GJB v R. [2011] EWCA Crim 867

Case Nos: 201000660 B2 & 201004936 B2[2011] EWCA Crim 867
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHESTER
His Honour Judge Woodward
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/04/2011
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE HENRIQUESMR JUSTICE FOSKETT
Between
GJBAppellantThe QueenRespondent(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)Mark Barlow (instructed by Howells) for AppellantKarl H Scholz (instructed by South Cheshire CPS) for RespondentHearing Hearing date: 18 March 2011
Judgment

Introduction

[1]On 31 October 2007 in the Crown Court at Chester before His Honour Judge Woodward, the applicant was convicted on count one of the indictment, charging buggery contrary to section 12 (1) Sexual Offences Act 1956, and on four counts charging indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. On the same date he was sentenced to a total of 8 years’ imprisonment.[2]His application for an extension of time and for leave to appeal against his conviction was referred to the Full Court by the single judge. We granted the required extension of time and leave to appeal. Having heard the submissions of counsel, we announced our decision to allow the appeal and to quash his convictions on all counts. We said we would give the reasons for our decision in writing, and we now do so. We do not propose to address every ground of appeal argued by the appellant. We shall address those that led to our decision.

The facts in outline

[3]The case concerned allegations of sexual abuse between 1989 and 1991 by the appellant upon his two younger nephews, MT, born on [DOB] 1984 and RT, born on [DOB] 1980, who were the sons of the appellant’s sister ET.[4]When the allegations were reported to the police MT stated the buggery had occurred at a joint birthday party for him and the applicant, held at his grand parents’ home on 17 February 1990. At that time the complainant MT would have been six years old and the applicant 18. It subsequently seemed that the appellant had travelled abroad for his 18th birthday, and the indictment was revised before the trial to indicate that count 1 related to events that occurred on 17th February 1989 when the complainant MT was aged 5 years and the applicant was 17.[5]RT gave details of his allegation to the police, stating that the applicant lived with them for some time between 1989 and 1990, during which he was encouraged to masturbate his uncle when he was aged between 9 and 10 years.[6]The applicant was arrested on 1May 2007. In interview he denied the allegations.[7]The prosecution case was that the two complainants had given truthful accounts and that the jury could be satisfied that the applicant had buggered MT on 17February 1989 and had caused RT to masturbate his penis on a number of occasions between 1989 and 1991. The defence case was that the allegations against him were lies, motivated by the ill-feeling in the family resulting from his daughter’s decision, who had lived with ET and MT, to go to live with the appellant. The hostility led to MT damaging the appellant’s car and the appellant calling the police. MT’s complaint to the police that he had been abused as a child by the appellant ensued.[8]At the trial, MT, RT and ET gave evidence, as did the appellant, who was a man of good character.

The grounds of appeal

[9]The appellant makes a number of complaints about the summing up. We shall refer to and address his principal contentions below. (1). The “scarring” of MT’s memory[10]MT had a good recollection of the appellant’s bedroom in which the offence of buggery was alleged to have occurred when he was only 5 years old. The prosecution suggested that this was because he had been abused in that room. In the course of his summing up,

the judge said this:

“… the prosecution say the detail is important because some things he can’t remember, some things he can remember in very great detail, things that would otherwise would through life just fade into insignificance and the prosecution say that’s significant because something must have happened in that bedroom to scar his memory, that’s the effect of it.”
[11]The implication was that MT remembered the room because he had been abused in it. It would have been unobjectionable to say that the jury could take into account the accuracy of his recollection of the room when considering whether his recollection of the alleged offence was accurate. It was a different thing to suggest that his recollection of the room was accurate because he had been abused in it. There was simply nothing to support this assertion. The jury had no expert evidence before it to support the suggestion that an incident as distressing as a rape or buggery would enhance a child’s memory of his surroundings when it happened. (Sigmund Freud suggested that the mind tends to suppress the memory of distressing incidents, but we leave that aside.) It was not and is not suggested that there is generally accepted psychological evidence that such incidents enhance the memory. While the jury might bring their own experience of life to bear on the question whether a child of 5 can accurately remember many years later what occurred to him, it would not be within their experience that an incident such as buggery or rape enhances the memory. The Law Commission has recently put forward proposals for the Courts to address the admissibility of doubtful expert evidence. The objection to the prosecution assertion in this case is greater: the assertion was wholly unsupported. It was amateur psychology, an unsupported suggestion. It should not have been made by the prosecution, and should not have been given credence in the summing up. To the contrary, the judge might well have warned the jury against acting on it.[12]This error was exacerbated when the judge returned to the point immediately before the jury retired. He said:
“Now you my think it’s not surprising that []the appellant] can remember his own bedroom. He did so, but he doesn’t have any particular reason to which he can explain why [MT] may have such a clear recollection.”
The italics are of course ours. This comment, at a crucial point in the summing up, effectively reversed the onus of proof. For this reason too, it should not have been made. (2). The Lucas Direction

The judge gave the following direction to the jury:

“Another separate point is that the prosecution have suggested that the defendant may have deliberately lied to the police in interview about the issue of whether or not he stayed at the home of his Aunt …, but be careful with any suggestion that a person deliberately lied. You’ve got to consider two things. First of all is it actually a lie, a lie is a deliberate choice to mislead to a greater or lesser degree or could it have been confusion, could it have been a mistake, could it have been he was over-awed by the whole situation and he just came out with that. Now if you’re not sure that it’s a lie then the point is gone and you just ignore it but if you are sure that it’s a lie and a deliberate lie, you’ve then got to go and ask why the lie was given because people can lie for many different reasons. They can lie because they’re frightened, they can lie to try to protect themselves because for example they may think that they don’t have much of a defence to put and particularly a person who may be faced with a case where they’ve got the problems of delay may well seem to fall back in lies simply to try to create a defence because they themselves know that they’re innocent and therefore they don’t feel they’ve done anything particularly wrong and are just trying to protect themselves. So don’t jump to the conclusion the fact that somebody has lied means that they’re guilty. If a person lies and you’re satisfied it’s a deliberate lie, it may help you but its only if you say to yourselves well we’re satisfied so that we’re sure here that there was no innocent explanation for the lie in the sense I’ve explained and we’re sure that the only real explanation is that it was to cover his tracks that it could assist you in the case.”
[14]Mr Barlow submitted that this direction should not have been given. It had not been established or accepted by the appellant that what he had said about staying in the home of his aunt was incorrect.[15]In our judgment, the judge’s direction was defective. Read as a whole, it assumed that what the appellant had said was incorrect. The direction focused on the issue whether the appellant had deliberately lied, whereas there was a prior question for the jury to consider. The jury should have been clearly directed that they had to consider first whether they were satisfied that what the appellant had said was incorrect. Only if they were so satisfied could they proceed to consider whether the appellant had deliberately lied. (3). The missing year[16]The Lucas direction was linked to this point. There was an issue in the trial as to whether and for how long the appellant had lived with his sister ET. He was cross-examined on this. It is not clear now quite why it came about, but it was put to him that he had failed to account for where he had lived for a year from the death of his father in August 1990 and his moving in with his mother when she bought a house in Belmont Avenue. In cross-examination, it was put to him that that had been in October 1991: hence the missing year, from August 1990 to October 1991. Unfortunately, Mr Scholz could not now identify the basis on which he had put that date to him. We now know, from the Land Registry Form 19, that the appellant’s mother acquired that house in January 1991, so that there was no basis for the prosecution question.[17]In the summing up, it was stated as a fact that the appellant had failed to account for the missing year.

The judge put it this way:

“From his father's death, which is a date that is known, to the date that his mother moved into Belmont Avenue, that month we've always known and there's somewhere that he must've been living beside those addresses because there's effectively a missing year. That was pointed out to him although he wasn't able to help about what he said happened, he just couldn't answer that one.”
The assumption that there was a missing year for which the appellant could not account must have been seen by the jury as damaging his credibility. Whether the defence could and should have anticipated the need to produce objective evidence of the date of the appellant’s mother’s move into the house in Belmont Avenue is now difficult to identify, as is the basis for the prosecution question. In our judgment, the interests of justice require us to take that evidence into account. It follows that the appellant’s credibility was wrongly damaged. (4). The good character direction[18]The good character of the defendant is relevant in relation to credibility and to propensity, and he is entitled to the full direction on both. However, in an historic sex abuse case such as the present, there are two aspects of propensity to be considered. The first is that applicable even where the allegation is of a recent offence: a person of good character is less likely to have committed the alleged offence. The second results from the passage of time since the alleged offence: the fact that the defendant has not committed any offence, let alone one involving sexual abuse, since the date of the alleged offence goes to the likelihood or otherwise of his having committed the offence or offences. Such a direction is particularly apt where delay since the date of the alleged offences renders it more difficult for the defendant to defend himself, as is so often the case.[19]Mr Barlow (who did not appear at the trial) submitted that the judge should have given what he referred to as the third limb of the good character direction, to the effect that the jury may think that the fact that so long has passed since these alleged offences (in the present case, some 18 years) without the defendant committing any offence renders it less likely that he did commit the offences of which he was accused. As we have indicated, in reality this third limb is no more than an adaptation of the normal propensity direction, that is to say one that is adapted to the facts of the case. In historic sexual abuse cases, where the defence is a straightforward denial, the defendant may have little more than his good character to rely on. The prejudice that may be caused by the delay between the alleged offence and the charge or the trial renders the so-called third limb particularly relevant.[20]For the respondent, Mr Scholz submitted that the judge’s direction was sufficient. The jury were well aware of the appellant’s good character and would have given it the weight they considered was appropriate.[21]In Small [2008] EWCA Crim 2788, Sir Christopher Holland, giving the judgment of the Court, said: 30. Good character. The Appellant was plainly entitled to the classic two limb good character direction. In the event it was as from 13G:
"But, it is something that you must take into account in his favour and you do that in two ways. First of all, when somebody gives evidence like this defendant has done, and called evidence as with anyone of good character, it can support his credibility. That means it is something that perhaps you can take into account when deciding whether you believe his evidence. Secondly, because he is now 63 and has no convictions on his record or no cautions, it may be – and you are entitled to take this view – that he is less likely to start committing this sort of offence now, although of course, you have to bear in mind that although 63 now, the time that the young ladies were talking about was (inaudible) years ago. Nevertheless, that is something you are entitled to consider here."
As to the first limb, the words "something that perhaps you can take into account" are unacceptably diffident by reference to the JSB Direction, viz "it is a factor which you should take into account." As to the second limb, we comment as follows. The opening words reflected a reading from the JSB Direction viz., "In the second place the fact that he is of good character may mean that he is less likely to commit this crime now." Given the Appellant's age and history, this was self-evident – and for the jury's purpose effectively irrelevant. It is unfortunate that the judge did not pick up the addendum to this Specimen Direction viz., "In cases where it is necessary to give the Delay direction, see direction 37, para 4." Reference to the latter serves to supply a precedent particularly germane to the instant case as serving to identify the relevance of good character for second limb purpose. "Having regard to what you know about this defendant and in particular the […] years since the date of the alleged offence and that no similar allegation has been made against him you may think he is entitled to ask you to give considerable/more than usual weight to his good character when deciding whether the Prosecution has satisfied you of his guilt." Obviously a mere failure to adopt a Specimen Direction cannot in itself found an appeal, but the inadequacy of this truncated second limb direction does serve, in our judgment, to contribute to our finding that the delay directions were seriously flawed. "But, it is something that you must take into account in his favour and you do that in two ways. First of all, when somebody gives evidence like this defendant has done, and called evidence as with anyone of good character, it can support his credibility. That means it is something that perhaps you can take into account when deciding whether you believe his evidence. Secondly, because he is now 63 and has no convictions on his record or no cautions, it may be – and you are entitled to take this view – that he is less likely to start committing this sort of offence now, although of course, you have to bear in mind that although 63 now, the time that the young ladies were talking about was (inaudible) years ago. Nevertheless, that is something you are entitled to consider here." "Having regard to what you know about this defendant and in particular the […] years since the date of the alleged offence and that no similar allegation has been made against him you may think he is entitled to ask you to give considerable/more than usual weight to his good character when deciding whether the Prosecution has satisfied you of his guilt."[22]The current Bench Book Directing the Jury (published after the trial of the appellant) addresses this matter under the heading of Delay. It states “A defendant of good character will be able to assert that the absence of any further and similar allegation is significant.” The illustrated direction includes the following:
“There is one effect of delay which you may regard as supportive of the defendant’s case. The defendant is now in middle age. At the time of these events, and since, the defendant has had access to several other children within the family environment. Yet, it is not suggested that he has behaved improperly with them on any other occasion.”
[23]The direction given by

the judge in this case was the following:

“The final point that I want to deal with before you go off to your lunch is the defendant's character. Now he's told you that he's a person of good character, that he's never been in trouble with the police and that's not challenged by the prosecution at all. Now of course good character cannot be a defence to a charge because we all start life with good character but it is something that you should take into a person's account, a defendant's account in his favour in two ways. First of all, it supports his credibility, that's to say his evidence, it makes it more likely doesn't it that he's telling you the truth? A person of good character is more likely to tell you the truth about something than not to tell you the truth, and the other way that it helps you is that it may mean that he's less likely to have committed the offence because again you may say a person who has got to a certain age and life without previous convictions may be less likely a person to have done what they’re alleged to have done. Now I said that these are things that you should take into account in the defendant's favour and I'm not resiling from that but what week you give them is free you to decide. You decide in the context of this case how much weight you give to the defendant's good character, a matter entirely for you.”
[24]We think that this direction was not sufficiently tailored to the facts of this case, and that the so-called third limb of the direction should clearly have been given. (5). The delay before MT’s complaint

The judge addressed this issue at page 12 of the transcript:

“[MT] said ‘I didn’t tell anyone about what had happened although I was aware something wrong had occurred but I didn’t understand”
. Now he would have been five then so it may have been just a few days after his birthday, it was the day of his birthday party and you’ve got to try, a very difficult to do, a very difficult thing, you’ve got to try and put yourself in the mind of a 5 year old who has just experienced that from his uncle and ask yourself well, is it right that a child would actually inevitably say to somebody what had happened or may some children speak, some children not and what are the consequences of not speaking? When you don’t speak about something that’s profoundly affect you, how is that going to affect you as you go through life? Does it make it more likely or less likely that you’re going to speak? Is there a time when may be there can be a trigger for speaking out and it seems that according to [MT] the very first time he spoke about it was, it’s in those formal admissions, I think it was 2006, to his partner. So that was the first and only person he’d confided in about it until he spoke to his mother and we’ll come to that in a bit.”[26]We entirely accept that in a suitable case, and this was one, the judge is entitled to and should comment on the reluctance or difficulty of the victim of sexual abuse to speak about it for long afterwards. In this connection, we refer to the judgments of this Court in D (JA) [2008] EWCA Crim 2557 and in Miller [2010] EWCA Crim 1578. However, it is important that the comment should not assume the guilt of the defendant, and that his case should be made clear. The direction in Miller was a model in this respect. The summing up in that case included the following passage:
“You are entitled to consider why these matters did not come to light sooner. The defence say that it is because they are not true. They say that the allegations are entirely fabricated, untrue and they say that had the allegations been true you would have expected a complaint to be made earlier and certainly once either defendant … was out of the way ... of the complainant. The defence say that she could have complained to her mother or her grandmother before she left the country or to her mother on the plane, or to the headmaster of the school … or to the social worker who came on one occasion to speak to her (although again bear in mind there is no evidence that the complainant was ever given any contact details or instructions as to how to make such a complaint, or that she could have complained sooner to a family or extended family member once she was safe in Jamaica. On the other hand the prosecution say that it is not as simple as that. When children are abused they are often confused about what is happening to them and why it is happening. They are children and if a family member is abusing them in his own home or their own home, to whom can they complain? A sexual assault, if it occurs, will usually occur secretly. A child may have some idea that what is going on is wrong but very often children feel that they are to blame in some way, notwithstanding circumstances which an outsider would not consider for one moment them to be at blame or at fault. A child can be inhibited for a variety of reasons from speaking out. They may be fearful that they may not be believed, a child's word against a mature adult, or they may be scared of the consequences or fearful of the effect upon relationships which they have come to know, or their only relationship.”
The judge then enlarged on the reasons why the complaint may not have been made for some time. For present purposes, what is to be noted in that direction is that the defence’s case was clearly put. That did not happen in the present case. It should have done. At the very least, the direction should have been preceded by making the comment conditional on the abuse having happened. Instead, it assumed that the buggery had indeed happened. (6). The “can of worms”[27]During the cross-examination of RT, counsel then representing the appellant made the elementary error of asking one question too many. In effect, he asked whether MT’s behaviour was normal, with the expectation of receiving a positive response, which would have led him to submit to the jury that if MT had been buggered, he would have been shy and retiring. The judge referred to the unfortunate answer that was elicited as “the can of worms”. He said:
“He said he wasn’t providing her enough priority or financial assistance and then the can of worms was opened and I’ll read to you my note about what [RT] said about his brother’s behaviour and again, you’ve got to think to yourself now if this is a pack of lies was it a prepared version? If it wasn’t a prepared version, if he didn’t have to foresight to think that he might have been asked about that, what was the impression that he was making on you about this and does this, if you believe it’s a genuine account of his brother’s behaviour, does this tie in with a person who may have suffered as [MT] says he had. He said, “From the age of 6 he became very closed and he wouldn’t show affection very easily. He would just shut off and he wouldn’t let anyone inside. When he was younger he was very different, he was very lively and open” and he remembers in particular his seventh birthday party and he came then. He saw other people where there and that was it, he was gone. Never wanted a fuss made of him on his birthday. [MT] just separated himself from others. He’s not trusting in other people, he has to grow trust in people”
. He said “I never saw the defendant act inappropriately towards [MT]”, it was never suggested that he had any inkling that anything had happened before and he said about his own experience that he was going to keep it private. His words were: I would have carried what had happened to me forever if [MT] hadn’t told me what happened to him”, he said. That was his account, you will want to make an assessment.”[28]However, viewed objectively, as it should have been, the evidence of the change in MT’s behaviour was of little if any evidential value. At the relevant time, MT was only 5, and RT was only 9. It is difficult to see that the jury could sensibly place reliance on the recollection of a man aged 27 of his perception at the age of 9 of a change in the character of his brother aged 5. It is to be noted that the evidence was not that MT had suddenly become withdrawn or upset at on the day the offence was alleged to have been committed. Such evidence would have been most relevant. This was evidence of a change in the character of MT.[29]Whether a single incident such as that alleged in this case would be likely to effect a change in the character of the victim is uncertain: the jury could have had no experience of this. Furthermore, as recorded in the transcript of the summing up, the behaviour of MT changed not on his fifth birthday, when the offence was alleged to have taken place, but from his sixth birthday.[30]However, by referring to this evidence as “the can of worms”, the judge implied that it was damaging to the appellant’s case. The rhetorical question “Does this tie in with a person who may have suffered as [MT] says he had?” invited the jury to infer that there had been a change in MT’s behaviour caused by the incident. In our judgment, far from summing up this evidence as he did, the jury should have cautioned the jury against taking it into account. (7). The earlier complaints[31]The prosecution case was considerably fortified by the admitted earlier complaints made by MT and RT. There were two relevant formal admissions:
“2. In May 2006 [MT] disclosed to his fiancée … that he had been buggered by his uncle. He told her that this had happened when he was 6. 3. In the summer of 2006 [RT] disclosed to his wife … that he had been abused. He did not then to into any detail.”
[32]The judge did to refer to these admissions in his summing up. Mr Barlow suggested that these admissions should not have been agreed by trial counsel for the appellant. In addition, he submitted that a direction was required to the effect that these admissions could not be viewed by the jury as corroborating the allegations made by MT and RT.[33]We reject this suggestion that these admissions had been wrongly made. There was good reason for trial counsel to believe that requiring the prosecution to call MT’s fiancée and RT’s wife would have been more damaging. We also reject the submission that the judge should have directed the jury to the effect that these complaints were not corroboration. A direction that they were not independent evidence of the offences would have been appropriate, but indubitably any earlier statement that the appellant had committed the offences with which he as charged was inconsistent with and damaging to the defence case, as the judge would have been entitled to comment.

Conclusion

[34]The matters to which we have referred, if viewed in isolation, might well not have led to this appeal being allowed. However, we had to consider the cumulative effect of these matters. The trial of historic sexual abuse cases such as this present real difficulties for the prosecutor, for the defence and for the judge. The summing up must be carefully prepared, and it must not give the impression that the defendant’s guilt is assumed. As discussed above, we do not think that this summing up was fair to the appellant. For these reasons, we concluded that his conviction was unsafe.

Cited in 1 later judgment