Neill, R v [2013] EWCA Crim 2617

No: 201300056/C1[2013] EWCA Crim 2617
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17th December 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE CRANSTON
MRS JUSTICE LANG DBE
Between
R E G I N ACrownv
Between
JASON NEILL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Tully appeared for AppellantMr J Taylor appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

Criminal

[1]trials held to determine the guilt or innocence of defendants depend upon two essential features: firstly, on the skill of the independent advocates arguing them, on the one side, and, on the other, and secondly, on the judge fairly and clearly leaving to the jury the issues which they are called upon to determine.[2]This case amply demonstrates the skill, on the one hand, of Mr Tully for the defence and, on the other hand, Mr Taylor for the prosecution, in properly arguing, the acutely difficult issues which had to be determined in resolving the question whether a young man of 38, with no previous convictions, had indecently sexually assaulted the daughter of his good friend and neighbour in Bristol.[3]What this case unfortunately also demonstrates is how close this judge, His Honour Judge Horton, in his failure properly to direct and sum-up the case to the jury came in upsetting the due process of the determination of the guilt or innocence of the defendant (now the appellant).[4]This appeal has turned upon the recitation by the judge of far too much evidence running the danger of deflecting the jury from proper consideration of the clear issues that it had to resolve. Due to the skill of counsel on both sides, this case, which involved a number of witnesses concerning allegations made by a young 13 year old, lasted only some two-and-a-half days.[5]Quite unnecessarily, and we would add wrongly, the judge then recited large portions of the evidence over a period which occupied two days. In length it was some four-and-a-half hours but it went on from one day to the other. He would have been far better occupying his time leaving the court and preparing a proper summary of the evidence, summarising the evidence and identifying the issues which had to be resolved. His failure to do so has come close to requiring this trial to be held again. We have had to very carefully consider whether the serious inadequacies in the summing-up required us to say that the verdicts were unsafe. We hope therefore that this judge will be prepared to accept our comments and not, in future treat a jury to a lengthy and unedited recital of the evidence.[6]There were four counts alleged against this 38-year-old married man. It was alleged that when a young 13-year-old daughter of the neighbour had come to his house, as she frequently did, because the families were on very good terms, he had sexually abused her in an escalating manner described quite by the judge but not by the prosecution as "grooming", over the space of 6 months, between June 2011 and January 2012. She was vague as to the length of time these events took place making up the four specimen counts, as to the dates but allegations were clear that it had started, the subject matter of count 1, when he had stroked her hand or arm, had moved on, to the second specimen count, when he had stroked her leg, to an occasion when, on a limited number of occasions, he had held her from behind by the hips and pressed his private parts against her from behind, so that she could feel him. Finally, (the subject matter of the fourth count) there was an occasion when she said he had been sitting beside her on the 9th January 2012, with his young 10-year-old son on his lap and had stroked her leg, putting his hand underneath her comparatively short skirt, but not touching her underwear.[7]The allegations described on a video recorded interview were played to the jury and she was cross-examined, not just as to the vagueness with which she gave her evidence but in particular as to a number of texts and Twitters that she had sent at the time she said she was being assaulted on the afternoon of 9th January 2012, and the time when apparently she had complained to her mother, at the end of the week on Friday, when she was very distressed. The defence said that that behaviour was wholly inconsistent with the apparent distress that she was showing, leading to the suggestion that they were entitled to make, that she was playacting and that the allegations were false.[8]The matter had come to light when she complained to a number of her friends and had apparently seemed upset when doing so. In particular, when at the end of that week, on 13th January 2012, she had spoken to a teacher, Louise Reynolds, who is one of those teachers responsible for talking to children about such incidents. She had been particularly distressed because she felt the consequences of her complaining were going to upset the close relationship that there had undoubtedly been between the families living as they were alongside. She had been in the habit of going to the house next door, where she said the sexual assaults took place, where she had felt like a member of that family. Her mother also described the relationship between the two families as idyllic.[9]There was significant evidence following the complaint. Once the child's mother had heard the complaint she confronted the defendant with it, saying that he would never touch her daughter again. It was the defendant's description of that allegation that was particularly significant, so the prosecution says. He said that that the matter challenged him and said that he had touched her daughter's leg, but in a way that was "non intimate". The mother denied having used those somewhat curious words.[10]But the defendant, as soon as the allegation was made at the end of the week, told his wife about it, and she too recorded that her husband, the defendant, was saying that he was being accused of touching the girl's leg but in "a non intimate way". The prosecution said that was a most curious account given by the defendant, supported by his wife, in circumstances where he denied that anything untoward, not even an accidental touching had taken place. Why then should he pick on the words that he had been accused of touching the girl's leg in a non intimate way, an echo of the very events of which she was complaining, since she did not suggest that this appellant had placed his hand on her underwear or anywhere in the region of her private parts.[11]We have to emphasise, as is clear from the facts of this case, that there were substantial points to be made on behalf of the defence. In particular, the events of 9th January 2012 are one of the few events on which particularity could be challenged. As anybody defending in these cases knows, it is extremely difficult to find purchase in the evidence successfully to cross-examine when a series of undated, unspecific allegations are made by a young girl who is perhaps inevitably vague in the complaints that she makes. But on 9th January there could be specificity, because it was alleged he had his 10-year-old on his lap whilst he stroked the girl next to him. His wife was either in the room or very close by and although unsighted perhaps at the moment of the alleged assault, she could have seen it at any moment. So he was able to deploy the forceful argument that he could not possibly have risked everything being found out with his son on his lap and with his wife close by or there or thereabouts.[12]Quite apart from the that point he had powerful arguments as to whether he would really, as a man of good character, upset everything in the relationship between two neighbours and, as to the behaviour of this young girl on what is described as the social media at the time of making these complaints. These were all undoubtedly strong arguments, arguments on which Mr Tully relied in making his submissions to the jury.[13]Having made those submissions, as we have said, the judge then launched into a wholly unnecessary, over-long description of the evidence that had been given. It is not suggested that his recitation of the evidence was inaccurate but it is said that it was quite unnecessary. We agree. This sort of summing-up we had hoped was a thing of the past. This court has said over and over again, that the purpose of a summing-up is to direct the jury, assist it in reaching a fair resolution of the issues. A long recitation of the evidence from one witness to the next has the opposite effect. An example that we can give in this case is of the over-long recitation of the complaints as described by this girl's friend. It was quite unnecessary to refer to those in any detail, having regard to the direction that the judge did give as to the need for great care being taken as to whether they supported the prosecution case or not. But the judge spent some 10 pages of transcript going through them, describing what the girls had said in their interviews.[14]Quite apart from the wholly unnecessary length of this summing-up and the undiluted and uncontrolled recitation of the evidence, there were a number of passages where Mr Tully rightly accuses the judge of using emotive language. From about page 13 to about page 16, all of which needs to be read to get a full favour, the judge gave a wrongly emotive account from the prosecution point of view:
"You see the Crown case is here that the Defendant in effects started, I use the word grooming. Now I will explain that in a moment. Grooming [E] from the summer of 2011. The Crown are saying that a person who sexually assaults a young child can commence by touching apparently innocent parts of a body but whilst two of them are engaged upon innocent pass time, in this case the computer. It is plainly you may think a child's mind otherwise occupied, the touching to start with is not in an overtly sexual place."
So he goes on in what can only be described as putting forcefully the case on behalf of the Crown. He continued:
"It is, the Crown say, in effect an acclimatisation of a victim and to quote them from their opening to you, 'to push the boundaries' as the Crown put it, 'whilst trust and friendship continue.'"
He then continues:
"Would this young girl who is making on the defence account, a deliberately manipulative, lying allegation, commenced by a concerned complaint to [B] in June or July 2011? She would then have to be devious enough to make the complaint in January and further to allege the event was not whilst she was alone with the Defendant when no-one else could say what has happened, but actually allege as she does and has throughout, when she was there with other people around and indeed [H] being on the Defendant's lap. The Crown suggests, it is a matter for you if you are going to making this allegation against that background, why would you not make more serious and you may think the question that [A] asked on this was important?"
So it goes on for another page.[15]We think that it was necessary to summarise the case for the prosecution and then the case for the defence, if the judge was not then going to go through a lengthy recital of the evidence, over the space of one day. If he was going to do that then to embark on what was described as a speech for the prosecution over the space of some 10 to 15 pages of the beginning was, in our view, wrong and unnecessary.[16]Against that, we should point out that there was at least a short page at this point of the summing-up summarising the case for the defence. During the course of it, in three sentences, the judge does make clear important points on the behalf of the defence. He said:
"The defence in effect say would a married man of good character with children sexually assault this 13 year old under the very noses of his wife and children indeed even with his own son on his lap? If she was being abused, why would she continue to come round so often and go to the very place where she knows he will abuse her? Would she, even though young, have been going on Twitter and if you find it was her, to vote in I think Star quiz, so soon after she was upset about what happened?"
So he did in short form summarise the case for the defence. He then, after that opening of about 10 pages, as, we have pointed out, run through the case for the prosecution and run through the complaints that were made. He reminded the jury, having directed them that what the mother said about the truth of the girl was not evidence in support of the prosecution unnecessarily reminded them of those passages when the girls' mother spoke of how she had found her daughter to be truthful. That detracted from the correct direction that they could not use that as support for the prosecution. On the next day he did run in great detail through the evidence given by the defendant, by his wife and by other witnesses. So he did balance the unnecessarily long recitation of the evidence given by the Crown by a similarly lengthy and unnecessary lengthy running through of the evidence of the defence.[17]Having criticised the judge in the way we have for the way he chose to direct the jury, at the end we have to ask ourselves whether the verdicts of guilty that the jury returned after retiring for the space of nearly 2 days and over a weekend were unsafe. This court does not sit to mark summings-up according to their excellence or otherwise but has to direct itself as to whether the effect of this summing-up was to render these verdicts unsafe. It was a finely balanced case and it is a shame that time was not taken in considering how the issues could properly be left to the jury without the unnecessary recitation of this evidence. If we had doubts on the basis that so long a recitation of the evidence might have deflected the jury from a fair consideration of the issues with which they were faced we would unhesitatingly have allowed this appeal.[18]But we do not. The issues were clear. Although there was a stark conflict between the evidence given, on the one hand, on behalf of prosecution and that by the defence, the jury can have been in no doubt but that they had to be sure that the girl was telling the truth despite the curious circumstances, particularly of 9th January. They had to focus upon the accusation which the appellant said the mother of the child had made in the curious terminology that he said she had used and consider whether, if he was not telling the truth about it, how he knew that the allegations were that he had touched her leg in a non intimate way.[19]This was the very stuff of those matters that we call upon a jury to decide. We cannot believe that the defects in the summing-up that we have underlined can have deflected the jury from a proper and fair consideration of those issues.[20]Though we fervently hope that this sort of summing-up will not be given in the future, we are unable to say that the verdicts reached by the jury on 3rd December 2012 at Bristol Crown Court were unsafe. There were four convictions and we dismiss the appeal against those convictions.[21]There is no question about the sentence, which was given some days later, of a suspended sentence. So for those reasons this appeal is dismissed.[22]MR TULLY: I think it is inherent in my Lord's comment when giving your judgment that it is a case which was covered by the 1992 Sexual Offences Act.

LORD JUSTICE MOSES: I shall make that order and renew it. We are most grateful to both counsel for the assistance given in this case.

Cited in 1 later judgment