admitted it was a lie it would all be over. When she made that agreement she did not realise that “all this would come up. It’s mad”.

[20]K agreed that she had spoken to Kevan Rose on the telephone before the solicitor rang her. She denied saying to Kevan, “I’ll tell the truth”. If she had said something like that “I was bullshitting”. She admitted that she was giving the impression that that she was going to help Oshane. That is what she did when the solicitor phoned.

[21]Of the conversation with Mrs James, K expressed the view that she should not have been called in the first place. Her impression was that the solicitor kept trying to get something out of her. At the time of the phone call K said she was with friends and was drinking. She agreed that she had not mentioned this in her statement of June 2010, but she explained that the question was not asked. She accepted that Mrs James told her that everything she said must be of her own free will with no pressure on her. Although she could not recall being advised to obtain separate legal advice she might have forgotten that. She said that Mrs James did give her a warning about the implications of changing her evidence. She agreed that she had told Mrs James that she had not been put under any pressure by Oshane to change her account. When Mr Malone suggested that she had told the solicitor that she had lied at the sentence hearing, K responded, “I told her what she wanted to hear. I probably did”. She did not accept that she was volunteering information to the solicitor and the solicitor was testing it. She told Mr Malone that the solicitor was asking whether she would do this or do that. It was not a good conversation. K told the court that she had told the truth at the Newton hearing. There came a point during Mr Malone’s cross-examination when K declined to answer any further questions because he was not accepting the truth of what she was saying. The witness became sullen and obstinate and the Court curtailed further cross examination.

[22]L confirmed her full name. She is now aged 18 years. She still lives in the Walthamstow area but not at the address where she was living in 2004 and 2005. She confirmed that she had told the truth at the Newton hearing. She had never told anyone that it was not the truth. She agreed that she had telephoned the appellant’s solicitor in 2005 because she was getting pestered by people suggesting that her evidence was not true. She denied saying that she wanted to tell the solicitor she had lied. She remembered to this day seeing the knife but she had not been in the chute when the incident had occurred and she could not say that a knife had been produced to K. L became extremely angry at the suggestions being put to her to the effect that she had told lies at the Newton hearing and that she had said since the hearing that she had been lying. L, in colourful and sometimes foul language, made her feelings towards the appellant known. L referred to the appellant as a paedophile and a rapist. Of her conversation with Kevan Rose at Waltham Forest College, L said that she was being begged to help her brother. She had not volunteered to help him. Is the fresh evidence capable of belief and would it afford the appellant a ground of appeal?

[23]As we have said at paragraph 12 above, in the circumstances of the present case the test the Court will adopt is whether the fresh evidence establishes a sensible possibility that the evidence given by K and L at the Newton hearing was untrue. We accept that the appellant made no overt threat to K when he met her during the summer of 2010. However, we have no doubt that, contrary to the thrust of the appellant’s evidence, K felt worried and intimidated by the confrontation. The appellant accepted that he was angry about the predicament in which he found himself. Since his release from detention he had been and still was at risk of deportation with other members of his family. We are satisfied he made that quite clear to K and was seeking her agreement to help him. We accept the evidence of K that she was giving reassurances to the appellant with the intention of bringing the confrontation to an end as soon as possible. As she put it, she told him what he wanted to hear “to bury it”. It is, in our view, significant that despite attempts made to contact K through the number she had given to the appellant, she did not at first respond to calls. We found K’s explanation of the circumstances in which she made and her motivation for making concessions to the appellant compelling. We reject the appellant’s evidence to the effect that K was taking the lead. In view of the agreed circumstances of the meeting we found the appellant’s account of K’s manner towards him to be highly improbable. We do not accept the appellant’s evidence that K just volunteered her assistance. The circumstances of the meeting, chance or not, are, on the contrary, suggestive of a determination by the appellant to achieve his objective. The appellant had Mrs James’ telephone number readily available to provide to K when the occasion arose.

[24]K made appropriate concessions in evidence. She did not attempt to deny that she had been prepared to assist the appellant. We accept K’s evidence that she wanted to bring to a conclusion the events of 2004 and 2005 and told Mrs James that she was prepared to accept that she had lied. Her purpose was to rid herself of the problem which her evidence had created (and was still creating) for her as well as for the appellant. We accept K’s assertion that she had not taken in the full implications of her agreement to speak to the appellant’s solicitor. Her anger at the suggestion that she had lied at the Newton hearing and was again being challenged about that evidence was palpable and genuine. We have reached a similar conclusion upon the evidence of L. L’s conversation with Mrs James in April 2005 is consistent with the evidence which she gave both to HH Judge Wilkinson and to this Court. It is not consistent with any acknowledgement in the intervening period that she had not told the truth during the Newton hearing. While we accept that K did give both the appellant and Mrs James the impression that she was prepared to retract the evidence she had given at the Newton hearing, it was a retraction which itself was, we are quite satisfied, untrue. The underlying assertion made by the appellant is that these two 12 year old girls put their heads together to give a false account. That assertion is contradicted by the sequence of events so carefully noted by the sentencing judge. L’s evidence has throughout been consistent. She was interviewed in detail by the police within hours of the incident. As soon as the police arrived K was taken to a police car and in the course of her conversation with the officer made what the judge described as a “full complaint”. She too gave a consistent account on the following day. In the meantime there was limited, if any, opportunity for collusion. It was at the hearing, and remains, noticeable that L was careful to explain that she could give only limited information. She was not present in the room where the offence had taken place. The circumstantial detail she was able to add was, on the other hand, confirmatory of the truth of K’s complaint. We have examined with some care the contents of the ABE interviews. We regard the prospect that these two 12 year old girls had given similar but not identical, yet false, accounts as highly improbable. Each described her experience from her own separate and individual perspective. There is no sign of pre-arrangement or rote. While, therefore, we have admitted the evidence adduced on behalf of the appellant as capable of belief, we are quite satisfied that it does not afford the appellant any ground of appeal against sentence. We have heard nothing which is capable of undermining the safety of the judge’s determination at the Newton hearing and for that reason the appeal is dismissed.

[25]We have not been required to reach a conclusion whether, as Mrs James told us, K volunteered “to tell the truth”, or that K was responding affirmatively to Mrs James’ leading questions, or both, because it is common ground that K did indeed make “admissions” to Mrs James. We wish to make it clear that while we are satisfied Mrs James’ approach to the witness K was made with the best of intentions, it was unwise, open to misinterpretation and ran the risk of a miscarriage of justice. The witness to whom she was making an approach had given evidence as a 13 year old child. Mrs James’ client had been roundly and for compelling reasons disbelieved in the same hearing. In our opinion, the prudent course would have been to advise her client to make an application to the Criminal Cases Review Commission.