Marshall, R. v [2014] EWCA Crim 1182

[2014] EWCA Crim 1182Case No 201301533 C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 9 April 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BEATSON
MR JUSTICE HOLROYDE
MRS JUSTICE CARR DBE
Between
R E G I N ACrownv
Between
RICHARD MARSHALL
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 G Parsons appeared for AppellantMr S Mallett appeared for Crown
J U D G M E N T

LORD JUSTICE BEATSON:

[1]On 22 February 2013, following a trial in the Crown Court at Teesside before HHJ Moorhouse and a jury, the appellant (now aged 54) was convicted of 14 sexual offences against four young complainants. On 25 March 2013, he was sentenced by HHJ Moorhouse to a total sentence of 14 years' imprisonment. A sexual offences prevention order was made and the appellant was required to comply with the notification provisions of Part 2 of the Sexual Offences Act 2003 indefinitely.[2]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case: no matter relating to any of the victims shall be included in any publication if it is likely to lead members of the public to identify them as a victim of a sexual offence, and in this judgment we identify the victims by their initials.[3]The total sentence of 14 years' imprisonment was arrived at as follows: counts 1, 3 and 4, which related to CR, were of indecent assault on a male, contrary to section 15(1) of the Sexual Offences Act 1956. The appellant was sentenced to 12 months' imprisonment on each count. Count 3 was consecutive to count 1, which itself was consecutive to count 6, and count 4 was consecutive to count 1. Count 2, (also related to CR) was of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. It was a specimen count. The appellant was sentenced to 6 months' imprisonment concurrent on this count. On count 5, indecent assault on CT, contrary to section 15(1) of the Sexual Offences Act, the appellant was sentenced to 12 months' imprisonment to be consecutive to count 1. On count 6, indecency with IR, contrary to section 1(1) of the Indecency with Children Act 1960, he was sentenced to 12 months' imprisonment also consecutive to count 1.[4]Counts 7 to 14 were offences of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 (count 7) and buggery, contrary to section 12 of the Sexual Offences Act 1956 involving PW. On count 7 the appellant was sentenced to 12 months' imprisonment to be consecutive to his sentence on count 6. He was sentenced to 6 months' imprisonment on counts 8 and 9 (the two other indecency counts) the sentences to be concurrent to count 6. He was sentenced to 4 years' imprisonment on count 10 (the first of the buggery convictions) the sentence to be consecutive to count 6. He was sentenced to 4 years' imprisonment on counts 11, 13 and 14 (three of the four other offences of buggery) those sentences to be concurrent. On count 12 he was sentenced to 5 years' imprisonment to be served consecutively.[5]He appeals against conviction and sentence by leave of the single judge. The facts can be summarised as follows. The charges concerning CR, IR and CT relate to a period between January 1977 and December 1978 when they were aged between 5 and 8. Those concerning PW relate to a period between April 1977 and March 1980 when he was aged between 14 and 16 and the appellant was about 18. The three younger complainants all spoke of the appellant pulling down their trousers before removing his own trousers and masturbating.[6]CR stated the abuse had first occurred in the garden shed and after pulling CR's trousers and his own trousers down the appellant began to masturbate. He asked CR to put one hand around his neck and masturbate him with the other and had touched his thigh. He stated this conduct occurred on several occasions, including in a toilet at a local "banger" racing track, and on one occasion the appellant had also touched his genitals.[7]CR did not tell anyone of these occurrences, but in 2002 he saw the appellant and they began to have altercations in which he would call the appellant a "paedophile". In 2002 he was cautioned for harassing the appellant, and in 2011 a restraining order was made against him as a result of another incident with the appellant. The appellant believed that CR was behind the allegations and had made them because he believed that the appellant had reported him to the police for drug dealing, claiming to have witnessed CR and IR in what appeared to be a drugs deal in a car park near Hull docks. The appellant stated that he had also reported CR to the Borough Council for selling cocaine in the village pretending to be a customs officer. He maintained that after that time CR had a grudge against him, had tried to run him over, had called him a "grass" and a "nonce", accused him of interfering with his business and told him to leave the village.[8]As Mr Parsons indicated in his submissions, an essential plank of the defence case was that there was a conspiracy involving CR, who had this grudge against him. At the trial NF, a friend of CR's, gave evidence that CR had told him that the appellant had sexually abused him. PC Richardson stated that he had spoken to CR some 10 years ago when the harassment matter was being investigated, and that CR said he hated the appellant because he had sexually abused him and his friends when they were children. PC Richardson said that CR had been tearful and shaking when recounting this, but at that stage he said he did not wish to proceed with the complaint.[9]The second complainant, CT, was the appellant's cousin. His evidence was that he used to go to the appellant's house to play and that on one occasion he had been alone with the appellant in the shed when the appellant pulled his trousers down, pulled his own trousers down and masturbated and ejaculated. The third complainant, IR, stated that the appellant had encouraged him to go into the pigeon loft at his house with the appellant's younger brother and had pulled his trousers down and began to masturbate and encouraged IR and his brother to do so.[10]The appellant denied this and stated that his father kept the key to the pigeon loft. His brother said that their father kept the key to the pigeon loft on his person at all times, could not recall the appellant taking any boys to the bedroom, and denied masturbating in front of the appellant with IR. Another witness for the defence, MG, said that he had grown up in the village, but had never heard anything about the appellant having sex with boys and felt sure that he would have heard of this had it happened.[11]The last complainant, PW, stated that the appellant had sexually abused him on six occasions when he was aged between 13 and 16. The first time was in a toilet. When he left the cubicle the appellant was masturbating and said to him, "Have a wank" and, "Can I bum you?", but PW refused. This was the subject of count 7. Counts 8 and 9 related to further occasions when they were in toilets and an outhouse when the appellant started masturbating. Both had masturbated in the outhouse. PW said the appellant constantly asked him whether he could do things to him and there came a time on another occasion when they were both masturbating and PW had agreed to let the appellant bugger him. When the appellant did so it was extremely painful and the appellant restrained PW with his arm when he tried to pull away.[12]There were further incidents of buggery, one of which, reflected in count 12 (PW), appears to have been motivated by fear that the appellant had, or would, tell other people what had happened. When sentencing the judge stated that this was perhaps more serious offending because of that. On that occasion the appellant ejaculated inside PW.[13]MT, a friend of PW's, gave evidence and recalled an occasion when he visited PW who was visibly upset and told MT that something of a sexual nature had happened with the appellant. The appellant denied all the allegations and stated that he did not live in the village of Hunmanby at the time, that CR, CT and IR were involved in criminal enterprises of which CR was the main man, and that everybody knew about that but the police turned a blind eye to it. He had not stated in interview that he had seen CR on Hull docks in 1994, although that account was in his defence statement.[14]There are three grounds of appeal against conviction. They are all based on rulings made by the Judge between 11 and 12 February on PII disclosure, an application to cross-examine PW about admitted sexual encounters with men when he was aged 16 and what, if anything, the defence would be entitled to put to police officers. The judge ruled that some items of police intelligence should be disclosed to the defence (volume 1, page 2 at line 37), but not that intelligence evidence, which was not proven, could be put to witnesses (volume 5, page 1C). The prosecution conceded that the defence was entitled to put to police officers comments that the appellant had made in interview, and that the police had been influenced by CR to counter any suggestion of recent fabrication (volume 5, page 1B to C and H and page 2A). He also permitted evidence of CR and IR's convictions because his defence was collusion by them stemming from their involvement in unlawful activities (volume 2, page 1, lines 25 to 29 and 43 to 48). He refused leave to cross-examine PW, pursuant to section 41 [of the Youth Justice and Criminal Evidence Act 1999] on the ground that the material did not relate to the appellant and was not relevant (see volume 2, page 3, lines 4 and 25.)[15]The first ground of appeal against conviction is that the judge erred in failing to give leave for the defence to adduce evidence of the police intelligence that suggested that CR and IR were involved in drug dealing more recently, which was a central part of the defence case. The second ground is that the judge erred in refusing the defence leave to cross-examine PW, pursuant to section 41 of the 1999 Act, about comments during his ABE interview: when he was about 16 years of age he went with two males to a flat, looked at some pornography and had sexual intercourse with one of the men. The third ground is that there were material deficiencies in the prosecution disclosure which significantly affected and undermined the fairness of the trial. Ground 1[16]Mr Parsons submitted that it was an essential plank of the defence case that CR, IR and CT were involved in a criminal conspiracy concerning the selling of drugs in the area and car ringing, which the appellant knew about and was interfering with. It was the defence case that the three of them were motivated to lie to get the appellant out of the village and stop him interfering in their activities. Mr Parsons submitted that it was the prosecution's case that the statement by the appellant in interview and in his evidence, that he had information that CR was selling drugs from his taxi in and around the area, was fictitious and that that was why the appellant had refused to name his sources.[17]He contended that the judge erred in only allowing evidence of an entry from within the intelligence that, when IR was searched after being arrested in 2005, a small crumbling white rock was found in his pocket which he admitted was cocaine. That intelligence is recorded as part of IR's arrest for drunk and disorderly behaviour. Mr Parsons argued that he should have been allowed to put more extensive details of the police intelligence about them to the officer in the case, that he noted that he had only been allowed to put that because there had in fact been a conviction for drunk and disorderly conduct, and that entry related to the events around that.[18]As far as CR was concerned, all that was before the jury were his convictions, including the one for drug supply in 1994. Mr Parsons submitted that the intelligence log supported the appellant's case that it was thought that CR had been involved in drug dealing far more recently, and in the period immediately before these allegations were made. The judge's refusal to permit more extensive details to be put before the jury allowed the prosecution to undermine the appellant's case significantly by making it appear that any suggestion that the complainants were involved in drug dealing was a figment of his imagination and only being advanced to discredit the complainant.[19]The intelligence in respect of CR consisted of five items between May 2009 and April 2010. That for 24 December 2009 recorded anonymous information alleging that three men in Hunmanby were involved in drug distribution in a drug distribution racket, two, including CR, were named. Two entries in January 2010 record CR openly supplying cocaine to his associate in a number of named pubs and the entry, dated 21 April 2010, stated that he had a number of high powered cars parked outside his house and local residents believed the vehicles were linked to him supplying Class A drugs.[20]There were nine items of intelligence concerning IR in a wider but earlier period: from October 1995 to March 2006. They record IR as believed to be supplying Class A drugs on a regular basis and spending well beyond his means. One entry stated that the locals described him as one of the biggest drug dealers in Filey. The only reference to the source of information is in one undated entry, which states it to be "always reliable" and describes the information as "known to be true without reservation".[21]In our judgment, the judge did not err in excluding these items of police intelligence. The intelligence was largely from unidentified sources, or sources only identified as "local residents" or "the locals", or just, as we have stated, described as "always reliable" or "known to be true". The information was largely unsubstantiated.[22]Accordingly, bearing in mind the approach taken by this court in R v Braithwaite [2010] EWCA (Crim) 1082, these items of intelligence did not satisfy the test in section 101B of the Criminal Justice Act 2003 of having "substantial probative value" in relation to a matter which is of substantial importance in the context of a case as a whole. Moreover, it was not the case for the prosecution that the allegation that IR and CR were connected with drugs was fictitious, because CR's conviction was before the jury and IR's admission of being in possession of cocaine was also before them.[23]What the prosecution suggested was fictitious was the appellant's suggestion that the complainants had made these allegations against him because he was interfering in their recent drug dealing and car ringing activities. None of the pieces of intelligence relied on by Mr Parsons mentioned more than one of the complainants, although one did make a link between CR and the witness NF, but only said that NF was a good friend of CR. Ground 2[24]This concerns PW's statement during his interview that he had sexual intercourse with another man when he was about 16 years old. The judge stated (volume 2, page 3 at lines 4 and 25) that the comments by PW did not relate to the appellant and he did not see their relevance. Mr Parsons submitted that this evidence would account for the way PW gave details of the encounters attributed to the appellant at about the same time, and in his written submissions (although not developed orally) stated that it would also explain why he had cause to question his sexuality in later life. He submitted that in the absence of evidence in response to such questions the prosecution were allowed to suggest that the only explanation for the detailed account, and the later concerns of PW about his sexuality, would derive from the alleged conduct by the appellant and the jury were deprived of an opportunity to consider an alternative explanation, which would have assisted the defence case substantially.[25]Since the defence case was not one of consent but of no sexual involvement sections 41(3)(b) and (c) are not relevant. As to section 41(5) which applies:
"...if the evidence or question— (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused."
[26]Since the prosecution case did not rely on evidence from PW that the sexual experiences he had with the appellant caused him to question his sexuality in later life, and since it was not suggested either to the appellant or in cross-examining PW, or at any other stage, that PW could only provide details of the sort he did about experiences of this type because of what happened with the appellant, section 41(5) does not apply and does not justify adducing the evidence sought by Mr Parsons. That leaves section 41(3)(a), which deals with a relevant issue which is not an issue of consent. The evidence or question must, however, relate to a relevant issue in the case.[27]Mr Parsons, in effect, submitted that the relevant issue was the fact that PW had given a detailed account of the encounters he alleged had occurred with the appellant, because it would show that the ability to give detail did not follow exclusively from an experience with the appellant. In response to a question from the court, he modified that submission by emphasising the fact that the evidence related to events at about the same time as the conduct with the appellant.[28]It is important to remember the terms of section 41(1) which are that, save with the leave of the court and in the circumstances set out in the section, no evidence may be adduced and no question may be asked in cross-examination by, or on behalf of, any accused about "the sexual behaviour of the complainant". Moreover, by section 41(4):
"(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."
The line between evidence which is adduced to impugn the credibility of the complainant, and evidence which relates directly to the weight to be attached to the complainant's evidence about the central allegation, can be a fine one. The circumstances of the present case are, however, very far from those in a case such as R v Martin [2004] 2 Cr App R 22 when the evidence in question was considered not to be merely about credibility, but to concern bias or motivation to fabricate on the part of the complainant.[29]In this case the evidence is simply that PW had sexual intercourse with another man. If the mere fact that a complainant gives a detailed account of the alleged encounter allows evidence of other sexual behaviour to be admitted under section 41(3)(a), that would constitute a significant narrowing of the primary provision in section 41(1). This is because the reason for adducing such evidence is one which could apply to any description of sexual offending by a complainant who has had other sexual encounters.[30]We consider that the reformulated submission that this should be allowed when the other sexual encounters had happened about the same time does not avoid the problem. We do not consider that the judge erred in not permitting this question. Ground 3[31]Mr Parsons' written submissions relied on three matters. The first related to intelligence about the prosecution witness NF, which was discovered after the trial and suggested he had convictions for drugs. Mr Parsons did not pursue this ground because the prosecution has confirmed that checks revealed that his convictions that were disclosed to the defence on 12 February (the second day of the trial) are accurate and there were no further convictions. The second limb of this ground advanced, albeit without great enthusiasm, by Mr Parsons was the fact that the officer in the case's contemporaneous investigation booklet, known as the "green book", had not been shown to the defence. It recorded the evidence and information of the officer's enquiries and telephone calls and witnesses.[32]Mr Parsons relied on the following matters: first, the green book was used to cross-examine a defence witness in respect of something he was said to have told the officer, but the contents of the green book on that occasion were shown to be inaccurate; secondly, after the cross-examination of a prosecution witness, in which the defence had highlighted discrepancies between the witness's statement and her evidence, the officer in the case produced the green book and entries were subsequently read to the jury which purported to accord with her evidence rather than with her statement.[33]Mr Parsons' third example was evidence about one of the incidents of alleged harassment of the appellant by CR. The officer in the case asserted that one of the instances could not have taken place because she checked that CR was in a meeting. Mr Parsons submitted that when the green book was referred to it seemed that the timings were only approximations and CR might not have still been in the meeting and could have committed the act. The officer corrected the impression given before the jury. In fact it appears that the correction was that although CR may not literally have still been in the meeting at the relevant time the appellant alleged he had been confronted by him, unless CR had travelled a very substantial distance in a short time he could not have been present.[34]Mr Parsons submitted that the entire contents of the green book should have been disclosed to the defence prior to the commencement of the case, or after it was clear the prosecution was going to rely on it to discredit the appellant's account. The third failure of disclosure complained of was that during the appellant's cross-examination the prosecution put to him that he had been overheard during a lunch adjournment chatting and laughing with a friend in a local café about the evidence and distress of a witness. Mr Parsons accepted that it had been mentioned to him by the prosecution, as he stated, in passing, but it was not disclosed that it was going to be put to the appellant as it was. It was, he submitted, unfair to refer to what Mr Parsons described as "gossip" from an unidentified source in cross-examination, because it had probative value and was used seriously to embarrass and undermine the appellant and prejudice him.[35]We do not consider that either of these two matters undermine the fairness of the trial or put in question the safety of the conviction. We do not consider that the prosecution erred in not disclosing the full contents of the green book before the trial commenced, or during the trial. It is clear that where material that undermined the prosecution's case or assisted the defence case came to light it was disclosed. The defence had not given notification as to which of the potential defence witnesses would be called until after the beginning of the trial and very shortly before the defence case. The record was used in respect of the prosecution witness, Christine Nuttall, who had been accused when cross-examined of lying to the police to assist PW's allegation. It was used to rebut the suggestion that her evidence had been fabricated after PW made his allegations about the appellant.[36]As to the evidence by the officer in the case that CR could not have harassed the appellant because he was at a meeting, what happened on this occasion is an example of the prosecution ensuring that any misconception was corrected. In any event, the nature of the correction shows that the error was not a fundamental one.[37]Finally, with regard to what was put to the appellant in cross-examination, Miss Mallett stated that with hindsight she regretted that this had been put. She was right to do so, but the appellant replied saying that he could not remember the event, the matter was not pursued, and, in our view, this was such a minor part of the case that it could not affect the safety of the conviction.[38]Accordingly the appeal against conviction is dismissed.[39]Before turning to the appeal against sentence, we also observe that the summing-up has many words marked as "inaudible" in it. This was because there was a failure of the microphone on the bench when the judge was summing-up. The court is grateful for the prosecution counsel's notes of the summing-up and the assistance that both counsel have given the court and the Criminal Appeal Office, in this respect, to identify names which were marked "inaudible".[40]We turn to the appeal against sentence. The judge had the benefit of a pre-sentence report and statements from two of the victims about the serious consequences of the offending behaviour on their subsequent lives. The appellant has 28 convictions for 75 offences, including theft, burglary, going equipped for theft and driving offences. He has previously served sentences of imprisonment for these, including 9 months' imprisonment in 1994 for theft, 4 months for driving whilst disqualified in 1999, and a total of 6 months in 2004 for the same offence.[41]The pre-sentence report referred to the appellant's denial of any offending and consequent lack of remorse or understanding of the consequences for the individual victims, and that he had explained what had happened as an elaborate conspiracy in which he was the victim. He was assessed to pose a high risk of serious harm.[42]The judge stated that the offending was committed when the appellant was aged 17 to 19 and three of the complainants were very young and the fourth a young teenager. The judge referred to the plea of not guilty, the need for a trial, the fact that the offences were very serious and the victim impact statements showed that the appellant's conduct has had a profound effect on his victims. He took account of the fact that the appellant was a young man and only four years older than the oldest of the victims, the fact that the offences are old offences and that minimal force was used. He stated that in counts 1 and 3 the touching was only of the fleeting sort, but stated that what was important, and had to be taken into account, was the seriousness of the offences and the effect on the victims. He also stated that one or two witnesses said that the appellant was sometimes looked upon as the "village idiot".[43]Mr Parsons accepted that a substantial sentence was inevitable and is appropriate for offending on this scale against four complainants. He, however, contended that a total of 9 years would have met the justice of the case and that the judge in passing a sentence of 14 years' custody, failed to place the offences in the context of the appellant's overall offending history, his age at the time of the offending and the principle of totality. As far as the younger victims are concerned, he submitted much of the offending was masturbating in front of them. In relation to the more serious offences where PW was the victim, he submitted that he was close in age to the appellant and largely agreed to the conduct at the time, and on one occasion sought the appellant out to prolong the sexual relationship.[44]He submitted, in particular, that it was wrong to pass a consecutive sentence for count 10 of 4 years and a further consecutive sentence of 5 years for count 12, which the judge had regarded as the most serious offending. Apart from the closeness of age with PW, Mr Parsons submitted that the judge failed to take account of the fact that the appellant had been described by a number of witnesses who knew him as being something of a "village idiot", indicating a level of immaturity; that he failed to take account of the fact that the offences were all committed before the appellant was 21 years of age; that there had been no convictions of a sexual nature in his record since; and that his last indicted offence was in 1980.[45]Although the appellant's offending was long ago, and it is right to take account of that fact and of the absence of convictions for sexual matters since and of any indicted offence since 1980, the appellant did not have the benefit of a plea. His convictions followed a trial at which the victims, who had been profoundly affected by what he had done to them, had to give evidence and were cross-examined.[46]We do, however, consider that there is force in Mr Parsons' submission. A sentencing exercise in a case of historic sex, such as this, is not a straightforward one for the sentencing judge. The judge is required to look at current practice, but to reflect, to some extent, the passage of time.[47]There was a small difference in age between the appellant and PW at the time of the offending. The appellant was a young man when he did the acts and the evidence is that he was immature for his age. We have concluded that those factors, together with the absence of convictions for sexual matters and the absence of indictable offences since 1980, mean that a total sentence of 11 years is sufficient to mark the seriousness of his offending.[48]We consider that the sentence for count 7 (the first of the offences involving PW) should be made concurrent to counts 8 to 14 and that for the five offences of buggery there should be a sentence for each of 7 years' imprisonment. We have determined that figure taking account of the fact that at least one of the offences was more serious, but reflecting that this meets the overall seriousness of that offending. The result is that the sentences for the offences against the four younger victims total 4 years, and with the adjustments that we make the total sentence for the offending involving PW is 7 years.[49]Accordingly this appeal is allowed to the extent that the sentences for count 7 and 10 to 14 are set aside and replaced with a sentence of 12 months concurrent for count 7 and 7 years concurrent for each of counts 10 to 14, but consecutive to the offences on counts 1 to 6. To that extent this appeal is allowed.