R v Peter Bruce Lee [2012] EWCA Crim 316

[2012] EWCA Crim 316Case No 2011/3806/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 16 February 2012
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE FIELD
MR JUSTICE BEATSON
v
Between
PETER BRUCE LEEComputer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)Mr L Walker appeared for AppellantMiss T Salako appeared for CrownJ U D G M E N T(As Approved by the Court)Crown copyright©
[1]THE VICE PRESIDENT: This defendant was convicted of a single count of indecent assault on a child. He had been tried on a total of seven counts relating to two children. The grounds of appeal are directed to bad character evidence which was admitted in support of the Crown case and derived from one of those two girls. The two girls were his stepdaughter, who we will refer to as A, and a young friend of the stepdaughter, whom we shall call B.[2]The charges in respect of A (the stepdaughter) were not, as they sometimes are, of a continuous unbroken course of conduct. First, there were three incidents in 1992 or 1993. Her evidence was that those were reported to the school and indeed via them to social services and to the police, but that she subsequently withdrew her allegations. Then, secondly, there were two more indecent incidents alleged in 1995 and 1996. After those A's evidence was that she had complained to her mother and that initially her mother had asked the defendant to leave. He had done so but, said A, she had seen the impact of his departure on mother and had relented, as it were, and asked her to let him return by which time A was about 14.[3]In relation to those five incidents in due course the jury were unable to agree. It was discharged. Subsequently the Crown offered no evidence and verdicts of not guilty were entered in respect of each of those counts. It is plain, without going into any detail, that there had been some unsatisfactory features about A's evidence.[4]So far as B was concerned, there were said to be two specific incidents and two only. They were both said to have taken place some time between 1987 and 1990, thus rather before the incidents involving A. On the first occasion it was alleged that the defendant had touched B briefly on the inner thigh when dropping her off from his car. On the second occasion B asserted that when she and several other children had been playing a chasing game in which the defendant had been a participant, he had picked her up and in doing so had touched her bottom and, as she suggested at court, moved his hand to the area between her legs over her clothes.[5]The defendant's case in respect of the stepdaughter A was that none of the incidents had ever occurred and nothing of any sexual or indecent nature had ever taken place. His case in respect of the friend B was that twenty or more years on he could not say whether the incidents recounted had occurred or not, but if they had then any touching must have been accidental and not in any sense sexual - it had been accidental or in the ordinary course of play or social contact.[6]The jury convicted of the second of the two incidents in relation to B. It was unable to agree about the first and the same outcome occurred - the Crown in due course offered no evidence and the defendant stood acquitted of the first incident.[7]The evidence which is in issue in this appeal came from the stepdaughter A. She said that after the course of events which we have already recounted, two further things had happened. When she was about 16 she said that she had found that the defendant had set up a camcorder in the bathroom to watch her when she was in the bath. She said that on discovering that her mother asked the defendant to leave the house for a second time and that he did leave and remained away until A herself moved out some time later. Secondly, A said that some several years after she had left home and set up her own establishment elsewhere, she returned from time to time to babysit for her younger brother. When she was about 21 or so, and thus something like five years after what she said was the bathroom incident, she said that she, when in the house, had looked at the family computer and had seen indecent photographs of pubescent children on it. The suggestion of the Crown was that the defendant had been responsible for putting them there. She again complained to her mother and there was again it seems a brief rupture of the relationship between mother and the defendant.[8]Neither of those last two matters formed the subject of any count. The first, if it was true, would nowadays be voyeurism and at the time would have been the attempted making of an indecent image, but it was not charged. The second would have been the offence of making indecent images if it was made out, but no doubt the view that was taken was in the absence of seizure and examination of the computer there was insufficient prospect of success, and that was no doubt right.[9]The fact that neither of these incidents figured as an allegation of a criminal offence did not inhibit the Crown from seeking to adduce the evidence at the defendant's trial. For the Crown, Miss Salako's first stance was that the evidence in question was not properly to be considered bad character evidence at all. That was because it was evidence to do with the facts alleged in the indictment, thus as section 98(a) of the Criminal Justice Act 2003 says, is not bad character evidence at all. The judge ruled against the Crown on that question.[10]The Crown's alternative stance was to apply to the judge to admit the two pieces of evidence that we have mentioned as bad character evidence through gateway (c), that is to say as important explanatory evidence. The judge accepted that application and admitted it as such.[11]We acknowledge the care which the learned judge gave to the ruling, but we are quite satisfied that this evidence cannot properly be described as important explanatory evidence and was not admissible through gateway (c). Gateway (c) has to be read with section 102. Evidence is important explanatory evidence if "without it the court or jury would find it impossible or difficult properly to understand other evidence in the case and its value for understanding the case as a whole is substantial". It is the first of those conditions which is the important one in this case, as in many others.[12]The Crown's stance, endorsed by the judge, was that this evidence explained how events progressed and was the trigger behind A's decision to leave her family home at the age of 16. The judge further concluded that "to exclude it would leave a lacuna in what happened". Thirdly, the judge concluded:
"How [A] reacted to the defendant's behaviour to her is an important part of this evidence and it is necessary for the jury to be able to know about this in order to be able to understand why events moved on in the way that they did and in particular to address the delay in allegations being made over a number of years. The evidence about the camcorder in the bathroom explains why she left home and would only go back for visits and helps, in my view, to inform the jury what was going on in the intervening years after the alleged last assault against her when she was 14; something that the jury could well ask about in the absence of any evidence concerning that period."
All those observations may well be true, but none of them makes the evidence evidence without which the other evidence in the case could not properly be understood. To say that evidence fills out the picture is not the same as saying that the rest of the picture is either impossible or difficult to see without it. On the facts of this case the rest of the evidence was not difficult to see without it. Moreover, it was not accurate to say that the bathroom incident was the trigger for A leaving home because it was not; she had left home for a different reason some little time afterwards.[13]We should also add that the fact that the jury might wonder about the delay or the time lag in reporting an incident cannot make it a sufficient basis for the admission of the evidence. Of course had it not been admitted in the way that it was, there might well have been a real possibility of it becoming admissible had there been cross-examination directed to the time lag. But the evidence of A about the offences which were alleged against this defendant was perfectly comprehensible without this evidence.[14]The significance of this evidence for this trial was that if it was true it demonstrated that the defendant was still taking an unhealthy sexual interest in his stepdaughter, not simply over the period covered by the counts on the indictment but subsequently in relation to the bathroom incident. The significance of the evidence relating to the computer, if it was true, was that he was some time later taking an unhealthy interest in pubescent children. That was potentially admissible as propensity evidence through gateway (d): see R v D, P and U [2012] 1 Cr.App.R 8 at 97, [2011] EWCA Crim. 1474. The judge, however, was never asked to address the admission of the evidence on that basis. Mr Walker for the defendant submits that had that been the submission the judge might well have been persuaded to wait to see how the rest of the evidence came out before making a decision about it. That is at least a possibility. There were unsatisfactory features about the evidence of the stepdaughter, reflected in the jury's inability to agree and the Crown's subsequent decision to proceed no further, and that might, for all we know, have affected the decision whether this additional evidence ought to be admitted or not. There was, for example, at least on the face of it, evidence contradicting the stepdaughter as to the finding of indecent pictures on the computer. A friend of hers gave evidence which, if it related to the same occasion, directly contradicted her. The judge was not able to consider the admission of the evidence and the exercise of the discretion which would apply to the admission of evidence through gateway (d) because of the way the application was made to her.[15]It is also at least possible that in cases of this kind evidence of this nature may sometimes be outwith the ambit of the bad character evidence altogether as simply part of a single course of conduct. But the judge had rejected that and, as we shall see, the way in which the evidence was dealt with in summing up clearly raised its status as propensity evidence.[16]That leads us to the summing-up. When the judge came to sum-up she did not sum-up the evidence simply as explaining some other evidence that the stepdaughter had given. Although she did not use the language of propensity to commit the offences charged, she narrated the evidence at a number of points in the summing-up in terms which recounted the stepdaughter's assertion that these two pieces of evidence showed the defendant to have a propensity to commit offences of the kind that were charged. As a result she gave the jury no caution about the right approach to propensity evidence.[17]The judge gave the jury a conventional direction upon cross-admissibility. There is no complaint about that, nor could there be. But the effect of it necessarily is that it is impossible to exclude the possibility that some members of the jury may have relied on the two pieces of evidence which are now in issue before us when arriving at the sole conviction that the jury returned in relation to a different complainant. It is impossible to tell. But with a background of a jury which was unable to reach a conclusion about any of the other more serious incidents alleged in the indictment, that possibility plainly cannot be excluded.[18]For all these reasons, we are quite satisfied in the end that the verdict in relation to the single count on which this defendant was convicted is simply not safe. We shall allow the appeal and quash the conviction.[19]We make it clear, as this court has on previous occasions, that when bad character is admitted it is essential that counsel and the judge focus on the exact basis upon which it is being admitted. A case which is truly one of propensity cannot and must not be dressed up as a case of important explanatory evidence. Moreover, whatever the basis upon which evidence has been admitted, it is essential that the analysis of the evidence and the use which can properly be made of it is considered before summing-up. In the present case if the judge had addressed this evidence as evidence of propensity, we think it is very likely that she would have admitted it as such. The fact that it was in dispute would not have gone to its admissibility. She might or might not have exercised a discretion, we do not know, but in principle the evidence was admissible. If prior to summing-up she had addressed with counsel, or counsel had addressed with her, the question of how the evidence could properly be used, we think it is very likely that at that stage she might well have concluded that it could be used as evidence of propensity and if she had reached that conclusion and given a careful direction based upon it we doubt very much if anybody could have complained. It is necessary to undertake that kind of review at the end of the evidence because it does sometimes happen that evidence which is admitted through one gateway becomes admissible on another basis. A simple example, not applicable to this case, is where the defendant has in the course of his evidence launched an attack on a Crown witness. There are many other examples as well. But the review is essential because the jury must have the help that it needs on how to deal with bad character evidence. What happened in this case was that they simply had a narration of the evidence and an unspecific series of directions which did not focus on the use which could properly be made of it. With the background that we have mentioned and the verdicts which were returned in relation to the other counts, it is quite apparent that no-one could exclude the possibility that that led to a verdict which should not have been returned. We say nothing at all about the merits of the case. The appeal must be allowed.[20]Is there any consequential matter that needs to be dealt with?[21]MISS SALAKO: My Lord, I would have to take instructions from the CPS.[22]THE VICE PRESIDENT: No, Miss Salako, we need to know now. This defendant is entitled to know when his appeal has succeeded whether that is the end of it or not.[23]MISS SALAKO: Based on the evidence that the Crown had at the first trial it is unlikely that the Crown would proceed against him on this count.[24]THE VICE PRESIDENT: It is very unlikely, I would have thought, and had you made the application it would not have been likely to succeed. Very well. In that case the appeal is allowed and that is the end of it.

Cited in 1 later judgment