Clark, R v [2012] EWCA Crim 696

Case No 2011/0613/C2[2012] EWCA Crim 696
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 8 March 2012
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE TREACY
MRS JUSTICE MACUR DBE
Between
R E G I N ACrownv
Between
LINCOLN CLARK
Computer 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 N Aullybocus appeared for AppellantMr S Mooney appeared for Crown
J U D G M E N T

LORD JUSTICE TOULSON:

[1]The appellant was convicted on 7th January 2011 at Taunton Crown Court of two counts of rape of a child and one count of inciting a child to engage in sexual activity. He was given leave by the full court to appeal against his convictions on the single ground that the trial judge, His Honour Judge Hume Jones, was alleged to have displayed to a defence expert witness hostility amounting to bias. In granting leave the court said that it was unable to evaluate the merits of the complaint without hearing a tape recording of the expert's evidence, which it did not then have. The court directed that each member of the constitution hearing the appeal should be provided with a tape recording. That has happened and we have each listened to the tape recording in full.[2]The victim, V, was a week or so short of their fourth birthday when V spontaneously made disclosures while at a neighbour's house which caused the neighbour to report what V had said to the local social services department. A few days later a police officer conducted an ABE interview which formed V's evidence at the trial. By agreement there was no cross-examination in view of V's age, although the appellant's defence was that the allegations were entirely untrue. Medical evidence was consistent with but not diagnostic of the abuse reported by V. The appellant in interview provided a prepared written statement of denial but answered no further questions. He gave evidence at his trial denying the allegations and called a child psychologist who was highly critical of the way in which the ABE interview had been conducted. The expert made many criticisms. The most significant of these were that the officer repeatedly used words of endearment or encouragement and that at a critical stage he led V in the direction that he was wanting V to go. The objection to the use of terms of endearment was that a young child has a natural tendency to want to please and to receive praise, and therefore the use of such words may cause a child to say what the child thinks the adult wants to hear. Overall, the expert said that it was the worst such interview that he thought he had ever heard.[3]The appeal is based on the number, nature and manner of the judge's interventions. Put broadly, interventions by a judge during defence evidence in a criminal trial may be objectionable for either or both of two reasons. They will be objectionable if they prevent the witness from being able properly to put before the jury evidence which the witness should have been allowed to give, or if they disrupt the manner in which the evidence is given in such a way as is liable to impair the jury's evaluation of it. Interventions will also be objectionable if the overall effect is to amount to a display of partisanship or bias, because of the risk that this may poison the minds of the jury. On the other hand, the judge has a responsibility to see that a witness focuses on the questions which he is asked to see that the witness does not drift off into matters which are either irrelevant or not matters properly for that witness and therefore inadmissible, to stop prolixity and to seek clarification where the judge considers it necessary. It is also perfectly permissible for a judge to probe a witness's evidence, provided that he does not go so far as to take on the role of prosecutor. To avoid that risk it is generally wise to leave questions of that kind until the end of a witness's evidence.[4]In the present case the witness showed a tendency at times not to focus on the question, or at least to use the question as a trigger for what he wanted to say rather than directly answering it. Worse, he also showed a tendency to say things which strayed beyond his proper role as an expert.[5]During those parts of his evidence in which the expert confined himself to answering questions put to him by giving evidence which he was properly entitled to give, there were no interruptions save the occasional intervention for the sake of clarity. This is therefore not a case in which the first possible ground of objectionability is made out. The expert was able to put his criticisms of the ABE interview fully before the jury, and the judge dealt with them fully in his summing-up of which no criticism is made.[6]As to the other ground of objectionability, ie hostility amounting to bias, we have considered with care the transcript and listened to the tape. We have paid particular attention to the passages of which complaint is made by Mr Aullybocus, who appeared for the appellant at the trial and has appeared before us. Mr Aullybocus submits that it is not possible for the court to gain a full appreciation of the atmosphere engendered by the judge's interventions but there is no point during the tape where the judge comes across as shouting. There is one passage to which we will come where his voice was raised. Of course we cannot be certain whether the playing of the tape, with whatever volume control setting was used, replicates the precise way in which it came across to the jury, but nevertheless we are satisfied that we have a sufficiently clear indication of the manner in which the examination of the witness was conducted. If one assumes that most of the words spoken were at normal volume then the passage in which the judge raised his voice was short and far short of shouting.[7]We turn to the particular passages of which complaint is made, bearing in mind that Mr Aullybocus submits that these are merely illustrative. At an early stage in his evidence the witness was asked:
"As a consultant psychologist were you also trained in the analysis of tapes?"
He said that he was. He was then asked:
"Can you explain that a little bit to the jury?"
The witness then started to give a detailed history of his training.

The judge intervened:

"He has been trained in the analysis of tapes. Let us try and keep it short, shall we?"
Listening to the tape we detect no trace of hostility in that observation. It was said in an ordinary voice and could not have been interpreted as in any sense disparaging the witness or the quality of his evidence. It was an encouragement to take the point shortly, and sensibly so.[8]The next passage highlighted by Mr Aullybocus concerns a part of the police interview where V was being brought towards the crucial matters. The officer had said to the witness:
"Something you said made it hurt."
He then went on to ask V to explain what that was. This was a reference back to something which V had said on an earlier occasion. The psychologist was highly critical of this because he said that this was leading. At that point the judge intervened and said he did not understand the witness's answer. Then followed about two pages of exchange between the judge, the psychologist and the witness.[9]The interpretation put on it by Mr Aullybocus is that the judge was undermining the evidence which the witness was giving and was demonstrably hostile to it. It is clear from reading the tape, and from what the judge later said about this part of the interview in his summing-up, that he was trying to get clear what was said by the expert to be objectionable about referring the child back to something which the child had said earlier. In other words, as the judge put it at one point, what was the question leading to? Was it objectionably leading, in the sense of leading the child to make a particular allegation, or was it merely leading the child to something which the child had said earlier?[10]Mr Aullybocus makes a separate complaint that in fact the child had not actually said that "something made it hurt" earlier that day. It had been said by V on an earlier day. However, that does not bear on the question whether in this intervention the judge was acting in a partisan fashion or seeking clarification. Listening to the tape, there is nothing to indicate that these questions were being put aggressively or in a partisan fashion. The point which the judge was exploring was a legitimate point, and the witness himself said that it could help the child to remember something which the child had said earlier.[11]The next area of criticism has to do with the judge's intervention when Mr Aullybocus was seeking to extract evidence from the psychologist about whether things that had been said by the child in a different context some months earlier could have a bearing on the reliability of the ABE interview. This line of questioning began with Mr Aullybocus saying:
"That disclosure in January, does it have any bearing whatsoever on what is discussed in May?"
May was the date of the ABE interview. The witness said: "Absolutely." He was invited to expand his answer and that led the witness to start speculating on who else might have been told about what the child had said in January. At this stage the judge intervened and said: "Let's not speculate." There followed an exchange between counsel and the judge in which the judge made it plain that he was not going to allow questioning of the expert witness based on what might or might not have been said to other parties between January and May.[12]In our judgment the judge was entirely right. The point which Mr Aullybocus was wanting the expert to address had not featured in any way in the expert's written report, nor in our view would the judge have given permission for evidence along those lines if it had been in the report. Mr Aullybocus submits that the child psychologist was entitled to give the jury expert evidence about the propensity of young children to repeat things to other people. It must be remembered that the sole reason for allowing expert evidence is where the expert has some particular knowledge which would not be available to members of the jury from their ordinary experience. Certain problems associated with interviewing young children come within that category, but the readiness of three-year-olds to chat to their friends or to adults is in a different category. The judge was quite right to stop this line of questioning, both on the procedural point that it had not formed any part of the expert's report and on the fundamental grounds that the expert was being invited to speculate on factual matters that he did not know and in an area which did not call for particular expertise.[13]Then followed a passage which began with Mr Aullybocus asking the witness:
"... the information that came out through the interview, is it reliable?"
To which the psychologist said: "Absolutely not." The judge intervened and ruled that he was not going to allow the witness to answer a question in those terms. However, he did permit the witness to express his opinion about the quality of the interview compared with other such interviews and the witness said that it was the worst that he had ever experienced. However, the matter did not stop there because in response to the question: "How good or bad was it compared to the other analysis that you have carried out?" The witness said: "It was by far and away the worst. I have never seen one this bad before. And normally when you come across something that is so poor, prosecution normally go for a second opinion. And based on that second opinion..." At that point the judge interjected, saying: "I am sorry, I am not going to have this." That is the point at which on the tape his voice became raised. The judge was fully entitled and indeed right to stop the witness at that stage. It was one thing for the witness to say, as he was entitled, that the ABE interview was a very poor one and to give his reasons, but to go on to say what would normally happen in such a situation and, if the judge had not stopped him, to suggest what the prosecution would normally have done based on a second opinion, was to go far beyond the witness's proper province. The witness had accreditations as an expert witness and ought to have appreciated that this was going too far. He had on a number of occasions already been checked by the judge, and it was in that context that the judge spoke in a raised voice to stop him going further. He was entitled to use a raised voice in the circumstances to establish his authority and to stop the proceedings taking the course they were, despite several previous attempts on his part to keep the witness in proper check.[14]Both counsel appear to have come away with the view that the judge had by this time a degree of frustration. That may be perfectly true. The judge had some cause to be frustrated, but we can detect nothing in the judge's conduct which amounted or indeed came close to impropriety. The interventions which he made would not have been necessary if the witness had confined himself to matters on which he was properly entitled to give evidence. In our judgment there is no cause to doubt the safety of the convictions and this appeal is dismissed.