RP v R. [2013] EWCA Crim 2331

[2013] EWCA Crim 2331Case No 2012/05678/C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM CROWN COURT CARDIFF
T20120557
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2013
Before
LORD JUSTICE McCOMBEMR JUSTICE MITTINGMR JUSTICE PHILLIPS
Between
RPAppellantREGINARespondent
Mr John E. H. Ryan (instructed by Martyn Prowel Solicitors) for AppellantMs Tracey Lloyd-Nesling (instructed by Appeals Unit Crown Prosecution Service) for RespondentHearing Hearing dates: 29th November 2013JudgmentLord Justice McCombe:
[1]On 12 September 2012 in the Crown Court at Cardiff, the appellant (now aged 54) was convicted of 6 offences of indecent assault, contrary to section 14 of the Sexual Offences Act 1956, and on 5 October 2012 he was sentenced to 6 years and 353 days imprisonment on each count concurrent. His total sentence was, therefore, a little under 7 years' imprisonment. He now appeals against conviction by leave of the SJ on two out of three proposed grounds; he renews his application for leave to appeal on the third ground, after refusal of such leave by the SJ.[2]The complainant in respect of all the charges was the appellant's stepdaughter, R, who was born on [a date in] 1983. The appellant met R's mother, B, in the late 1970s or early 1980s when they were working together. They had a relationship together at that stage but drifted apart and married other people. Those marriages broke down and, in about 1987 when the appellant would have been 28 years old, the relationship between B and the appellant began again. By that stage each had two children. B had two daughters, R (then about 4 years old) and her sister, L (born in 1981, and therefore aged about 6). They had their own son, D, who was born in 1988. They married soon after their son's birth. The appellant became, to all intents and purposes, a father to L and R. The appellant and B separated and divorced in 1997, after about 9 years of marriage, when R would have been 14 years old.[3]In early 2011, R told her mother, B, that the appellant had abused her sexually when the family was together in the 1990s. She was to say that the abuse began when she was about 11 years old. She asked her mother to ensure that the appellant had no further contact with her young niece, her half-brother D's daughter. B reported R's allegations to the police.[4]R was interviewed by the police and the interview was video-recorded. The tape was duly played as R's evidence in chief before the jury. It is not necessary to set out in any detailed manner the content of the evidence so given, since the grounds of appeal relate to three succinct matters not directly related to the underlying facts of the case. A summary of the allegations made by R (taken form the Appellant's skeleton argument on the appeal) will suffice. “6. R said the appellant had touched her vagina and inserted fingers into it. He made her masturbate him on the same occasions. The first occasion she could remember was her birthday – she thought her 9th, but in a later interview amended this to her 11th. The appellant would call her from her bedroom on occasions when B was away from the house and abuse her on the settee in the living room (count 1, the first occasion, and counts 2 and 3, specimen counts for continuing conduct once or twice a month in the same manner.) As R grew up, she had been bought a bicycle for a birthday present. The appellant would take her on lengthy bike rides to her grandparents' home. On one occasion, the pair stopped for a rest in a field at which the appellant abused her in the same way (count 4); when they arrived at the grandparents' home he took advantage of being momentarily left with R to abuse her again (count 5 ) R complained that when the family took a holiday in Menorca, the appellant had followed her to their apartment from the swimming pool and begun to abuse her again. However, her mother B had walked in on the pair and interrupted him. This incident was not indicted for jurisdictional reasons. The final count related to a specific incident when the appellant had arranged to take R to a music exam. He sat at home listening to her practice the instrument and abused her again (count 6).”[5]On 6 September 2012, during the course of the cross-examination of R, by counsel then appearing for the appellant (not Mr Ryan who appeared before us for the appellant on the appeal), she denied that the allegations had been fabricated by her merely because she had heard of a similar complaint which B had told her had been made by R's sister, L. R had accepted, during the cross-examination, that there had been continuing contact over the years between her and the appellant, even after her mother and he had separated. She agreed that, with the exception of the regular incidents of abuse of which she was complaining, the appellant had in many ways been a good father-substitute. She denied, however, in response to a particular question put to her by defence counsel, that she would have discussed with him or involved him in any personal matters of an “intimate” nature. That question had been formulated by counsel in order to achieve a basis for the application which then followed.[6]In the absence of the jury, trial counsel for the appellant sought the judge's sanction to cross-examine R as to the appellant's part in providing emotional succour and financial support for R in respect of a termination of a pregnancy when R was 17 years old, i.e. in about the year 2000. It was to be put to R that the appellant had been involved in family discussions about whether the abortion was the right course to take and had travelled with R and her mother to Warwick for the termination procedure, for which he had paid.[7]It appears that, prior to the trial itself, no notice of this line of proposed cross-examination had been given. The facts of the matter had not been raised either in the appellant's interview with the police, nor at the PCMH, nor in the Defence Case Statement, nor was any formal application made to permit the cross-examination under section 41 of the Youth Justice and Criminal Evidence Act 1999. The absence of any such formal application under section 41 is explained by the fact that counsel was to contend that the section did not apply to the questions that he proposed to ask. A skeleton argument on the issue, however, dated 5 September 2012, had been supplied to prosecution counsel and to the court. In that skeleton argument the relevance of the subject was put in the following way:
“5. As to relevance, it is plain from the foregoing (and from the evidence given by [R]) that she asserts that she regards the Defendant with distaste commensurate with his having sexually abused her. It is, therefore, relevant for the Defence to prove that in the early 2000s she regarded him as a man to whom to turn to in case of emergency; not simply for money, but for support and succour. It would be open to the jury to take the view that this conduct inconsistent with the allegation she now makes; and, given, the intensely personal nature of the episode and its timing, more strikingly inconsistent than adult discussions about houses, cars, and jobs. ”
[8]The submission was made that the proposed questioning did not fall within the terms of section 41 of the 1999 Act. The point was put in these terms:
“7. Is the question forbidden by statute? Pregnancy is usually the result of sexual behaviour. It is, in fact, the understanding of the defendant that this pregnancy was a result of sexual behaviour within the terms of s.41 of the Youth Justice and Criminal Evidence Act 1999. However, the prohibition in s.41 is upon questions being asked about any sexual behaviour of the complainant. The Defence does not seek to ask any question about this witness's sexual behaviour, merely about the end of her pregnancy. This is not the purpose of s.41 -see the analysis at Archbold 8-248 – and the insistence in s.41 (6) on questions relating to specific instances of sexual conduct underline that it is the sexual conduct that must be the focus of the questions. ”
[9]During the course of the defence submissions, the judge made a comment, which by any standard of judicial conduct was highly inappropriate. In effect, the judge was asking counsel what was to be added, by such questions, to R's acceptance that she had had an ongoing relationship with the appellant over the years. The judge was enquiring whether it was to be suggested that the appellant had been present during the procedure itself. We return to the terms in which this enquiry was made when we consider the renewed application for leave to appeal on the third ground.[10]Before the judge, the Crown resisted the application to permit the cross-examination on this subject. Counsel for the Crown, Miss Lloyd-Nesling, who also appeared before us on the appeal, submitted that the proposed cross-examination was caught by section 41. The relevance, in any event, was disputed in view of the Crown's acceptance, in the light of R's own account, that there had been an ongoing relationship between the appellant and R and, it was submitted, these questions would go no further than what had been established to that effect already.[11]The judge ruled against the defence application and refused to permit the questioning proposed. His final conclusion, hopefully without disrespect to him in not quoting more, can be found in the final two paragraphs at pp. 11G – 12C, as follows:
“It seems to me that the question that [counsel] seeks to ask about her being pregnant, about her having a termination, albeit that it includes contact with the defendant, and the assistance as the defendant's instructions are financial to her at that particular time, add absolutely nothing to that which has already been adduced and, in any event, in my judgment, as a totally separate argument and conclusion. In my judgment the questions that [counsel] seeks to ask fall foul of Section 41. They fall foul in particular because it seems to me, that the issue that is belatedly given by way of instructions and raises this legal argument, are questions which are intended to be asked to impugn the credibility of the complainant as a witness. In any event, as I say, in my judgment, the point that [counsel] seeks to make is already well made by all the other avenues he has explored and there would be no unfairness to, no detriment to, the defendant by my ruling, as I do, that these are questions which will not be asked…..”
[12]The trial proceeded. Evidence was given by B and L and by a police officer, ending on the afternoon of Friday, 7 September 2012. Certain non-contentious statements were read. The Crown case was then closed.[13]We interpose now an important feature of the chronology which did not appear immediately during the trial. It seems that, after B had given evidence and the Crown case had been closed, the appellant had a conference with his lawyers and, at about 1530 that afternoon (according to his solicitor's note), the appellant instructed his advisers for the first time that he had had sex with B on at least one occasion in January 2011, i.e. after she had accused him of improper behaviour towards R. It was decided in the conference that the matter would not be raised with the appellant in chief, because of the obvious suggestion of recent fabrication which would arise.[14]On Monday, 10 September 2012, the appellant gave evidence. The sexual encounter between the appellant was not raised in chief. In the course, of cross-examination, however, the appellant was giving evidence of what he said were the continuing relations between himself and B. He went so far as to say, that “I even slept with her”. Counsel for the Crown did not pursue the matter. However, defence counsel was permitted to ask the appellant further questions on the subject in re-examination. The appellant then stated that there had been meetings between B and himself, after the time when she had said she had accused him of improper conduct with R, and that in January 2011 there had been a sexual encounter at his home after they had spent the evening there together.[15]At the conclusion of those questions in re-examination, there was the following exchange between defence counsel and

the judge in the jury's presence:

“[Judge]: No. Thank you. The jury will be aware, no doubt, that none of this particular aspect was put to [B] at all, …. [Counsel]: No. And in those circumstances – and your Honour knows the reason I asked the jury to leave was to say that it is my fault in these circumstances – I could not object if the prosecution were to call her back if they chose to do so so I can put these matters to her.” (Emphasis added).
[16]After certain unrelated procedural discussions between counsel and the judge, the jury withdrew and were released for the evening. There was then a further exchange between defence counsel and

the judge in these terms:

“[Judge]: Is it your fault that this was not put to the witness? It is not, is it? You have given the impression to the jury, with respect, it was an oversight by you. [Counsel]: I did not want the jury to hold it against my client. [Judge]: Even though you did not have instructions on this topic at the time when Mrs J was giving evidence. [Counsel]: That is right. [Judge]: Well in those circumstances, are they not entitled to hold it against him? [Counsel]: Your Honour, in my respectful submission, it is not a matter that they should be considering. [Judge]: Very Well. ” [Judge]: Well in those circumstances, are they not entitled to hold it against him? [Judge]: Very Well. ”

[Judge]: Well in those circumstances, are they not entitled to hold it against him?

[17]In fact, counsel had been instructed on this topic after B had given her evidence and he could not have put the matter to her at that time, but counsel's comment suggested that it was he who, in error, had omitted to put this matter to B. As already mentioned, however, there had been a conscious tactical decision not to raise the matter in the appellant's evidence in chief.[18]On the following morning, shortly after 1000 hours, addressing prosecution counsel, the judge returned to what defence counsel had said on the previous day. He said that the defence, “[Counsel] gave the jury the impression that he had forgotten to put it, whereas in fact the truth as he acknowledged to me was that his client had never given him those instructions and they arose afresh.” Prosecution counsel said that it was understood what happened when defending and this sort of situation arose.[19]The judge's reaction was, “[Judge]: You do not lie to the jury as counsel. If your client comes out with something for the first time in evidence it is part of the criminal justice system, from which a jury could infer that a defendant is making something up…. MISS LLOYD NESLING : Yes. [Judge]: …..because it has never previously been put. I am very concerned that [counsel] has thought to cover this for his client in the way that he has. Not only concerned but surprised.” The judge said that he was concerned that the jury might have been deliberately misled by counsel. He asked defence counsel directly whether he would acknowledge in front of the jury that he had misled them. Counsel said that he would need time to consider the point. The judge replied:
“[Judge]: Yes. I would not have thought it needed that much time; it is pretty obvious what I think you should do. I have two alternatives in mind: One is that you admit that you had not omitted to put that matter because you have never heard about it before, or in the alternative I will discharge the jury, consider ordering you to pay the costs, and we start this case all over again. Those are the choices. [Counsel]: I will need quite some time this morning to consider, both with my client, and, of course, to take professional advice about it, so if you will accord me that I would be very grateful.”
[20]Counsel indicated that he wanted to check when precisely he had received the instructions and needed to ask his client whether he was content that that should be revealed in court. Further, he said he might need to take advice from the Bar Council. The judge, it seems somewhat reluctantly, granted counsel time to consider his position and rose from court for that purpose at 1011 hours.[21]The court reconvened shortly after 1100 hours. After informing the judge as to what had been done during the adjournment to check the facts and to advise the appellant, defence counsel informed the judge as follows:
“…..having taken instructions from my client I am instructed to endeavour to make amends in this way: First, to confirm that at the time I cross-examined [B], that although I had a 62-page Proof of Evidence which had been taken by my instructing solicitor, it was not part of that Proof of Evidence that there had been continuing sexual relations between the two. It is a matter of fact that RP had not been asked that question. That question was first asked of him, according to my instructing solicitor's note, at about 15.30 last Friday, that is, before he went into the witness box. I did not deal with it in chief; it did not seem to me to be relevant to the case. It arose in cross-examination, I would not suggest directly as a result of the question asked, but it arose in cross-examination, and thereafter I dealt with it in the way that the jury has heard. Now I hope that sets out the chronology sufficiently to avoid or to repair anything that I have done.”
The judge thanked counsel for the explanation and invited him to say something appropriate to the jury to clarify the position. Counsel agreed, and we presume that was done, although we have no transcript of what was actually said.[22]Out of that course of events, the two grounds of appeal, for which leave has been granted, are now advanced in support of the submission that the resultant conviction of the appellant is unsafe. First, it is argued that the judge's ruling, refusing permission to question R about the appellant's involvement in her abortion was wrong and that, accordingly, the defence were denied the opportunity of putting relevant questions to her. Secondly, it is submitted that the judge was wrong in requiring the appellant to disclose the timing of his instructions to the jury or to face the discharge of the jury and a new trial.[23]We turn to the first point.[24]It seems to us that the initial enquiry must be as to the relevance of the proposed questions relating to the abortion. Relevance to an issue in the case is always a precondition to the admissibility of any evidence, whatever more technical rules may intervene thereafter with regard to particular types of evidence. It seems to us that the evidence was, on the face of it relevant, largely for the reasons advanced by counsel to the trial judge. Understandably, there would have been an anxiety to spare a witness from distressing questioning if avoidable, but that does not detract from the strict question of the admissibility of what it is sought to put, if the evidence is truly relevant.[25]In our judgment, this proposed questioning was relevant to the issue before the jury. It did tend to detract from her account that she viewed the appellant with distaste, because of his improper conduct, notwithstanding her continued dealings with him on less personal and intimate matters. This was broadly the basis on which counsel put the matter to the judge.[26]If the evidence would have been relevant (as we think it would have been), the next question is whether it was evidence to which section 41 of the 1999 Act applied.[27]The section is in these terms: “(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court(a) no evidence may be adduced, and(b) no question may be asked in cross-examination, by or on behalf of may accused at the trail, about any sexual behaviour of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case maybe ) the court on any relevant issue in the case. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either (a) that issue is not an issue of consent…. (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. (5) [not relevant] (6)For the purposes of subsections (3) ... the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)”. (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case maybe ) the court on any relevant issue in the case. (a) that issue is not an issue of consent….[28]Section 42(1)(c) provides:
“(1) In section 41 (c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused….” (c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused….”
[29]Were the proposed questions “about any sexual behaviour of the complainant”?[30]We invited the citation of authority to assist in our understanding of the meaning of the phrase in question in section 41(1), in the context of matters of the present sort. It is no disrespect to counsel to say that they were unable to direct us to any specific test, identified in the authorities, of whether evidence or questions are “about any sexual behaviour of the complainant”. Mr Ryan for the appellant referred us to Ben-Rejab [2011] EWCA Crim 1136, in which participation in an internet sexual quiz or questionnaire was held to fall within the section. In that case, Pitchford LJ said, “35. It will be noted that “sexual behaviour or experience” need not involve any other person. The expression is plainly wide enough, in our view, to embrace an activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection. That being the case, the question for the court is whether an indulgence by answering questions in a sexually explicit quiz is “any sexual behaviour” within the meaning of the section. In our judgment it is. What motive can there have been when engaging in the activity of answering sexually explicit questions unless it was to obtain sexual pleasure from it? It was certainly the purpose for which the judge concluded the defence sought to ask these questions. We agree with him. The questions had no purpose, unless the jury was being invited to conclude that C was the sort of person who would engage in consensual foursome sexual activity and is not the sort of person who had recently been the victim of rape.”[31]That case is cited in the latest edition of Blackstone's Criminal Practice (2014) where reference is made to the definition contained in section 42(1)(c) of the Act, cited above, and then this appears:
“It is submitted that this very wide definition will cover verbal and not merely physical advances of a sexual nature (see, e.g., Hinds [1979] Crim LR 111 and Viola [1982] 3 All ER 73, both decisions under the Sexual Offences (Amendments Act 1976). The phrases 'sexual behaviour' and 'other sexual experience' seem to be referring to acts or events of a sexual character, as opposed to the existence of a relationship, acquaintanceship or familiarity (per Lord Clyde in A (no.2) at [128]). The phrases are wide enough to embrace the viewing of pornography or sexually-charged messaging over a live internet connection, and it will also amount to 'sexual behaviour' to answer questions in a sexually explicit quiz (Ben-Rejab [2012] 1 WLR 2364). 'Sexual behaviour' it has been said, is a matter of impression and common sense (Mukadi [2003] EWCA Crim 3765). However, whether either behaviour or experience is 'sexual' does not depend upon the perception of the complainant, because that would result in many vulnerable people, including children and those with learning difficulties, losing the protection of s.41.”
[32]Mr Ryan also referred us to paragraph 76 in the speech of Lord Hope of Craighead in R v A (No. 2) [2001] 2 Cr App R 351 in which his Lordship alluded to the twin evils lying at the heart of the mischief forming the background to the enactment of section 41, namely that by reason of sexual behaviour, the complainant(a) was more likely to have consented to the sexual conduct which was in issue in the trial or(b) was an unreliable or less credible witness, put graphically by McLachlin J in the Supreme Court of Canada as the twin myths that “unchaste women were more likely to consent to intercourse and in any event were less worthy of belief” – Seeboyer [1991] 2 SCR 577, 604 and 630.[33]We acknowledge the potential width of the definition. However, it does not seem to us that to ask a person about whether someone has assisted her in and about the obtaining of a lawful abortion can be said to be a question “about” sexual behaviour. Self-evidently, it is not. The fact that an abortion cannot result unless there has been antecedent sexual behaviour does not make the question about the fact of the abortion a question “about” any sexual behaviour. As my Lord, Mitting J asked of counsel in argument, would a question asked of a mother whether she had been assisted by X during a pregnancy, when the foetus was giving signs of distress, be a question about sexual behaviour. The answer, we think, must be surely not. We recognise that a question about an abortion might in some cases be a way of asking about a person's sexual history, in which case it would be a question “about” sexual behaviour, but we do not see that a question asked of a formerly pregnant woman about events surrounding a termination of pregnancy would in itself amount to a question about sexual behaviour.[34]It follows that we reject the submission of Miss Lloyd-Nesling, in the course of her succinct and helpful argument, that where a question asked is on a subject which necessarily leads to the fact or inference of the fact that there has been some sexual behaviour in the past that is itself a question “about…sexual behaviour”.[35]Following the hearing, my Lord, Phillips J, drew our attention to the case of K& anor. [2008] EWCA Crim 434. The charges were of indecent assault by the appellants committed upon members of their family. In the case of one of the appellants, his counsel at trial sought to cross examine one complainant about an abortion she had had. It was proposed to put to this complainant, that long after the dates of the alleged offences, she had become pregnant and there was an argument about whether she should have an abortion. It was to be put that she had specifically asked this appellant to take her to the clinic. She had already accepted in cross-examination that she had seen this appellant after the alleged abuse had ended and that she had felt “fine” around him: see the judgment of the court given by Pill LJ, at paragraph 68.[36]The trial judge had ruled against the defence in their application to ask these questions. He held that the questions were only calculated to embarrass and humiliate the complainant unnecessarily.[37]On the appeal, the question of the applicability of section 41 to the proposed questions was squarely raised. However, the court did not find it necessary to decide the point. Its conclusion on this issue was:
“73. In our judgment, the judge was entitled to exclude the proposed cross-examination. Whether true or not, it was likely to cause considerable distress for SC. Its very limited relevance does not justify its admission in circumstances in which other contacts between defendant and complainant had been proved. The claimed significance of the questions, to demonstrate that the witness had visited an abortion clinic, underlines the overall fairness of excluding it. Unlike R vF [2005] 1 WLR 2848, this was not a case in which sexual relations between the defendant and the complainant had resumed when the complainant was an adult. That might well throw light on the conduct in earlier years. Evidence that, some time after the alleged abuse, a complainant was prepared to ask her alleged abuser to accompany him to an abortion clinic, barely supports a case that she was prepared to lie, and join in 2005 or 2006 a conspiracy to lie, about events many years before. We do not find it necessary to rule whether Section 41 could apply. Even if it does not, the judge was entitled, without unfairness to the appellant, to exclude it. It could have added to the evidence already given of post-abuse contacts, but there is no real possibility that it would have affected the jury's verdict. Indeed, if it was established that the appellant was the member of the family to whom SC turned to accompany her to the abortion clinic, the evidence may have been distinctly double-edged in relation to her view of him and his qualities.”
[38]We think it right to address the question of the applicability of section 41 in this case. In our judgment, for the reason already given, the questions proposed by the defence here were not questions “about any sexual behaviour” of R and were not, therefore, caught by section 41 at all. We do not see, therefore, that the line of questioning proposed was prohibited by this provision or any other rule of law.[39]For the present, we are prepared to assume that the judge did prevent the putting to R of potentially permissible and relevant questions. We will return to the consequences, if any, below.[40]We turn to the second ground of appeal.[41]Under this head, Mr Ryan for the appellant submits, with proper respect, that the judge made some ill-judged comments. It was argued that the judge's comment that the question of the recent sexual relationship had not been put to B was unfair; it was made just after the appellant's evidence had concluded and was seriously prejudicial to the appellant's case, in which credibility was the essential issue. Further, it is submitted that the judge then wrongly put trial counsel in an invidious position in which he would have either to disclose potentially privileged information as to the timing of his late instructions, or face the discharge of the jury and a potentially liability to pay wasted costs.[42]Mr Ryan submitted that the proper course for the judge to have followed was to discharge the jury, if he felt concerned about counsel's unfortunate remark and its consequences, rather than to take a course that had the potential to put counsel under unjustified pressure and to undermine counsel's standing with his client.[43]A debate was conducted before us as to whether the timing of a client's instruction to his legal advisers is or is not privileged: we were referred to Wilmot (1989) 89 Cr App R 341, 352, in which it was said that it was not privileged. Mr Ryan submitted that Glidewell LJ's view, there expressed, was obiter dictum and that whether such a fact was privileged depended on the particular facts of each case. Mr Ryan submitted that the preservation of privilege was an important principle of law which is of paramount importance and should not be lightly endangered: see Seaton [2010] EWCA Crim 1980, per Hughes LJ (as he then was), at paragraph 43.[44]We do not consider that it is necessary to decide whether the communication in issue between the appellant and his advisers in this case was or was not privileged. We do not consider that the exchanges between the judge and counsel, robust as they may have been, or in the steps taken as a consequence, contained anything that impaired the fairness of the trial. The important question for us is what occurred before the jury and whether anything there calls into question the fairness of the proceedings generally. We do not consider that there was anything said or done before the jury that was calculated unfairly to prejudice the appellant and the case being put on his behalf to the jury.[45]The judge's comment that the fact of a recent sexual relationship had not been put to B was no more than accurate. On any footing, it was a matter upon which both Crown and judge would be able to comment to the jury at some stage of the proceedings thereafter. The fact must also have been very obvious to the jury. Moreover, what had occurred was going to necessitate the further questioning of the appellant and the recalling of B. Both these features only arose because the appellant had not raised this matter earlier. The possibility of recent fabrication was a glaring one.[46]When the judge made his comment, it provoked the unfortunate response by counsel which the judge rightly considered had the potential to mislead the jury. Accordingly, he discussed the matter with counsel in the jury's absence. Subsequently, all that happened in the jury's presence thereafter was that defence counsel took steps to correct the brief misleading comment that he had made. We do not consider that that was in any way calculated to impair the fairness of the trial. All that happened was that steps were taken to correct something misleading that had been said to the jury.[47]In his summing-up, the judge simply recited without comment the appellant's evidence as to the recent sexual encounter with B and her robust denial of it when she was re-called.[48]Accordingly, this second ground of appeal is rejected.[49]We turn to the third and final ground. The Single Judge refused leave to appeal on this ground, but the application for leave to appeal on the basis of it has been renewed by Mr Ryan.[50]The point here relates to the handling in the summing-up of the evidence of L and some evidence given of an allegation by B that the appellant might have wrongly taken £4000 from her father before his death.[51]The first of these matters arises in this way. B gave evidence that, in about April 1993 (L being about 11 or 12), L had told her one morning that on the night before that the appellant had got into her bunk bed and had put his hand up her nightdress and had touched her chest. The appellant had denied this. He said that he had arrived home and had found R in bed with her mother and had gone into the girls' room, expecting L to be in the top bunk, but found her in the bottom bunk where R usually slept. He got into that bunk with L, but there had been no improper touching. L gave evidence saying that she recalled an occasion when the appellant had got into the lower bunk with her, but she had no recollection of any improper touching or molestation. B's evidence was that this was the first occasion upon which she had thought that things were awry and it had led to the appellant being excluded from the family home until the Christmas of 1993, a period of about 8 months.[52]We are told that counsel raised with the judge the question of what should be said about this incident, particularly in view of L's own evidence that she had no recollection of any sort of abuse having occurred at that time. We are told that it was understood that the jury would be directed that this incident was not to be used by them as any evidence of propensity to sexual misbehaviour on the appellant's part, but was merely evidence of the reason for B's reaction much later to finding the appellant and R together in the flat in Menorca. We are also told that, at a break in the summing up, counsel raised the point again with the judge, but that when the summing up was resumed the judge did no more than relate the evidence that L had given and state the prosecution and defence cases in relation to that evidence. He did remind the jury that the defence were saying that L's evidence showed that B had manipulated the matter to “re-write history” and that R had “jumped upon a band wagon”.[53]With regard to the second matter, the complaint is that the judge summarised the evidence that B had given about money given to her by the appellant (some £4000) at the time of her father's death; she had said that while the money had seemed initially to be a gift, she had been shown a document by her brother suggesting that the money was owed to her and the appellant had been told that if the document was not signed they would go to the police. It is said that the judge failed to remind the jury that the appellant's explanation was that he had received the money because he had been owed it as a result of being a guarantor for some debt owed by the father. This explanation had been put to, and had been accepted by, B. Instead of rehearsing this or explaining that the incident was irrelevant to the charges faced by the appellant, the judge had merely said that the matter was not one that the jury really had to resolve.[54]Mr Ryan submitted that, on their own, these two matters would not give rise to a contention that the conviction was unsafe, but that such was the effect in this case, when these points were added to the other matters raised, which we have considered above. It is argued that, cumulatively i) grounds 1 and 2; ii) these two matters raised as ground 3; and iii) the “hostility” said to have been displayed by the judge towards the appellant (manifested in particular by the vulgar manner in which the judge had referred to the question of whether it was to be suggested that the appellant had been present when R's abortion had been performed), all add up to a situation in which this court should regard the trial as unfair and the conviction unsafe. We were referred to Cordingley [2007] EWCA Crim 2174.[55]We draw these threads together. As we have said, we consider that ground (1) has substance: the judge was wrong, in our view, to conclude that the proposed questions fell foul of section 41. We reject ground (2). Ground (3) we have summarised immediately above. It is accepted that it would not succeed except as a supporting factor for the other ground or grounds.[56]The only ground of appeal on which we have found that the learned Judge fell into error is on ground (1). We have to observe, however, that whether or not counsel should have been allowed to ask the questions (and we think he should have been so allowed) we take a very similar view as to the likely impact of the questions on the jury's conclusions as this court did to much the same question in K & anor (supra), as stated in paragraph 74 of the judgment quoted above. As this judge remarked, counsel for the defence at trial had made considerable headway in cross-examination with R to establish her ongoing relationship with the appellant after the separation of her mother from him and after abuse had ceased. This laid ground for the submission to the jury that this was an inconsistency with the past abusive behaviour that she was alleging. The fact of the presence of the appellant at a family discussion about an abortion, a drive to the clinic where the abortion was to be performed with R and with B and his payment for the procedure, could not have added significantly to the point.[57]We do not find, therefore, that the matters canvassed under ground (3) provide material to lead to a successful appeal.[58]We do not propose to dwell upon the question of the alleged hostility of the judge towards the appellant. The occasions to which our attention has been drawn arose in the absence of the jury. We do not consider that they were such as to amount to overall unfairness or an absence of due regard for the presumption of innocence. There was nothing that we have seen that unfairly prejudiced the appellant in the eyes of the jury. The situation was far from that which was considered by this court in Cordingley.[59]There is a final point touching upon the safety of the convictions which was put to us by Miss Lloyd-Nesling for the Crown.[60]There was before the jury a schedule of text messages passing between the appellant and B between mid-day and late in the afternoon of 31 December 2011. The schedule sets out the contents of the messages in full. In them, B makes the clearest possible accusations of sexual abuse perpetrated by the appellant upon her two daughters. The appellant's responses do not once include an outright denial of any of those occasions. The appellant said in evidence that he did not deny what was being said in order “to shut B up”. As summed-up by the judge the appellant said, “It wasn't an argument worth having to deny the allegation that she was making”.[61]In our judgment, there is force in the submission made by Miss Lloyd-Nesling on this point. We are satisfied that the convictions are safe. The renewed application to appeal on ground (3) is refused and the appeal, on grounds(1) and(2) is dismissed.