Turner, R. v [2012] EWCA Crim 1786

[2012] EWCA Crim 1786

Case No 2012/00428/C1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 18 July 2012

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE MACKAY

and

MR JUSTICE SWEENEY

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- v -

Between

SIMON PAUL TURNER

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Miss M Heeley appeared for Applicant

Mr H Searle appeared for Crown

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Judgment

THE LORD CHIEF JUSTICE:

[1]On 22 December 2011 in the Crown Court at Stafford before His Honour Judge Maxwell and a jury the appellant was convicted of two counts of indecency with a child (counts 1 and 3), two counts of indecent assault (counts 2 and 4), and six counts of sexual activity with a child. The child in counts 1 to 7 was "LH". The prosecution's case was that she was a victim of sexual abuse by the appellant between June 2002 and June 2005 when she was aged 13 to 15. Counts 8 to 12 involved "TE", aged 15. Sexual activity took place with her between December 2004 and June 2005.

[2]The defence was somewhat unusual. There was no dispute about the fact that sexual activity had taken place between the appellant and each of the two girls. His case was that it was consensual in fact and consensual in law -- in other words, neither girl was under age on the occasions when sexual activity took place.

[3]There was very little dispute about the nature of the sexual activity, although in relation to the incident covered by count 7 there was some question as to where sexual intercourse had taken place or whether what had happened had not involved penetration (and therefore was not sexual intercourse).

[4]Following conviction the appellant was sentenced to two years' imprisonment on counts 1 to 6 and to six years' imprisonment on counts 7 to 10, the sentences to run concurrently. The appellant was required to comply indefinitely with the provisions of Part 2 of the Sexual Offences Act 2003 (notification to the police), and he will be included in the relevant list arising under the regulations which safeguard vulnerable groups.

[5]The appellant appeals against conviction by leave of the single judge.

[6]There are four grounds of appeal. One relates to the evidence and three relate to the way in which the judge dealt with three matters in the summing-up.

[7]The offences need no detailed recitation. Count 1 alleged that the appellant incited LH to masturbate him when she was 13; count 2 that he had kissed her, fondled her breasts, and inserted his fingers into her vagina; counts 3 to 6 alleged the same sort of activity; and count 7 that sexual intercourse had taken place when she was 15. The appellant's case was that sexual activity had occurred after LH was 16, but that he had not penetrated her; his penis had touched the outside of her vagina, but there was an interruption from someone coming upstairs and so that was the end of that.

[8]Counts 8 to 10 alleged that the appellant had penetrative vaginal intercourse with TE. There was no dispute that it had taken place. The issue again was the age of TE when it took place.

[9]The problem relating to the evidence concerns LH alone. She was born in June 1989. She was 22 years old at the time of the trial. There was no dispute that the appellant knew her age. When the relationship had come to an end LH told somebody about it. After receiving some counselling from a church pastor, to whom she was unable to articulate what had happened, she wrote it all down in a notebook. Her mother found the notebook and wanted to know what it was about. LH told her mother that it related to a friend, not to herself. Eventually, she confided in a friend who persuaded her to go to the police. She saw a male police officer and "felt horrible". A female officer saw her in July 2010. She wanted to conduct a video-interview but LH was unhappy about this and exhibited disturbed behaviour. She was referred to her general practitioner. In August 2010 she took an overdose and had to be admitted to hospital.

[10]Eventually, in December 2010 and February 2011 LH telephoned a radio station. She had heard people talking about sexual abuse and she phoned in anonymously. On 24 October 2010 she signed a formal witness statement following a series of interviews in which she described the sexual activity which had taken place and her age at the relevant dates.

[11]Her mother, a community officer, gave evidence that after LH had taken the overdose they tried to pick up the pieces together. She had gone to an organisation known as [a name] Tours where she had heard something about the appellant and another young female. She reported her recollection to the police woman who had finally achieved the interview with her daughter. That led the police officer to the second girl, TE.

[12]TE's evidence was that she had stopped going to school when she was 15, but had returned after her 16th birthday to take some GCSE examinations. The appellant worked at the same place as she did. They talked and then got together and had sexual intercourse. The first time was on a bus in the December after her 15th birthday. It occurred again on two further occasions before she reached the age of 16, and continued after she had reached 16. The relationship went on until the appellant left his job.

[13]When the appellant was interviewed by the police he declined to answer any questions. His evidence to the jury was that, following legal advice, he did not mention that the complainants were over 16. A ground of appeal arises from that fact.

[14]The appellant gave evidence in his defence. We have summarised the essence of the case which he advanced before the jury. It needs no further recital.

[15]The first ground of appeal relates to the evidence of LH. She told the judge and the jury that she remembered the evidence that she wanted to give but she was unable to articulate it. The judge recognised that she was highly embarrassed by the situation and had great difficulty in saying in open court what had happened between her and the appellant. In the absence of the jury he discussed the position with counsel because the case was "not making any progress". He pointed out to counsel for the appellant that if the matter had been dealt with by way of a video-interview there would have been no problem. It was not a video-interview; the hearsay rules applied along with the exceptions which enabled hearsay evidence to be given. Miss Heeley pointed out that this was not hearsay evidence; the witness was giving evidence and was being asked about events that were within her own knowledge. The judge enquired as to whether it was a memory-refreshing or a hearsay point. It was suggested to him that it was neither.

[16]In the course of the exchange it was made clear, as the defence case statement indicated that the fact that there was sexual activity was not in dispute. The judge was satisfied that the witness knew and could remember the details of what she wanted to say, but she was unable to verbalise them because of her great difficulty and embarrassment. She had asked that her statement be made available. The statement was available. Indeed, at one stage part had been read out to her and she had adopted it. In his ruling the judge said it was "perfectly obvious" that unless some new step was taken the case would go on "all afternoon and probably all of tomorrow and she will not say what is in her statement". He reminded himself that there was no dispute as to the essential facts relating to sexual activity. The issue was age. Was LH over 16 and in a position lawfully to consent, or was she under 16 and not in a position to consent? The judge considered section 114 of the Criminal Justice Act 2003, which permits the use of hearsay evidence, and examined the preconditions to the admission of the statement. The preconditions are set out in section 114(2). It is unnecessary to recite them here. He concluded that section 114 did apply and that he could admit the statement as hearsay evidence.

[17]The first ground of appeal is that this course was inappropriate. It is submitted that such examination of a witness, who was giving crucial evidence on which counts 1 to 7 depended, was inappropriate and should not have been permitted.

[18]As the judge explained in his ruling, this statement would not be used by the witness for the purposes of refreshing her memory. Her memory did not need to be refreshed; her inability to speak needed to be overcome. The statement was read to her and she was invited to adopt its contents if she thought they were correct. She did so. The judge considered that the course permitted by the operation of section 114 of the 2003 Act would have been appropriate, but that he could protect the appellant from some of the adverse effects of allowing the statement to be adduced under section 114, first, by ensuring that the process of reading parts of it out and inviting the witness to adopt them should apply only to matters which were not in dispute; second, that the process should not be adopted in relation to the crucial issues in the trial, that is the age when the sexual activity between the two took place, or indeed in relation to count 7, the issue of whether or not full sexual intercourse had taken place; and third, by dealing with it in this way, the witness would give her testimony orally and would then be available for the purposes of cross-examination.

[19]The question, therefore, is whether, by laying down the restrictive conditions on the way in which the complainant's statement could be used, the judge, although adding to the protection normally available to a defendant, should nevertheless have disqualified the prosecution from using it for the purposes of establishing facts which were not in dispute. The question seems to us to permit of only one answer. In our judgment the judge's decision, and the way in which he arranged for this part of the evidence to be adduced before the jury, legitimately enabled the best evidence of the witness to be given, while at the same time protecting the interests of the appellant. He could have permitted leading questions to be put to the witness in any event on matters which were undisputed. It was by far better that the statement should be used for this purpose and the witness invited to adopt it or to reject it. The judge could have permitted the statement to be admitted under section 114 of the 2003 Act. That would have enabled the prosecution to rely on the statement in its entirety. The procedure that he adopted protected the appellant better than either of the two alternative courses. It was a sensible adaptation of the processes of the court which caused not the slightest prejudice to the appellant or the conduct of the defence. Indeed, it reduced the risk of any unfair prejudice to him. Accordingly, that ground of appeal fails.

[20]We turn to the areas of criticism of the summing-up. Three features have been drawn to our attention: the way in which the judge dealt with the issue of possible cross-contamination between the two complainants; his failure to sum up discrepancies relating to dates and events as between the evidence of the two complainants; and his direction to the jury about the possibility of drawing adverse inferences from the fact that the appellant's interview with the police was a "no comment" interview.

[21]As to the contamination, there is no evidence of any direct communication between either of the complainants. Nor, as Miss Heeley candidly acknowledged, was any suggestion of cross-contamination put to either. The judge directed the jury that they might use the evidence adversely to the appellant if they looked at the similarities between the two cases, the character of the two girls who both "enjoyed his attention" and the fact that they both thought that they were having a love affair with him. That was a coincidence. The judge said:

"Can it be a coincidence that you have got two apparently independent allegations of similarity being levelled? Of course, members of the jury, this will only arise if the two sets of allegations are truly independent of each other. If there is any possibility of there being any sort of discussion between the two and they have put their heads together, there has been contamination between the two allegations, then it could not possibly be relevant ...."

In other words, if there is any possibility of contamination or cross-talk, or one of the complainants putting ideas into the head of the other, then the jury were to ignore any conclusions that they might draw between the apparent similarities between the two cases. The judge said that there was no evidence to suggest contamination between one set of allegations and the other. Complaint is made that that direction went too far.

[22]We have examined the matters relied upon by Miss Heeley in support of that suggestion. There was indeed no evidence to suggest contamination as between the two allegations. What the judge said in his summing-up about it was entirely accurate.

[23]It is next asserted that the judge failed to remind the jury of the discrepancies in relation to time. The crucial point in the case was the age of the two complainants when the different forms of sexual activity on which the charges are based took place. There was a good deal of evidence about that. It was examined in some detail. In his summing-up the judge repeatedly reminded the jury of the essential issue: the account given by the appellant that each girl was over age; and the account give by each girl that she was not over age. He reminded the jury of the fact that there were text messages and pictures on the phone and that "we ended up in a pretty fair muddle" as to when a number of things related to when these matters actually happened. He could not see how any of that evidence could help the determination whether the sexual activity happened when the complainant was 15 or 16. The criticism is that there should have been a more detailed analysis of the evidence (dates and times) relating to events such as birthdays, the taking of exams and so on.

[24]This was a matter for the judge. The summing-up had clearly identified the issues which arose for decision by the jury. The account given by the appellant was narrated in careful detail. There was, in our judgment, no further need for the judge to deal with each and every timing or date. That ground of criticism fails.

[25]The final matter concerns the direction as to adverse inferences. In his summing-up, having dealt with the contamination issue, the judge turned to the legal significance of the "no comment" interview. The agreed facts before the jury showed the words of the caution:

"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." 26. "

All the solicitor can do is to give him advice, and let us not leave common sense behind. Any solicitor is going to advise him, 'If you have got a defence, it will be a risky business not to present it now'." 27. "The law is this, that you will only draw a conclusion from the 'no comment' interviews that is adverse to the [appellant] if he could reasonably have been expected to mention the facts of his defence at the time when he was being questioned. He had the advice of his solicitor. Members of the jury, common sense will tell us that if the solicitor was competent he would have advised of the risk of going 'no comment'. The risks are obvious. That is built into the words of the caution. Members of the jury, if the solicitor nevertheless advised that he should go 'no comment' and he [the appellant] acts on that advice, then you cannot say he would reasonably have been expected to mention something, but the [appellant], although he said to you, 'I did what my solicitor told me to do', did agree that it was his decision and not the solicitor's decision. He actually said that in his evidence to you. Members of the jury, if it is genuine that he was acting on legal advice or it may be genuine, then you would not be drawing any adverse conclusion against him, but if you come to the conclusion that he has latched on to the solicitor's advice as a convenient shield to avoid answering questions, then the solicitor's advice would not constitute a reasonable ground for not answering questions." The judge then proceeded to give some further directions to supplement and complete what he had to say on that issue.

[26]The complaint is that the jury would have been left with a false impression and there might have been a danger that too much weight might have been placed on what the judge said the sensible solicitor might have advised.

[27]Although we do not think that the fairness of the trial was in any way impugned by this observation, it would have been better had the judge avoided any comment on what the solicitor might have advised, or might have been expected to advise the appellant. Even if it was not entirely speculative, comments like these might have served to undermine the inviolable principle of lawyer-client confidentiality. For a moment let us speculate on the possibility that the solicitor might not have been sensible and might not have given the advice which the judge thought any sensible solicitor would have given. The appellant may have felt obliged to call the solicitor to give evidence, and forced to waive confidentiality because of something said by the judge. There could then have been all sorts of complications. It would have been better had that observation not been made. However, we have reflected on the fact that it was made and the circumstances in which it was made. The appellant accepted in clear terms in his evidence that the decision which was made was his decision and not that of his solicitor. In those circumstances this ground of appeal, too, fails.

[28]Accordingly, for the reasons given, this appeal must be dismissed. _____________________________