L & R v R. [2011] EWCA Crim 649

[2011] EWCA Crim 649

Case No 201000323 B2 AND 201001232 B2

COURT OF APPEAL (CRIMINAL DIVISION)

Date 2 nd December 2009

ON APPEAL FROM

Southampton Crown Court before HHJ Ralls QC

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

Date Date: 23/03/2011

Before

LORD JUSTICE PITCHFORD

MR JUSTICE TREACY

HHJ KRAMER QC

Between

L & RAppellants

REGINARespondent

Matthew Scott (instructed by Footner & Ewing - Solicitors) for L

Michael Vere Hodge QC and David Reid (instructed by Eric Robinson - Solicitors) for R

Christopher Parker QC (instructed by CPS) for Respondent

Hearing Hearing date: 2nd March 2011

Judgment

[1]This is an appeal against conviction with the leave of the full court. The alleged victim is a child born on 31 October 2007 in respect of whom an order has been made under section 39 Children and Young Persons Act 1933. The appellants are the parents of the child whom we shall call B. For this reason any report of this judgment shall be anonymised and we shall describe the appellants as L and R respectively.

[2]The appellants were jointly charged in an indictment containing six counts. They were tried at Southampton Crown Court before HHJ Ralls QC. On 7th December 2009 L was convicted upon count 3 in which he was charged with inflicting grievous bodily harm to B, contrary to section 20 Offences Against the Person Act 1861, and count 4, in which he was charged with assaulting B thereby occasioning him actual bodily harm, contrary to section 47 Offences Against the Person Act 1861. On 26 February 2010 L was sentenced to 30 months imprisonment upon Count 3 and 12 months imprisonment concurrent upon Count 4.

[3]R was convicted in count 6 of an offence of cruelty to a person aged under 16 years contrary to section 1 (1) Children and Young Persons Act 1933. The particulars were that R, between 1 March and 24 April 2008, having responsibility for B, wilfully neglected, abandoned or exposed him in a manner likely to cause unnecessary suffering or injury to health. R was sentenced to 35 weeks imprisonment suspended for two years and was required to undertake 200 hours unpaid work under the suspended sentence order.

[4]At the close of the prosecution case L was found not guilty on the direction of the judge of count 1 in which he was charged that on a day in January or February 2008 he inflicted grievous bodily harm on B and count 2 (to which count 3 was an alternative) in which he was charged with causing grievous bodily harm to B with intent, contrary to section 18 OAPA 1861. As to count 5 which charged both L and R that on a day between 12 and 23 April 2008, having the responsibility for B, wilfully neglected abandoned or exposed him in a manner likely to cause unnecessary suffering or injury to health, the prosecution offered no evidence and formal verdicts of not guilty were entered.

[5]The full court gave leave to appeal on 13 December 2010. L has leave to argue that the trial judge should not have admitted in evidence, on the application of R, an interview under caution between L and the police which took place at 4.45 pm on 2 May 2008 during which he made relevant admissions. R has leave to argue that in respect of the same interview the judge failed to provide the jury with adequate directions and, secondly, failed to summarise evidence relevant to R’s case to the effect that B bruised easily. The prosecution case

[6]When B was born L was aged 19 and R was aged 21. Suspicion as to B’s condition did not arise until April 2008. On 11 April R took the baby to Bitterne medical walk-in centre in Southampton reporting that he had been unwell and vomiting for two days. No external injury was observed. R returned with the baby 8 hours later saying that he was still vomiting. A referral was made to University Hospital, Southampton. A small bruise was found near B’s mouth which R said had been caused by B himself with a rattle. A doctor concluded that B had a cold. On 17 April B was routinely weighed. His weight had fallen but he seemed otherwise to be well in himself. Things were very different on 23 April. When R took B to the medical centre he was found to be vomiting and coughing and he had lost weight. B was emaciated and covered in bruises. R was again referred to the hospital where a full examination took place. It is unnecessary to describe in detail the evidence of the expert medical witnesses since that evidence is largely uncontroversial. In summary it was the prosecution case that:(1) At some time in January or February 2008 when B was aged 3-4 months B had suffered a fractured rib. This injury had formed the subject of Count 1 against L.

(2) At some time between late March and about 11 April, B had suffered multiple fractures of his ribs together with pre-retinal and sub-dural haemorrhages. These injuries were consistent with non-accidental gripping and shaking. They formed the subject of Counts 2 and 3 against L.

(3) On 17 April, B was weighed naked by a health visitor, Helen Mullins, at a baby clinic held at Allhallows Church. There were no bruises seen. On his admission to hospital on 23 April, B had 20-30 bruises all over his body. They formed the subject of Count 4 against L and Count 6 against R. Investigation and interviews

Investigation and interviews

[7]Both parents were interviewed under caution (but not under arrest) on 24 April 2008. At that stage medical investigation was in its early stages and they were asked whether they could explain the bruises on B’s body. Both gave “innocent” explanations for some of the bruises but neither could account for the very considerable number found and neither blamed the other.

[8]The results of the skeletal survey were known on 24 April and the police were informed. A decision was made by the investigating officer to withhold this information from the parents until after their arrest on suspicion of causing grievous bodily harm on 2 May 2008.

[9]L was interviewed from 10.20 am to 1.25 pm with a break between 11.54 am and 12.16 pm. He declined the services of a solicitor saying that he had nothing to hide. He agreed only that he had tickled B while playing. Possibly, he said, he had caused inconsequential bruising but that was all.

[10]L was returned to the cells and R was interviewed. She was the first of the parents to be informed of B’s rib fractures. She could give no explanation and insisted that neither she nor L was responsible. She thought that B might have bruised easily because she did herself, but she could provide no explanation for the number of bruises discovered on 23 and 24 April save for ordinary handling or tickling by L in play, which B seemed to enjoy.

[11]L was interviewed for a second time between 4.45 pm and 5.25 pm on 2 May. He again declined the services of a solicitor. He informed the officers that he had heard of retinal haemorrhages from the hospital and looked up the condition on the internet. He knew that they could be caused by shaking. He denied that he had shaken B. He was then told that B had suffered 10 to 12 rib fractures, front and back. L expressed shock. He said he did not have a clue how they were caused. All he had done was to tickle his son. At page 18 of the interview it was L who raised squeezing for the first time. He said, “he would have told me, he would have cried if I had squeezed him”. The officers explored with L the possibility that he could not tolerate the baby crying. He denied it. He told the officers (page 22) that there was an occasion when a plastic nappy box had fallen on R but insisted that could not have caused the fractures. It was believed this incident, about which he had informed R, occurred on or about 9 April. L told the officers of a further occasion, believed to have been on or about 22 April when (pages 23-25), while R was out of the house, the baby had gone floppy in his arms. He had panicked and tapped the baby to get a response. At page 26 DC Scorey said to L:

“People don’t do these things on purpose. People do these things in a fraction of a second when, for some reason, the red mist comes down over them and they snap because of the crying and the fact that you have been kept awake by the baby. You have done everything you possibly can to console your baby and you are at the end of your tether because you can’t make your baby quiet.”

L replied:

“I have got, I have got to admit I have squeezed him ... not hard ... but I have done the full like “Shut up”, sort of thing but I have never, ever, I swear to God I would never do it by purpose, you know.”

L went on to explain that B slept in the bedroom with himself and R. One night B woke up crying. While R remained asleep he got up to deal with B. He said he tried to calm him down. L was “really tired” and it was “like he wouldn’t shut up”. L insisted he had not done it on purpose and he denied that he had shaken B. At page 28 L said:

“... it was like, “come on, shut up” and that was it and it was like a split second bit of strength, that was it.”

At page 29 the following exchange took place:

“DC Pain: You have got him out and what have you done? Just tell us what it was? L: Well I was walking round with him and he wouldn’t stop crying, and, sort of, I didn’t think in my head I am going to do it ... I didn’t think that at all. .. like it just happened ... I didn’t say ... squeeze in itself sounds really bad, but put a bit of pressure on that was all ... DC Pain: What was the result of putting that pressure on, did it help. L: No, it yes, no. I just knew I had done bad although I put him back in his cot, and that ain’t it though, I know it ain’t it. I can’t be it.”

L demonstrated to the officers how he had held the baby in both arms and squeezed. At page 32 he said he had never told R about this incident because he thought it would cause an argument. He went on:

“It’s hard you know. It just happened so quick you know. I was just looking after him. He screamed and screamed and screamed. You know, it’s like ...”

Asked when this had occurred, L said he thought it was probably towards the end of February. He said he had felt guilty about it ever since. There had been no repetition. He denied that he had used sufficient force to fracture any ribs and repeated his denial that he had ever shaken B. Application by L to exclude interview

[12]L made an application to the judge to exclude the evidence of the 4.45 pm interview. Mr Pascoe QC relied on the psychiatric report of Dr J K O’Shea and the report of Dr Scull, obtained by the prosecution.

[13]Dr O’Shea was asked to examine the appellant for his opinion whether he was fit to stand trial. L had first undertaken a series of psychometric tests, including the Wechsler adult intelligence scale. Dr O’Shea concluded that while L was fit to stand trial he had problems with tasks which were largely verbally based. Although he could not make a formal diagnosis, it was his opinion that there were features of the appellant which showed signs of autistic spectrum disorder. He pointed to L’s developmental history of difficulty in coping with groups, understanding the needs of others, a tendency to be in a world of his own, and frustration with other people and his own inability to achieve. In Dr O’Shea’s opinion L could be suggestible particularly when under pressure and when required to respond to complex statements or questions. If L gave evidence Dr O’Shea advised that a confrontational style of questioning, far from eliciting the truth, may make erroneous answers more likely.

[14]Dr Scull agreed that the appellant was suggestible. There was a risk that if he was put under pressure he would give answers in which he did not believe.

[15]No oral expert evidence was called in the voir dire, although the judge heard evidence from the police officers who conducted the interview. The prosecution and the defence proceeded on an agreed basis. The prosecution accepted that if it had been appreciated at the time the appellant was interviewed that he had suffered these disadvantages (which it had not), it is probable that an appropriate adult would have been requested to accompany the appellant in interview (see code C paragraphs 1.4 and 3.5). By code C, paragraph 11.17 the role of the appropriate adult would have been to(i) ensure that the detained person understood what was happening to him,

(ii) support, advise and assist the detained person,

(iii) observe whether the police were acting properly and fairly, and to intervene if they were not,

(iv) assist with communication where necessary, and

(v) ensure that the detained person understood his rights, and the appropriate adult’s role in protecting him. It was conceded that at the commencement of the disputed interview the appellant was told that he was entitled to legal advice but he was not reminded that he was entitled to delay the interview in order to obtain it. This constituted a breach of code C paragraph 11.2.

[16]The submission made on behalf of the appellant was that the absence of an appropriate adult rendered the interview process unfair. He had embarked upon the interview without the assistance either of a solicitor or an appropriate adult when the police knew and he did not that B had suffered several fractured ribs. It was submitted that the style of questioning was, on the one hand, confrontational and, on the other, sympathetic in that the officers repeatedly told the appellant that they were not suggesting he had harmed his child on purpose. In view of the agreed expert psychiatric opinion, there was a risk that the admissions elicited in interview were unreliable. The judge was invited to exclude the interview under both section 76 and section 78 Police and Criminal Evidence Act 1984.

[17]In its relevant parts section 76 provides as follows:

“(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of the section. (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) ...; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” (a) ...; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”

[18]Section 78 provides in its relevant parts:

“(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring the court to exclude evidence.” (2) Nothing in this section shall prejudice any rule of law requiring the court to exclude evidence.”

[19]The application was resisted by the prosecution. It was pointed out by Mr Parker QC that the statutory test under section 76 was whether the confession was obtained in consequence of things said or done which were likely to render the confession unreliable. It was submitted that the appellant had himself volunteered his description of the “squeezing” incident. No such event had been suggested to him. Furthermore, the appellant had in other passages of his interview resolutely denied that he had injured his child. Even after his disclosure that he felt guilty about squeezing B he denied that he could have caused injury by that means and repeated his denials that he had ever shaken the child. While it was accepted on behalf of the prosecution that L’s psychometric profile disclosed a tendency to suggestibility, it was not the case that on the present occasion the confession was likely to have been rendered unreliable by things said or done by the officers. As to the disadvantage to L of withholding information until after commencement of the interview, Mr Parker pointed out that the appellant already knew that B had suffered multiple bruising, fluid around the brain, vomiting and weight loss. It was not a foregone conclusion that, even with the assistance of an appropriate adult, the appellant would have sought legal advice or would have chosen not to respond to questions concerning the rib fractures. Judge’s ruling on L’s application to exclude

[20]The judge gave a preliminary ruling on the morning of 2 December 2009. He offered to provide full reasons in writing later but the prosecution declined his invitation. The judge said that while he had been minded to admit the evidence he had on reflection changed his mind. He would not himself have spotted that the appellant had an autistic tendency or any other vulnerability but for the views expressed by the experts, he said:

“I have to give them very, very serious consideration and when they said that this man can be suggestible under pressure, when he is required to answer complex statements and confrontational style, may in fact give erroneous answers, I am concerned about that in the context of what actually is now known, and I have to take account of the fact that we now know his mental condition and we know also what happened in interview. It seems to me, whilst I make absolutely no criticism whatever of the police, it seemed to me that they were acting in good faith ... in a very professional fashion, nevertheless, the introduction of the further injuries, as it turned out, with a man of this vulnerability was a risk, a risk that they were unaware of, but a risk nevertheless, that seems to me to require me to have the closest scrutiny to what actually happened and what was said. My view is that had there been an appropriate adult, it is quite reasonable to assume ... that the appropriate adult, when he was aware that this new set of injuries was being introduced ... [would] have said that that required some delay and some fresh consideration and advice from a solicitor. The matter now taking on a rather different perspective, and ... had there been a solicitor, bearing in mind what occurred later, ... the solicitor was likely to have said then, ‘I do not think you should answer questions, at least until it becomes clear what the injuries are’.”

The judge then referred to the submission made on behalf of L that his answers did not in any event constitute a confession. The judge continued:

“... it must be legitimate for the defendant ... to say to the jury ... “don’t accept this as being a confession for there are a number of reasons, (1) because it is ambiguous, (2) it does not amount to more than an admission of some squeezing ... but how then can one deal with that without putting the full picture known to us before the jury, namely in respect of his known medical condition? And as I indicated, it seems to me that that of itself is a real concern, because...the agreed medical evidence is that he is vulnerable, and Mr Pascoe feels obliged to put it before the jury, ... the jury are given information which, notwithstanding the sort of directions the judge would give them about not seeking to hold it against him, it may nevertheless colour their assessment against him in an adverse way and I find that, at the end of the day, clinching it. It seems to me it is a close run thing, if I may say so, and I have to exercise discretion which is a discretion to ensure fairness ... I am satisfied after all that ... that fairness demands that I should exclude it under section 78. I am less impressed about section 76 but I feel under section 78 ... that the evidence should [not] be admitted.”

[21]Before we turn to L’s criticism of the judge’s ruling we need to explain what occurred at the close of the prosecution case. R’s application to admit L’s ‘bad character’

[22]The prosecution case was that the expert medical evidence established that B’s recent fractures, inflicted 4 - 5 weeks before his final admission to hospital, and the constellation of bruises acquired in the few days before his admission, were non-accidental in nature. The jury would be invited to infer that, as between the principal suspects, L was the perpetrator of those injuries. The case against R was that, knowing of L’s propensity to lose his temper, to drink alcohol inappropriately and to handle B too roughly, R had exposed B to harm at the hands of L, by her neglect. In response to the enquiries by the medical professionals and the police, R had throughout insisted that neither she nor L was responsible for the baby’s injuries. There was no explicit allegation of assault against R, either in the evidence or in the indictment. Nevertheless, Mr Vere Hodge QC, on behalf of R, was concerned that L’s denial left open the possibility by implication that R was responsible for at least some of B’s injuries. The possibility that someone other than the parents was responsible for non-accidental injury had effectively been excluded by the evidence. R now wished to establish that as between the two accused, it was L who had caused the injury but that she had no reason to suspect either that he had caused or that there was a risk that he might cause injury. She wished to rely upon L’s admission that he had not informed her of the “squeezing” incident as justification both for her defence and her willingness to defend L during the medical and police investigation.

[23]R applied for the admission of the excluded interview between L and the police through the gateway provided by section 101(1)(e) Criminal

Justice Act 2003:

“(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – (a)–(d) ... , (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) ..., or (g) ... .” (a)–(d) ... , (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) ..., or (g) ... .”

[24]Secondly, Mr Vere Hodge sought the admission of the interview under section 76A Police and Criminal Evidence Act 1984 which in its relevant parts reads: “(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –(a) ...; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proof to the court on the balance of probability that the confession (notwithstanding that it may be true) was not so obtained. (3) Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in sub-section (2) above to be proved in the proceedings on the balance of probability.” (a) ...; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proof to the court on the balance of probability that the confession (notwithstanding that it may be true) was not so obtained.

[25]We have been provided with Mr Vere Hodge’s skeleton arguments in support of the applications. He submitted a skeleton argument in respect of the application under section 76A and a separate skeleton argument in support of the application under section 101(1)(e). Both are dated 3 December 2009, the day after the judge had exercised his discretion under section 78 PACE 1984 to exclude the interview. The application was made on 7 December 2009 immediately before the opening by Mr Pascoe of the case for L. As to the application under section 76A, paragraph 2 of his skeleton reads:

“On 2 December 2009 the court excluded this confession under the discretion of section 78 PACE 1984. The court also heard an application on behalf of L to exclude the confession under the provisions of section 76 PACE 1984; it refused so to do.”

It was contended that “responsibility for [B’s] injuries will be a matter in issue between the defendants. [L’s] confession in his police interview that he [squeezed] [B] on one or two occasions is relevant to that issue and prima facie admissible under section 76A(1) of the Act.”

[26]The applicant accepted the burden, to the civil standard, of establishing that the confession was not obtained by things said or done which, in the circumstances, was likely to render the confession unreliable. R observed that the medical evidence relating to L’s mental state had not been served on her. R had never been a party to any agreement as to the state of that evidence. At paragraph 11 of the skeleton it was asserted:

“11. To make it clear, so far as [R] is concerned any medical evidence which might support the contention that the police ought to have, but failed, to ensure that [L] had the benefit of legal representation and/or an appropriate adult during interview and/or that his confession in that interview is unreliable, is disputed.”

Mr Vere Hodge adopted the prosecution’s arguments upon the voir dire already held and continued at paragraph 13:

“13. On the question of whether [L’s] confession is rendered unreliable by virtue of his suggestibility, those representing [R] respectfully adopt the arguments put forward by the Crown ... and ask the court to recall the playing of the tape of the interview concerned and [L’s] answers and demeanour demonstrated therein. 14. The court can therefore be satisfied on the balance of probabilities that [L’s] confession was not obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable.”

[27]In his second skeleton argument submitted in support of his argument under section 101(1)(e) Mr Vere Hodge sought to adduce evidence not only of L’s disputed interview but also of his three previous convictions in 2003, 2005, and 2009. Further, he sought the admission of evidence relating to 12 previous incidents between 2003 and 2005 during which, it was revealed by social services files, L had behaved while in care in an aggressive or violent manner, particularly in response to provocation by other residents. Mr Vere Hodge sought the admission of L’s disputed police interview as evidence of bad character “should the court rule that the conduct concerned has nothing to do with the alleged facts of the offences with which [L] is charged”. The skeleton argument proceeded to explain the probative value of the evidence in relation to the matters in issue between the defendants. It was pointed out that if the disputed interview was admissible under section 101(1)(e) the court had no discretionary power of exclusion. Anticipating an argument that the application was made out of time, it was submitted that the defence of R reasonably assumed that L’s interview would be admitted in the prosecution’s case and had no reason to make such an application until the judge had exercised his discretion to the contrary under section 78. This Court has been provided with a transcript (volume II) of the discussion and ruling made by the judge. At page 4 Mr Vere Hodge explained that if the application for admission of the disputed interview was successful he would not seek the admission of the further aspects of bad character upon which R relied. Mr Pascoe invited the judge to defer consideration of both applications and to permit him in the meantime to open L’s case in order “to give us time to decide whether or not to pursue it” (page 5A). The judge indicated his preference for giving a ruling before the trial proceeded further. Mr Vere Hodge introduced his application in the alternative: either the evidence was admissible under section 76A or it was admissible under section 101(1)(e).

The judge was taken to section 76A and he observed (page 14E-F):

“It seems to me that the position under section 101 is different. It seems to me [that with] bad character on the face of it, as was said in Musone, there are no controls provided it meets the criteria.”

Mr Vere Hodge said:

“Well we take your Honour to this because we see there being two separate routes and it would be wrong to mention one without the other.”

Mr Vere Hodge went on to point out that the judge had not so far made a ruling under section 76, an observation which the judge acknowledged. Mr Vere Hodge submitted (page 15E-G) that the evidence sought to be admitted was a confession within the meaning of section 82 PACE 1984 which provides:

“(1) In this part of this Act ... “confession” includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.”

He then directed his submissions to section 101(1)(e) of the 2003 Act.

[28]Mr Pascoe’s response was not that the judge had already ruled the confession admissible under section 76 but (at page 21B-D) he pointed out his intention to argue that the replies given by L in interview did not constitute a confession. He proceeded only to address the judge as to the applicability of section 101(1)(e). His principal submission was that it was not the purpose of L’s defence to undermine the case for R. Mr Pascoe said nothing at all about his preparedness to adduce his expert psychiatric evidence in view of R’s refusal to agree it. In his skeleton argument in support of his resistance to the application Mr Pascoe made no reference to section 76A and confined his submissions to the “important matter in issue”. His skeleton argument concluded with the submission that if the evidence was now to be admitted before the jury, L could not receive a fair trial. Judge’s ruling on R’s application to admit

[29]The judge gave his ruling at the close of argument (page 27F) but indicated his intention to provide his reasons in writing. He concluded (page 28E) that R’s case was that B’s injuries were accidental. If they were deliberately caused then it was not she but L who was responsible. Her case was that she was not guilty of Count 6 because she was unaware of the risk that B would suffer injury as a result of L’s conduct. The “confession” evidence provided an instance of non-accidental force applied by L to B which L conceded was wrong but which he had kept secret from R. This evidence tended to advance R’s defence. The judge found (page 28G-H) that he had no residual discretion to exclude the evidence. Although he had earlier ruled that the confession could not be adduced by the prosecution “the position now is a different position”. The judge provided counsel with his written reasons on 17 December 2009. They were:

“The application concerns the admissions made by [L] in his police interview on 2 May 2008 when he said that he had squeezed [B] on at least one occasion ... I had already ruled that this interview should not be introduced as part of the Crown’s case pursuant to my powers under section 78 of the Police and Criminal Evidence Act. My ruling in respect of that matter is on the record and need not be repeated here. The application to re-introduce this interview as relevant bad character evidence, at the behest of a co-defendant, raises different issues. I have no difficulty in concluding the facts admitted (relating to the squeezing incident) themselves constitutes reprehensible behaviour and come within the definition of “bad character”.... It seems obvious that, in the circumstances described, the jury will need to ask themselves whether they are sure that the injury is non-accidental and then, if so, by whom they were caused. This is clearly at the centre of the case and constitutes “an important matter in issue between the defendant and the co-defendant”

. Furthermore, during this interview [L] also told the police that at the time of the squeezing incident [R] was in bed asleep and unaware of what had happened. He also stated that he had never mentioned it to her until the interview on 2 May. In my judgment this is an important issue which she can rely on in putting forward her defence to charge of cruelty. I have no doubt that these are matters of substantial importance in the context of [the] case as a whole. I conclude therefore that they should be admitted under section 101(1)(e). The court has no power to exclude evidence of bad character which is admissible at the behest of a co-defendant once it has passed the test set out above. In particular the court has no power under section 101(3) or section 78 PACE 1984. See R v Musone

[2007] 2CrAppR 29

.” The judge accepted Mr Vere Hodge’s argument for the extension of time for the application beyond the prescribed time limit under Rule 35.8 Criminal Procedure Rules 2005.

[30]Contrary to the indication given by Mr Pascoe’s skeleton argument, no application was made on behalf of L for the discharge of the jury and separate trials. Mr Pascoe proceeded to open L’s case and L gave evidence. Summing up

[31]The judge was faced with giving directions to the jury which did justice to both defendants in these rather unusual circumstances. In the course of summarising L’s interviews with the police he said (summing up transcript volume 3, page 49D-50D):

“In relation to his third interview, ... it is very important that you understand that while it may be said he has made comments that are adverse to himself, i.e. he has made admissions that he has on one occasion squeezed the child ... he has not made what one could describe as a confession. I say that because even though he accepted in the course of that interview that he had squeezed the child on more than one occasion, he was careful to qualify that admission by saying that that squeezing was for a split second and that the force used was nowhere near enough to cause these injuries, and that it occurred in circumstances where he had no intention to cause any harm or hurt. ... I am not for one minute suggesting that you cannot properly take it into account. I am just asking you to approach it in a measured way, fairly. That is all it comes down to.”

The

judge described L’s explanation for this part of his interview at transcript volume 3, page 53G-54C:

“As for squeezing he said it is not as it sounds in the tapes. He said, “I was simply holding him a little tighter than usual. I was not squeezing him.”

He told you what happened. He said he had been walking around the flat. The baby was crying. R was in bed asleep and perhaps for about 45 minutes. He said, “I brought him up close to my chest a bit tighter than usual and then I put him back in the cot”. And he said, “I did have patience with him”. The reason he said it to the police, he said, “I thought it would be an end to it. The fact that I said I felt bad was not true. I didn’t feel anything. I didn’t feel guilt. I exaggerated because I thought it would be over”. You may remember that he demonstrated what he said he meant by the expressions he had used and how he held the child, cradled in his arms and demonstrated what he did.” L agreed in evidence with Mr Vere Hodge that he had not informed R about the squeezing incident. He said to Mr Parker in cross-examination that he saw no significant changes in B after “he had done it”.

[32]As to R’s evidence, the judge reminded the jury (volume 3 page 64E) that in answer to Mr Pascoe R had said, “I accept now that the injuries were not accidental injuries. I believe it was L. I believe in a split second he got angry”. She said that she had never witnessed anything that had made her believe that L had injured B (page 53E). L’s ground of appeal

[33]Mr Scott argued that the judge ruled that L’s confession would have been admissible on an application of section 76(2)(b) when, upon the findings he made in relation to the application to exclude under section 78, he should have ruled it inadmissible. In the alternative, Mr Scott argued that in consequence of a misunderstanding counsel had assumed that the section 76A issue had effectively been foreclosed by the decision the defence believed the judge had made under section 76, namely that the prosecution had shown beyond reasonable doubt that the confession was not likely, in the circumstances existing at the time, to have been unreliable in consequence of things said or done.

[34]This Court invited Mr Scott to consider what steps the defence of L would have taken had it been aware that the issue under section 76A was a live one. Mr Scott replied that he would have made sure that Dr O’Shea was available to give evidence in the voir dire. Discussion

[35]We have no doubt that the judge had not made a ruling upon the defence application under section 76 PACE 1984. We can only conclude that Mr Scott’s recollection is at fault. We cannot accept that counsel for L were unaware that the judge, counsel for the prosecution, and counsel for R were all of the same mind, namely that no such ruling had been given. Were it not for the fact that the application which was made on behalf of R was put in the alternative, we would have little difficulty in concluding that the defence for L saw tactical advantage in not attempting to justify with medical evidence its resistance to Mr Vere Hodge’s application under section 76A. That tactical advantage would have been obtained in consequence of Mr Vere Hodge’s undertaking not to pursue his wider bad character application if he was successful in re-introducing the “confession”. Mr Pascoe appears to have confined his submissions to(1) an assertion that L’s replies did not constitute a confession and

(2) that L’s defence did not put in issue any responsibility of R for causing B’s injuries. Having regard to the way Mr Vere Hodge and the judge both appear to have approached the application, namely that section 101(1)(e) CJA 2003 was conclusive, we have a lingering concern that Mr Pascoe may have been misled into thinking that unless he could resist gateway (e) the evidence was bound to be admitted.

[36]The judge and defence counsel appear to have approached the issue of admissibility of the “confession” as if there were two separate and alternative routes to admission, either(1) as evidence relevant to an important matter in issue between the defendant and a co-defendant (section 101(1)(e)) or

(2) as evidence of a confession proved on balance to be admissible under section 76A(2)(b). We can think of no other explanation for the judge confining his consideration of admissibility to the terms of section 101(1)(e). Had the judge understood that Mr Vere Hodge was conceding that it was necessary for him to satisfy the terms of section 76A, it would have been inevitable that he would have required him to do so and would have given a ruling upon the issue. Whether as a consequence of Mr Pascoe’s misunderstanding or of the judge’s failure to apply section 76A(3), we conclude that the appellant was denied a ruling as to the reliability of the confession which he should have received.

[37]In our judgment, therefore, Mr Parker’s submissions for the respondent in this appeal are correct:(1) No ruling was made by the judge under section 76 or section 76A;

(2) If the evidence whose admission was sought by R was evidence of “confession” within the meaning of section 82 (which it plainly was) it could only be admitted if R satisfied the condition precedent provided by section 76A(2)(b), whether or not the evidence also happened to satisfy the terms of section 101(1)(e);

(3) Section 98 Criminal Justice Act 2003 defines evidence of bad character for the purposes of section 101 as follows:

“98. “Bad Character”

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or a disposition towards, misconduct on his part, other than evidence which – (a) has to do with the alleged facts of the offence with which the defendant is charge, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” In interview L was being asked whether he had any explanation for B’s rib fractures, injuries with which he was charged in count 3 with causing. He admitted on one occasion squeezing B with such pressure that he regretted what he had done and felt guilty about it. He had not told R. While L denied that he could have caused these injuries by squeezing B as he had described, it is, in our view, clear that the evidence was of misconduct which “had to do with the alleged facts of the offence with which” L was charged. For that reason the interview was not evidence of bad character for the purposes of section 101 and if admissible at all, it was admissible because (1) it was “relevant to any matter in issue in the proceedings” (section 76A (1) PACE 1984) and (2) it was proved to the court on a balance of probabilities that the confession was not likely to be unreliable in the circumstances by reason of anything said or done (section 76A(2)(b)); (4) The “confession” was plainly relevant to a matter in issue in the proceedings for the reasons explained by the judge. (5) L did not invite the judge to exclude the confession under section 76A and the judge did not, of his own motion, invite submissions directed to it. “98. “Bad Character” References in this Chapter to evidence of a person’s “bad character” are to evidence of, or a disposition towards, misconduct on his part, other than evidence which – (a) has to do with the alleged facts of the offence with which the defendant is charge, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” In interview L was being asked whether he had any explanation for B’s rib fractures, injuries with which he was charged in count 3 with causing. He admitted on one occasion squeezing B with such pressure that he regretted what he had done and felt guilty about it. He had not told R. While L denied that he could have caused these injuries by squeezing B as he had described, it is, in our view, clear that the evidence was of misconduct which “had to do with the alleged facts of the offence with which” L was charged.

(b) );

[38]What are the consequences of these findings? The confession was admitted without a finding by the trial judge whether it satisfied the terms of section 76A, while the judge had earlier regarded the question of admissibility under section 76 as at least arguable. R was required only to satisfy the civil burden of proof and the judge had expressed himself as “less impressed” with the argument under section 76 than he had been with Mr Pascoe’s analysis of section 78 unfairness. The judge had not, however, heard evidence from Dr O’Shea upon the question whether the contents of the disputed interview fell into the category of circumstances in which he would regard the replies made by L as the possible consequence of his suggestibility. No application has been made in the appeal to adduce the oral evidence of Dr O’Shea upon this issue. It is simply asserted by Mr Scott that upon the agreed evidence the judge ought to have found that the prosecution had failed to discharge the burden of proof. Had the judge made such a finding, we are invited to infer, he would also have found that R had failed to establish on a balance of probability that the replies given in the disputed interview were not likely to have been rendered unreliable, in the circumstances existing at the time, by reason of things said or done.

[39]We are quite unable to accept these submissions. However, our rejection of Mr Scott’s principal submissions do not dispose of the appeal. His eventual assertion is that the evidence was admitted without a finding under section 76A one way or the other. In the circumstances as they existed at trial, it was in our view incumbent upon the learned judge to reach a decision under section 76A. The court has considered with some anxiety whether, in those circumstances, the judge would have or should have concluded that the burden upon R had been discharged.

[40]It is accepted by Mr Parker on behalf of the respondent that evidence of the confession should have been admitted, if at all, as evidence of a confession by L pursuant to section 76A of PACE 1984. Notwithstanding this concession Mr Parker submits that the judge achieved balance and fairness in his directions to the jury which renders the verdicts of the jury safe. It is not seriously contended by Mr Parker that the admissions made in the disputed interview were anything less than a significant signpost for the jury in its deliberations. Having considered the learned judge’s summing up with some care we have no doubt that these admissions must have formed one basis for the acceptance by the jury that L had used at least reckless force in his handling of the child. If those admissions were not properly evidence to be considered by the jury then it must follow that L did not receive a fair trial. This court is not in a position to second-guess the judge’s putative decision. The judge did not hear evidence which would have been required for the assessment to be made under section 76A and we are in no better position to make the judgment for ourselves. We can conclude only that by reason of the unfortunate turn of events at trial the verdicts of the jury in the case of L are unsafe. The judge had earlier ruled that the admission of the disputed interview would have been unfairly prejudicial to him. The consequence of the judge’s subsequent ruling was that the unfairness which he anticipated was realised when no proper basis for admitting the evidence had been established. R’s grounds of appeal

[41]Mr Vere Hodge submits that having admitted the disputed evidence, the jury required careful directions as to its relevance in the case of R. In his anxiety to restore fairness as between the prosecution and L, the judge deprived R of the value of the evidence. The effect of the judge’s directions was to diminish the significance of the “squeezing” incident to R’s case.

[42]Secondly, Mr Vere Hodge argued that the judge should have reminded the jury of evidence which suggested that B had been bruised during expert but careful professional handling at hospital on 23 April 2008. This evidence, it was submitted, enhanced R’s explanation that her baby bruised easily. If the jury accepted her evidence in this respect they would have been more likely to have accepted the evidence of both defendants that the bruises were caused either accidentally or in consequence of normal handling. The jury should further, it is submitted, have been reminded of the evidence of an expert to the effect that R’s evidence that B bruised easily could not be excluded.

[43]None of these criticisms would, either individually or cumulatively, have caused us to doubt the safety of R’s conviction upon count 6 in the indictment provided that we could be sure that in the absence of the disputed interview the conviction of L for deliberately or recklessly injuring the child was safe. However, the full court anticipated when giving leave to appeal in R’s case that consideration of the safety of the verdict upon count 6 might well be affected by concerns in the case of L. As we have said, the prosecution set out to prove against R that(1) the injuries suffered by B were non-accidental,

(2) the injuries were caused, deliberately or recklessly, by L, and

(3) R, by neglect, exposed B to injury at the hands of L. The disputed admission went to all three of these issues. Of particular relevance to R’s case was the capacity of the admission to explain the cause of the fractured ribs or the bruising or both (notwithstanding L’s estimate in interview that the squeezing incident occurred in late February). The Court has no means of being sure that if L had successfully resisted the admission of this evidence under section 76A PACE 1984 the jury would have dismissed his primary defence that B’s bruises may have been accidental in origin. We appreciate that R chose to seek the admission of the evidence and, having done so, gave evidence that she believed the injuries had been caused by L when he had lost his temper, but we do not conclude this is an adequate basis on which to allow one appeal in respect of counts 3 and 4 but not the other in respect of count 6. Had the confession not been adduced in evidence there is a prospect, if only a small prospect, that the jury would have returned a verdict of not guilty upon count 6 on the ground that they could not be sure that B’s bruises had been deliberately or recklessly caused. It was only if the jury could be sure that R had exposed B to the risk of harm at the hands of L that they could return a guilty verdict against her upon count 6 (see paragraph 6(3) above). For this reason we regard the verdict in R’s case as unsafe. We may be giving R an undeserved benefit in the light of her own tactical decision at trial but in our view it is a decision which is required in order to do justice in her case.

[44]For these reasons both appeals will be allowed and the convictions of both appellants quashed. The respondent will have 14 days within which to make a written application to the court for a re-trial in either or both cases. The court has no provisional view to communicate to the parties. Should such an application be made the respondent must given notice of its application to the appellant or appellants concerned and the court will consider the written submissions of each relevant party. Should an oral hearing be required by any party, that application should be made explicit in writing.