Ahmed, R. v [2012] EWCA Crim 99

[2013] EWCA Crim 992Case No 201203137 C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Isleworth Crown Court
HHJ Matthews
T20117609/T20111523
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/06/2013
Before
LORD JUSTICE FULFORDMR JUSTICE OPENSHAWSIR DAVID CALVERT-SMITH
Between
ReginaCrownPSDefendant
Mr Merz for ProsecutionMr Mansfield QC and Mr Stone QC (instructed by Veja and Co Solicitors) for DefendantHearing Hearing dates: 7 th June 2013
Judgment

Introduction

[1]On 1 May 2012 at the Isleworth Crown Court a jury convicted the appellant by a majority (10:2) of four counts of indecent assault on the same victim (“V”) contrary to the Sexual Offences Act 1956 (counts 1, 2, 3 and 5). On 1 June 2012 he was sentenced to 7 years imprisonment (made up of concurrent sentences of 1, 2 and 3 years and a consecutive sentence, on count 5, of 4 years). The appellant was acquitted of an offence of rape. He appeals his convictions on these four counts with the leave of the single judge who determined that Ground 2 alone of the appellant’s various written arguments had merit sufficient to grant leave, and in the event the other grounds have been abandoned. As a result, the sole issue before us is the adequacy of the judge’s direction to the jury on the approach they should take to the very considerable delay – 34 years – before these alleged events were brought to trial.

The case against the appellant

[2]The complainant is now 44 years old, having been born in 1968. She qualified as a doctor in 1992. She comes from a family of devout Buddhists from Sri Lanka. Every fortnight whilst she was a child her family travelled from Birmingham to attend services at a temple in West London, which the appellant had joined as a junior monk in February 1978. V described the appellant as being younger than the other monks and he participated in Sunday school classes and other services. He spoke with her parents and on one occasion in 1978 he asked her mother to tell V to send him a postcard from Sri Lanka. On V’s account, she refused to do this and it was at this point she was told the appellant’s name.[3]The allegation against the appellant is that in 1978 he committed four sexual assaults on V, on three occasions in his bedroom and once in the shrine at the Temple (these were adjoining rooms on the first floor of the building). V provided a plan of the premises (a semi-detached house) and she gave evidence as to the layout. She said the bedroom was quite dark, there was a desk in the middle with a chair behind it and she remembered there were some books. She described the appellant as a man who wore the robes of a monk; he had very short dark hair when he first arrived at the temple and fingernails that were longer than those of other monks. He spoke imperfect English at that stage.[4]V said the appellant offered her particular sweets (fruit polos) as an inducement to go upstairs prior to the first incident. Then, sitting on the chair behind the desk, he touched her vagina having put his hand under her knickers. She was wearing a knee length blue dress with a blue cord with toggles. She was shocked by his actions; neither of them spoke; and after he gave her a sweet, she returned downstairs. She did not tell anyone what had happened.[5]On the second occasion (a few weeks later) the appellant again used the sweets’ ruse, and when inside his bedroom he put his hand around her and commented on her hair. Thereafter, he put his hand under her skirt, and having rubbed her stomach at the top of her knickers, he “shoved” it inside touching her vagina for about two minutes. Again, she did not tell anyone what had occurred. She cut her hair because she now associated it with something unpleasant.[6]On the third occasion, (again a few weeks later) he inserted his fingers inside her vagina for about 10 seconds, causing her pain. She told him she did not like it and he let her go.[7]The door to the bedroom was always left partially open and the appellant told V that it would kill her father if she told her parents about what he had done.[8]The final event was on the occasion of the annual general meeting at the Temple. V was alone in the shrine room when the appellant entered and having fumbled with his robes, told V to “hold this” – his erect penis which she remembered as warm and fleshy. She had it in her hand for 5 – 8 seconds. He grabbed her upper arms and pushed her forcibly against the wall, an action that hurt her. She then felt excruciating pain in her vagina, as if he had cut her with a knife. She said she was 100% sure he entered her with his penis, and for about a minute he used a shoving motion until he ejaculated (she later saw blood and semen on her clothing and body). She was trying to shout but he had his left forearm against her mouth. Afterwards he grabbed her arms, squeezed really hard and said that what had happened was a secret and she must not tell anyone because it would make her mother angry and it might kill her father. Again, she did not tell anyone what had occurred. For this incident, the appellant was acquitted of rape but convicted of indecent assault.[9]She went to the temple less frequently thereafter, and she was never alone with the appellant again. He accompanied her family on a trip to Calais in October 1979, and during the trial she identified the appellant from a photograph of this event (shown at the request of the defence) in which the appellant and V were sitting beside each other.[10]There was limited corroboration of V’s evidence, namely that the defendant admitted giving sweets to children and he liked fruit polos; the testimony of V’s mother that she refused to come out of her room when the appellant called at the house to give her sweets; the change in her attitude at school; and her strong reaction when her partner took hold of her by the arms, which reminded her of the appellant’s actions.

V’s account to others

[11]During the years that followed, V described what had occurred to her to different people, as follows: i) In 1987 she told a friend in the context of a discussion about relationships and virginity that a Sri Lankan man, whose name she did not provide, had sexually assaulted her. This friend gave evidence during the trial, and she recalled that V described the perpetrator as someone who was close to her family and a respected member of the Sri Lankan community. She referred to him as “uncle”, meaning an older man who commanded respect. V’s evidence was that she did not feel it was the right time to speak to the police. ii) In April 1990 she told a man with whom she had a long relationship that a Sri Lankan monk had raped her. Broadly, his description of what he was told matched V’s account to the jury. V gave him the name of the perpetrator, which he can no longer recall. At this time V still had vivid memories of what had occurred, including the clothes she had been wearing when she was assaulted. V did not go to the police at that stage because the appellant had returned to Sri Lanka and she not yet told her parents what had happened. iii) V told her sister in 1991 that the appellant, whom she named, had raped her behind the door in the shrine room when she was 8 – 10 years old. Her dress was torn and there was blood on it. Her sister knew the appellant. V became reluctant to go to school and instead spent time in bed. iv) She told her husband in 2001 that the appellant had raped her. His evidence during the trial that was broadly consistent with the appellant’s account. v) V told her mother over the years that she had been the victim of sexual abuse. V’s mother gave evidence that in 1978 the appellant was one of the younger monks at the temple. She recalled that when V was 8 or 9, the complainant brought sweets to their home for V but she refused to leave her bedroom. V’s mother said that there was a time when her daughter complained that her tummy ached and she was reluctant to go to school. She had formerly been a very good student but her personality changed and she became withdrawn. V’s mother was first told in 1990 about an incident of sexual assault that had occurred in the shrine room.[12]V’s evidence was that the birth of her child in 2010 provided the catalyst for informing the police about these offences and her sister confirmed that V once again started talking about these events.

The appellant’s account

[13]The appellant denied these allegations when he was interviewed following his arrest on 14 September 2010. He told the police that the temple was small and crowded, and the shrine was in constant use. He suggested that the allegation had been maliciously manufactured by a group of people who were against him. He maintained an attempt was being made to oust him from the temple in favour of another man. He accepted he took sweets to the complainant.[14]The appellant described his arrival at the Chiswick temple on 8 February 1978, when he was 32 years old. At that time he could only speak limited English. He said that for the first few weeks he did not shave his head (in conformity with the tradition of Buddhist monks). The late Reverend Piatisa was the head monk and other monks lived at or visited the temple. He recalled he wore orange robes and the temple had a library. He said he shared a bedroom with two other monks, which had a table, a chair, two fixed beds and a folding bed and a washbasin. One of these monks was the same age as the appellant. The single rooms were allocated to Reverend Piatisa and Reverend Salatisa. He did not start teaching until 1980. When asked about the alleged assaults, he said he abided by the Buddhist principle that monks must not touch women. He suggested a nine-year-old child would not have been in the shrine room on a Saturday or a Sunday and there were many visitors to the temple (about 400 people during the course of a day).[15]There was a second complainant, but the appellant was acquitted of the counts on the indictment that reflected her allegations.

The trial

[16]Although the exact nature of the defence at trial is the subject of detailed analysis below, in brief the central issue as advanced by the parties was whether V had correctly identified the appellant as the perpetrator. It was not suggested during V’s cross-examination that she had invented the allegations of assault; instead, the appellant disputed her evidence that he was the perpetrator.[17]The appellant submitted in the court below that V’s delay in telling the police about these alleged events had prejudiced his trial. In particular, contemporaneous medical records relevant to the allegation of rape might have been available closer in time to the events in question; the appellant no longer had access to photographs of his bedroom at the temple and the other monks could not be called as witnesses. As already indicated, the sole point on this appeal is the appellant’s argument that the judge failed to give an adequate direction to the jury in relation to the issue of delay (34 years by the time of the trial). An element of this ground of appeal is the contention that the judge improperly narrowed the issues in the case to identity alone.[18]On 26 April 2012, the Thursday before the summing up began on Monday 16 April 2012, Mr Stone who appeared for the appellant at trial, addressed the judge on certain factors relevant to delay. He drew the judge’s attention to the authority of Percival (to which we will turn in some detail in a moment) and he encouraged the judge to give a tailored direction that would reflect the impact of the delay in this case, in order to ensure the jury understood the approach they needed to take on this issue, given the circumstances of the case. He invited the judge not to dilute the direction because the defence had been carefully researched and presented.

The judge’s directions were as follows:

“There has been a delay in the matters coming to light and you’re entitled to consider why these matters didn’t come to light sooner. The defence in relation to [“V”] do not challenge her assertion, her broad assertion, that she was sexually assaulted on at least one occasion by an adult male in the […] temple in 1978, although they challenge the assertion that she was raped. The central issue in her case, the rape apart you may think, is the identity of her attacker. I will come on to that in more detail shortly. So delay in her case, delay as I say in reporting the allegations is limited, you may think, to the question of the accuracy of her identification of the defendant as her attacker. In relation to [the other complainant] the defence say that she hasn’t told the truth about being sexually assaulted in around 1984, 1985. Now when children are abused they are often confused about what has been going on and why it’s been going on. They are, of course, children. Questions may be going through their mind at the time. Is this wrong, or is this normal adult behaviour? If it’s wrong am I to blame? Who is going to believe me if I say something to anyone? What will happen if I do speak out? Children subject to sexual abuse may be subject to mixed emotions. In this case both girls were members of Sri Lankan families where the adults in the family, the parents and possibly grandparents, were devout Buddhists, they were part of a Sri Lankan diaspora in the United Kingdom where attendance at the temple was a important part of their life, sufficiently important in the case of [“V”]’s family to travel to [west London] from Birmingham on weekends to attend services at the temple. Central to the temple life were the priests, powerful figures perhaps in the mind of a young child. In [“V”]’s case she says to you she was told by the defendant not to say anything to her parents, it would kill your father was the phrase she used, she said that she was told by the defendant. Although she spoke to others from about 1987 onwards, she was conscious that twenty years or more had passed since the events and she recalls that line from the novel to Kill a Mockingbird, that it needed the evidence of two children to equal that of one adult. The actual trigger for reporting the matters to the police in 2010 in her case appears to have been her pregnancy the previous year […] You will want to consider these and no doubt other matters when assessing the reasons for the delay in this case and whether that delay in any way affects the credibility of these two central prosecution witnesses. Now you must decide a case as I have repeated on more than one occasion only on the evidence that you have heard, not on speculation. About what evidence there might have been. There won’t be any more. It’s important, perhaps, to remember the nature of this trial, it’s what we call adversarial. I don’t decide, you don’t decide what evidence is going to be called. That’s decided on the part of the prosecution by the prosecution and by the defence on their part, they decide what evidence it is that they want to put before you. As a result, of course, necessarily they are bound to be selective. There it is, that’s the evidence, so you consider in each case, that’s again the case of each witness, whether he or she has been telling the truth whether he or she has been accurate in what they have said to you, decide who is reliable and who is unreliable. There is also another way in which delay can affect matters. The passage of time affects the memories of us all. In this case in excess of some thirty years has passed since the matters alleged by [“V”] took place, in excess of twenty-five years in relation to the matters alleged by [the other complainant]. You should give careful consideration of the effect, if any, the passage of time has had on a witness’s recollection in this case. The principle witnesses, for the Crown, of course, were [“V”] and [the other complainant] and the defendant also gave evidence. One thing that is not in dispute, you may think, is all three of those persons are highly educated and intelligent. [“V”] told you that she had never forgotten the events in the […] temple and her account, you may think, contained a great deal of detail. In her case the fact that it is accepted that she was sexually assaulted at the […] temple by an adult male meant that her account of the detail of what happened was subject to less scrutiny by the defence than otherwise might have been the case and the delay factor in her case, perhaps, is less problematic, it’s a matter for you. […] The defendant was also able to recall a number of events in some detail. The precise date of his arrival at the […] temple the weather at the time, his state of health at the time, the names of other priests who were either resident or visiting the […] temple in 1978, the trip to Calais including his recall that it was [“V”] who came and sat next to him and not the other way around. Another way in which the passage of time may act to disadvantage the defendant is that lines of enquiry which might otherwise have been open to him have been closed and complaint is made on his behalf about the absence of medical evidence following the alleged rape of [“V”]. It is submitted to you, on his behalf, that if she had reported the matter at the time the medical evidence might have undermined her assertions that there was semen and blood in her knickers. On the other hand, of course, it may have supported her assertions and in any event you may think, again it’s a matter for you, it would have been necessary for [“V”], aged nine at the time, to have reported the matter immediately in order for the knickers containing semen and blood or not as the case may have been to have been preserved. The defence submit also that they have been hampered by the lack of photographs of the defendant’s bedroom […]. There are exhibited, as you have, as you know, plans of both the temples produced by the defence, plans drawn up by the defendant in his interview, plans drawn by [“V”] as part of her witness statement and by [the other complainant] as part of her statement. Evidence has been given by both prosecution and defence witnesses of the dimensions of those rooms at both the temples and indeed the activities which an observer in 1978 in relation to [a temple] or 1984 and 1985 in relation to [another temple] might have expected to have seen. The defence submit that they have lost the ability to call the monks who were also present at [the] temples at the relevant times, who may have been able to throw further light on such issues as the defendant’s length of hair in 1978 and his movements at any particular time in 1978 and 1984 and ’85. The evidence of the defendant was that the head priest and certainly one other who were at [the temple] in 1978 have died, the whereabouts of others who may have been at either [of the temples] is not so clear in terms of the evidence. In any event the defence, as Mr Stone reminded you, called a very large number of witnesses, many of whom were able to give first hand evidence of the temple and its activities and indeed the defendant at the relevant times. So the question of delay in so as it affects memories and possible loss of lines of enquiry you must consider, and consider the respective submissions made by prosecution and defence counsel on that topic and consider whether the defendant has been placed at a material disadvantage. Make your own assessment and bear that in mind when considering the ultimate question which you have to decide which is whether on all the evidence the prosecution has made you sure of the defendant’s guilt. So when it comes to the facts it is your judgment alone which counts. My role is to see that the trial is conducted fairly and to tell you what the law is and how to apply it to the issues of fact that you have to decide and to remind you of the important evidence on those issues.”

The authorities

[20]Before we turn to the criticisms that are made of this direction, it is helpful to consider the jurisprudence on this issue (viz. the directions to juries when delay is an issue). The convenient starting point is R v Percival (Court of Appeal transcript 19 June 1998), which forms a central plank of the appellant’s argument. In the course of the judgment in that case, this court observed that a delay of 32 years “must threaten the fairness of any criminal trial, not least when the Crown case depends on late complaint and oral testimony” and Holland J, in giving the judgment of the court, went on to observe at page 15:
“That experience and the underlying problem of unreported abuse has served to encourage experienced judges to be more liberal in their concept of what is possible by way of a fair trial in the face of delay, but, as we think there is a price, namely safeguarding the Defendant from unacceptable resultant prejudice by a ‘proactive’ approach in terms of directions. Before a conviction following such a trial can appear to be safe, it is necessary to be satisfied that the judge has confronted the jury with the fact of delay and its potential impact on the formulation and conduct of the defence and on the Prosecution’s fulfilment of the burden of proof. […] First, the judge at no stage drew the jury’s attention to the point that we have sought to make in this judgment: that there was such potential prejudice to the Defendant by reason of the delay that the only real remedy was conscientious concern for the burden and standard of proof. Not only was there no connection made between the problem and the potential solution, but the judge sought to deal with delay by even handedly drawing attention to its potential impact upon the Crowns evidence. We readily accept that there was a place in the summing up for a reminder that it was potentially unfair to the complainants to be censorious about failures to recall minutiae, but not so as to introduce the topic as a factor balancing and thus mitigating potential prejudice to the Appellant: the direction, “Those are the two sides of the coin” wrongly equated the problems confronting both Crown and Defence. Each side did have its problems but they were different in nature and importance. Second, the judge did not adequately put the imprimatur of the bench behind such directions as he did give about delay. His essential recourse was to recite the respective submissions of counsel. These were faithfully reiterated in a balanced way but what, as we think, was lacking was a clear expression as to where he stood as the person seized with the task of securing a fair trial, notwithstanding the delay. A conspicuous example is his review of the evidence of Stephen M. He failed to remind the jury that the original allegation by Stephen M. had been of some twelve offences committed by the Appellant (he said there had been four or five and never really understood Mr Holroyde’s attempt at correction), but much more importantly, failed to draw the jury’s attention to the worrying aspects of Stephen M’s original contention and the subsequent volte face. All this might not have been so significant had there been stronger earlier directions; absent such, we give weight to the point.”
[21]In Henry H ((1998) 2 Cr App R page 161), this court reviewed a number of the authorities in which it had been decided that a specific direction on delay should have been given (these related particularly to cases of real antiquity when there was a sole, uncorroborated complainant). Before the court addressed the particular facts in that case, Potter LJ observed:
“It is apparent from the above decisions that, in cases of this kind, each will fall for consideration on its own particular facts and circumstances, to which the judge’s summing-up must be appropriate (see in particular per Lord Taylor C.J. in John E as quoted above, per Hobhouse L.J. in B and per Brooke L.J. in J, unreported October 15, 1996). Comparison of the various decisions also suggests that it will be unusual for a conviction to be regarded as safe in a case where there has been no direction on difficulties which the defence contend have arisen from the delay in the making of the complaints and the bringing of the cases to trial. It is ultimately nonetheless a matter for this Court to decide whether the conviction is safe in the light of the length of the delay, the cogency of the evidence and all the circumstances of the case. To that extent, comparison with the facts in other cases is unlikely to be decisive in deciding whether or not the absence of a direction on delay is fatal to the conviction. (p.168 B) […] We consider it is plain upon the state of the authorities to which we have referred that it is desirable in cases of substantial delay that some direction should be given to the jury on possible difficulties with which the defence may have been faced as a result of such delay. Nonetheless, such a direction is not to be regarded as invariably required except in cases where some significant difficulty or aspect of prejudice is aired or otherwise becomes apparent to the judge in the course of the trial. Equally, such a direction should be given in any case where it is necessary for the purposes of being even-handed as between complainant and defendant.”
(p.168 E)[22]This court considered both Percival and Henry H the following year in Graham W [1999] 2 Cr App R page 201. Although the correctness of the decision in Percival was not doubted, Lord Bingham LCJ, having emphasised the difficulties that the appellant in that case had faced as a consequence of delay (there was a very long list of problems that had been caused by memories that were at risk of being unreliable or uncertain on key issues and potentially important evidence was no longer available), said as follows:
“While therefore we have no doubt of the correctness of the Courts’ ruling in that case, it is in our judgment to be read in the light of the facts which gave rise to it. That was the approach of this Court in Lloyd (unreported, November 30 1998), an appeal in which strong reliance was placed on Percival. In Lloyd the applicant had been convicted on one count of indecent assault, there having previously been two unsuccessful applications to stay the proceedings as an abuse. At page 3F of the transcript the Court said: “It is in our judgment important to bear in mind that every decision is related to its own facts and we would certainly wish to express support for the general proposition advanced by the court in Percival, namely that in these very long-delayed cases the need to guard against prejudice is particularly real. Nonetheless, the trial judge is in the best position to judge what direction to the jury is called for and it would seem to us undesirable to be unduly prescriptive and to encourage convicted defendants to believe that an appeal would succeed if some omission or some lack of emphasis could be pin-pointed in the trial judge’s direction.””
(p.211 D) “It is in our judgment important to bear in mind that every decision is related to its own facts and we would certainly wish to express support for the general proposition advanced by the court in Percival, namely that in these very long-delayed cases the need to guard against prejudice is particularly real. Nonetheless, the trial judge is in the best position to judge what direction to the jury is called for and it would seem to us undesirable to be unduly prescriptive and to encourage convicted defendants to believe that an appeal would succeed if some omission or some lack of emphasis could be pin-pointed in the trial judge’s direction.”” (p.211 D)[23]6 months later, this court considered Percival again, this time in the case of Brian M [2000] 1 Cr App R page 49, although it is to be noted the court was apparently unaware of the decision in Graham W. Rose LJ made the following observation about Percival:
“We find in the judgment no attempt by the Court to lay down principles of general application in relation to how judges should sum up in cases of delay and we accordingly would wish to discourage the attempts being made, with apparently increasing frequency, in applications and appeals to this Court to rely on Percival as affording some sort of blueprint. Indeed in this area, as in so many others, prescription by this Court as to the precise terms of a summing-up is best avoided. Trial judges should tailor their directions to the circumstances of the particular case. In a case where there have been many years of delay between the alleged offences and trial, a clear warning will usually be desirable as to the impact which this may have had on the memories of witnesses and as to the difficulties which may have resulted for the defence. The precise terms of that warning and its relationship to the burden and standard of proof can be left to the good sense of trial judges with appropriate help and guidance from the Judicial Studies Board. In some cases, however, such a warning may be unnecessary and its absence, where the evidence is cogent, will not necessarily render a conviction unsafe, particularly when counsel’s submissions at trial have not highlighted any specific risk of prejudice – see Henry H [1998] 2 Cr.App.R.161, where the authorities at that time were helpfully reviewed in the judgment of this Court given by Potter L.J., and see in particular the judgment at page 168F.”
(p.57 E)[24]On the basis of these authorities, it is self-evident that no two cases are the same and whether a direction on delay is to be given and the way in which it is formulated will depend on the facts of the case. We stress, therefore, that the need for a direction, its formulation and the matters to be included will depend on the circumstances of, and the issues arising in, the trial. However, we do make some brief and general observations as to the possible structure of these directions later in this judgment (see paragraph 37).

The appeal

[25]Against that background we turn to the criticisms that are made as to the approach of the learned judge in this case. Did the judge err when he directed the jury that identity was the issue in the case?[26]Mr Mansfield QC, on behalf of the appellant, highlights that the defence at trial was that V’s allegations were untrue in the sense that the appellant had not behaved as alleged. Given this defence, it is argued it would have been difficult, and in any event unnecessary, for him positively to suggest that the allegations, in their entirety, were false although it is suggested that the possibility remained that V had invented the suggested rape and indecent assaults. However, as the case progressed before the jury, the appellant’s counsel explored the question of whether V had been assaulted by another monk and he tested the strength of V’s identification. It follows that although the appellant in interview (when he suggested there was a plot against him at the temple) and in his defence statement appeared to raise the possibility that the incidents had never occurred, this line of defence was not pursued at trial.[27]Nonetheless, Mr Mansfield QC argues that given the defence did not concede that V had told the truth save for the identity of the perpetrator, the jury still needed to decide not only whether the appellant had been correctly identified but also whether they were sure that V was reliable when she said she had been sexually assaulted and raped by a monk. On this basis, the appellant’s submission is that the judge wrongly equated the lack of an attack as regards elements of V’s account as an admission by the appellant that she was correct. Indeed, the judge’s direction to the jury on the first three indecent assault counts was that the issue of identification was the sole question for them to determine: if they were sure she was correct in identifying the appellant, he was guilty. For the last incident (for which indecent assault was an alternative to rape) the judge additionally indicated the jury needed to be sure V had been indecently assaulted.[28]Mr Mansfield suggests this question – whether V had been indecently assaulted at all – was an important issue. He highlights that V in her reports to her friends, family and partners prior to her complaint to the police spoke particularly about having been raped. Rape was a “live” issue, therefore, in the case, and

the judge during the summing up posed the direct question for the jury:

“[f] firstly, are we sure that [V] was raped?”
. It is emphasised that when the victim’s credibility was in question on the issue of whether the alleged offence had occurred at all, the jury acquitted the appellant.[29]Mr Merz, for the Crown, submits that whatever the position may be in theory, the reality of the trial was that by the time V was cross-examined, the defence was simply asserting that this was a case of mistaken identity. The alleged temple plot had disappeared and defence counsel concentrated his questions on whether V may have confused the appellant with the real perpetrator.[30]Following the hearing of the appeal, Mr Merz drew our attention to the judge’s ruling on the applications to stay the indictment as an abuse of process and on the submission of no case to answer (26 April 2012), in which he said: Now, however, in the case relating to (V) no challenge is made by the defence to her assertion that she was sexually assaulted by an adult at the (west London temple) in 1978 on at least one occasion. The separate issue in her case is the identity of her attacker. Accordingly the defence does not and cannot complain about a lack of available material to support any cross-examination which might undermine her testimony on such matters save in relation to count 4, the count of rape. She says that she was vaginally raped by the defendant while standing against a wall in the shrine room at the […] temple. There is a challenge to this by the defence on the basis that this account describes an event which would have been physically impossible due to the respective height of the defendant and herself. If this was an incorrect description of the issues, we would have expected it to have been raised by counsel. Instead, there was no complaint that the judge had misrepresented the issues in the case.[31]Therefore, in our judgment it is significant that this matter was not canvassed in advance of, or during, the summing up. It was not one of the subjects Mr Stone identified for discussion on the day before closing speeches (although the topics of cross admissibility, identification and delay were raised), and when the judge directed the jury as set out above, Mr Stone did not voice any concerns. Moreover, the appellant has not alleged in the grounds of appeal that the judge misdirected the jury by failing to identify an available defence (viz. the incidents may have been invented by V) or that the summing up was defective vis-à-vis the matters that needed to be established for three of the counts, that V had been indecently assaulted. Instead, this issue – which formed a significant part of the appeal – appears to have been something of an afterthought.[32]Accordingly, this history demonstrates that this contention simply did not feature in the case, and it is important to remember that the parties in criminal trials are enjoined by the Criminal Procedure Rules, Part 3.2, to identify at an early stage the real issues in the proceedings; furthermore, it is not the duty of the judge to build up a defence for an accused that has not arisen on the evidence. The jury should not be asked to consider purely theoretical defences, particularly when they do not reflect the way in which the parties have conducted their respective cases. In our judgment, therefore, notwithstanding Mr Mansfield’s helpful analysis, the judge’s approach to this issue reflected the clear reality of the trial and he correctly left identity as the determinative factor that the jury needed to resolve (save on count 5). Accordingly, we reject the submission that the conviction is unsafe because the judge’s direction provided no guidance to the jury on the effect of delay on the question of whether the assaults occurred at all: this was not something the judge was required to address. Was the direction on delay appropriate as regards the issue of identity?[33]It is submitted by Mr Mansfield that the direction on delay regarding identity was wholly insufficient. Although reference was made to the burden and standard of proof as it affected delay, it is correctly observed that it came late in the direction, immediately before the standard, general direction on the burden and the standard of proof, and it is submitted it was given inadequate emphasis. It is argued that the jury should have been told there was a substantial need for caution or “conscientious concern”, or an expression to like effect should have been used. The appellant submits that when giving the jury this direction (the purpose of which is to ensure the defendant’s trial is fair), the judge ought to have focussed on the defendant’s position alone and he should not – at that stage – have dealt with other issues linked to the issue of delay. For instance, it is not disputed that it was entirely appropriate for the judge to address delay in the context of the complainant’s evidence, but it is contended that wider considerations of this kind required distinct and separate treatment, clearly delineated from the effect of delay on the accused’s case.[34]The prosecution submits that the direction addressed all of the relevant issues, including the individual matters that have resulted in prejudice (absent witnesses; unavailable medical records; fading memories etc.). The judge in the summing up dealt with all these matters.[35]As it seems to us, the direction to the jury on delay, given the facts of this case, should have included the following elements: i) delay can place a defendant at a material disadvantage in challenging allegations arising out of events that occurred many years before, and this was particularly so in this case when the defence is essentially a simple denial (the defendant was saying that he had not acted as alleged); ii) the longer the delay, the more difficult meeting the allegation often becomes because of fading memories and evidence is no longer available – indeed, it may be unclear what has been lost; iii) when considering the central question whether the prosecution has proved the defendant’s guilt, it is necessary particularly to bear in mind the prejudice that delay can occasion; and iv) a summary of the main elements of prejudice that were identified during the trial.[36]As set out above, when dealing with the consequences of delay, the judge described in some considerable detail the reasons V gave for the delay (as well as those provided by the other alleged victim which we have not quoted) and he suggested some of the questions that may have influenced the two complainants. The jury were told that they were not to speculate on evidence that had not been called and that it was for the prosecution and the defence to decide what evidence to introduce and what to leave out of the trial. Although the judge directed the jury that the effluxion of time can affect memory, he did so when reminding the jury that V and the appellant had been able to remember a substantial amount of the detail of what had occurred. Thereafter, in suggesting that delay may have acted to the appellant’s disadvantage because “lines of enquiry which might have been open to him have been closed”, particularly as regards the medical evidence for the last of the allegations (the shrine room incident), the judge then made the observation that if the records had been available they may have assisted the prosecution, and he commented that this particular contention was in any event dependent on a 9-year girl having made a complaint that would have led to a medical inspection. He highlighted the lack of photographs, and the inability to call the monks who were at the temple at the relevant time who might have assisted on hair length and the appellant’s movements, whilst referring to the other evidence that had been called. Thereafter, he directed the jury to consider the delay and its effect on memories and the possible lost lines of enquiry, together with the submissions of the prosecution and the defence as to whether the defendant had been placed at a material disadvantage, when they were deciding if the prosecution had made them sure of guilt.[37]Although viewed globally the judge’s direction contained all of the essential elements he needed to include when directing the jury on this issue (set out at paragraph 35 above), we do not consider it was necessarily structured in the most appropriate way, given the circumstances of this case. As with the direction on the burden and standard of proof, the direction regarding delay – as it affects the defendant – is designed to ensure his criminal trial is fair. The courts have decided that even very considerable delays in bringing prosecutions can, save exceptionally, be managed in the trial process. But this is often (although not necessarily always) best addressed by a short, self-contained direction that focuses on the defendant rather than amalgamating it with other aspects of the relevance of delay, for instance as regards the victim or victims. The risk of combining and interweaving the potential consequences of delay for the accused with the other delay-related considerations (“putting the other side of the coin”) is that the direction, as the principle means of protecting the defendant, is diluted and its force is diminished.[38]However, although we would have favoured a different approach to this aspect of the summing up, we do not consider what the judge said amounted to a misdirection. As we have already observed, the judge addressed all the matters relevant to this issue and he made it clear that the problems consequent on delay were directly relevant to the burden and standard and proof. This case turned on the central question of the reliability of V’s identification of the appellant 34 years after the events in question, and it is inconceivable that the jury did not understand the potential difficulties this posed for the defence. Moreover, this jury carefully discharged its duties, acquitting the appellant of the charges relating to the other complainant and the charge of rape based on V’s evidence.[39]In any event, the case against the appellant was compelling. He was a young monk who had recently arrived at the temple, thereby fitting the man described by V; she had every reason to remember the identity of her abuser; the appellant knew her family and he went on a day trip to Calais with them in 1979 (she identified him during the trial from a photograph of this trip); he liked the fruit polos described by V; the complainant’s mother testified that she refused to come out of her room when the appellant called at the house to give her sweets; V’s attitude at school changed; she evinced a strong reaction when her partner took hold of her by the arms; and years later she was able to give his name when describing the abuse she had suffered. In those circumstances, this was a strong case based on the evidence of a witness whose credibility on the issue of identity was accepted by the jury. Furthermore, the lack of photographs of the appellant’s bedroom – given there was a plan of the house – and the unavailability of evidence from the other residents at the temple in 1978 were not of the greatest significance, bearing in mind the prosecution did not suggest anyone witnessed these events. We accept, however, the appellant undoubtedly had a point to make on the location and layout of the bedroom he shared with two other monks, together with the constant flow of visitors. Similarly, given V did not report what had occurred at the time, the lack of the opportunity to investigate the medical records was of less relevance than if, on her account, she had told others what had happened.[40]It follows we are confident that this conviction is safe and the appeal against conviction is dismissed.

Sentence

[41]These were serious incidents of indecent assault. A Buddhist monk in his 30s, holding a significant position of trust, abused a 9-year old girl in a cruel and intimidating way. What occurred was frightening, painful and it has had a profound and long-lasting effect on the victim; she has lived with the consequences of the appellant’s actions for the last 30 years. The appellant gravely abused the considerable trust and confidence that this community placed in him. He frightened V and secured her silence, and to a very real extent he contributed to the late reporting of these offences. Having scared V at the outset, she has later had to deal with a strong sense of shame and embarrassment.[42]The judge accepted the importance of the appellant’s role, particularly at the temples where he has occupied a pivotal position for many years, and at the associated orphanage and the school. He has a large and devoted following and he is held in high esteem. The testimonials are impressive, and many who know him praise the appellant. We have paid careful attention to the number, strength and sheer variety of these references, and the extent to which they reveal undoubted positive sides of his character. He is considered to be a man of great faith and energy. There are a notable number of statements to the effect that he is believed to be trustworthy and to have an appropriate attitude with children.[43]In addition to these points that relate to the appellant’s personal mitigation, the following matters have been advanced in support of this appeal against sentence: i) the sentencing regime relevant to these offences means that he is not entitled to release midway through his sentence; ii) it is alleged that there are indications that the judge was “irritated by the defence” advanced at trial, notwithstanding the judge’s reassurance he was not to be punished on this basis – his defence would not act as an aggravating factor; iii) it is averred that the four year sentence on count 5 should have been made to run concurrently with the other sentences, making a total of four years. iv) the judge erred in imposing a sexual offences prevention order and an order under section 28 Criminal Justice and Courts Service Act 2000, and in any event they should not have been imposed together (it is suggested the result is “harsh, oppressive and unfair”, the relevant statutory pre-conditions were not met and the orders were neither necessary nor proportionate). We address these points shortly hereafter.[44]The appellant was sentenced “on the basis of the legislative provisions […] current [at the date of sentence], and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts” (see R v H [2011] EWCA Crim 2753supra, paragraphs 14, 16 and 47 (a) – expressly referred to by the judge – and section 125 Coroners and Justices Act 2009). The sentencing regime that applies to the appellant is very considerably lower (the maximum is 5 years) than it would have been if the offences had been committed under the legislation that now governs these sexual offences: sexual assault (counts 1 and 2) and assault by penetration (counts 3 and 5). The maximum would now be 14 years for counts 1 and 2, with a sentencing range of 1 – 4 years, and life imprisonment for counts 3 and 5 with a sentencing range of 11 – 17 years. The judge demonstrated in his sentencing remarks that his approach to these issues was entirely appropriate.[45]The potential release date (e.g. midway or two thirds through the sentence) is irrelevant for the purpose of structuring the sentence (see R v Round and others [2010] 2 Cr. App. R. (S) 45; [2009] EWCA Crim 2667, paragraph 49 and R v H supra, paragraph 19).[46]The allegation that the judge increased the sentence or otherwise adopted an incorrect approach to sentencing on the basis of “irritation” is unfounded, and no material has been put before the court to substantiate the suggestion. The judge was entitled to make observations about the appellant’s lack of remorse, as demonstrated by his preparedness to blame others and to allow or to encourage his followers and supporters to believe these allegations had been a “terrible mistake”.[47]As the judge explained in the sentencing remarks, the sexual offences prevention order (which was of indefinite length) prohibited the appellant from, first, “knowingly residing in the same premises as any child under the age of 16; second, engaging in any conversation or activity with a child under the age of 16 unless the parent or other person responsible for the care of that child is present and supervising such a conversation or activity (save for accidental or unsolicited encounters); [a]lso, thirdly, from undertaking any work, whether paid or voluntary, which by its nature is likely to involve contact or communication with a child under the age of 16 years”. In our judgment this order was undoubtedly necessary. As a monk in his early 30s, this appellant committed four serious offences against a 9-year old child in relation to whom he occupied an important position of trust: she and her family were entitled to expect that he would behave scrupulously and with honour. Without these orders, many other children – albeit a significant number of years later – will be at risk of serious sexual harm and in our judgment they need this protection. The fact that he has not offended since 1978 is not a sufficient indication that this risk has dissipated. Although the effect of this order is considerable given the appellant’s religious position and the circumstances of his work at the temples, the orphanage and the school, it is not oppressive (he is still able to fulfil his core vocation) and the terms are proportionate bearing in mind the potential risk to young people of either gender.[48]The judgment of this court in R V C [2012] 1 Cr App R (S) 89; [2011] EWCA Crim 1872 has made it clear that “judges must […] continue to make orders under s. 28 (Criminal Justice and Court Services Act 2000) as well as notifying convicted persons that they will be barred (pursuant to the Safeguarding Vulnerable Groups Act 2006)” (paragraph 42). The appellant had not been barred as of the date of sentence and there was no reason not to impose this mandatory order on the basis it is unlikely that the appellant would commit any further offences against a child (see section 28(5)). Given the nature of these offences it is clearly correct that the appellant should not work with children: the risk he posed when these crimes were committed continues until the present day.[49]Our sole concern relates to the overall length of sentence. These offences occurred a substantial period of time ago; the appellant has not offended since then; he is now in his mid 60s; and he has undoubtedly been a significant and positive figure in other respects in his community. Whilst consecutive sentences were clearly appropriate resulting in a sentence that exceeded the statutory maximum for a single offence, we consider the overall length was somewhat excessive. We do not accept that this should have been a four-year sentence, but instead, bearing in mind the factors set out above, we are prepared to reduce the consecutive sentence on count 5 to three years making a total sentence of 6 years.[50]To that limited extent this appeal is allowed.

Cited in 1 later judgment