Murphy, R v [2014] EWCA Crim 1457

[2014] EWCA Crim 1457Case No 201304711B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18 June 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BEATSON
MR JUSTICE WILKIE
SIR STEPHEN SILBER
Between
R E G I N ACrownv
Between
MURPHY
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 7404 1424(Official Shorthand Writers to the Court)
Miss K L Halsall appeared for AppellantMr R J Philpotts appeared for Crown
J U D G M E N T

LORD JUSTICE BEATSON:

On

[1]8 August 2013 in the Crown Court at Caernarfon following a trial before HHJ Merfyn Hughes QC and a jury, the appellant Philip Murphy, now aged 29, was convicted of: one count of rape (Count 5); two counts of sexual activity with a child (Counts 1 and 2); and one count of sexual assault of a child under 13 (Count 3). The complainant in the case of the rape, Count 5, was VT. The complainant in Counts 1 and 2 was MR. The complainant in Count 3 was GW. On the same day he was sentenced by HHJ Merfyn Hughes QC to 5 years' imprisonment on Count 5, and to 12 months' and 3 months' imprisonment respectively on Counts 1 and 2, those sentences to be concurrent to each other and to the sentence on Count 5, and to 2 years' imprisonment on Count 3, that sentence to be consecutive to the sentence on Count 5. The total sentence was thus 7 years' imprisonment. The appellant was acquitted of Count 4, a charge of assault by penetration in the case of which the complainant was WM, his then mother-in-law.[2]The provisions of the Sexual Offences Amendment Act 1992 apply to this offence and therefore no matter relating to the victim of such an offence is to be included in any publication if it would lead members of the public to identify that person as a victim. We confirm that remains the position and for this reason we refer to all the complainants by initials.[3]The appellant appeals against conviction with the leave of the single judge on one ground concerning the admission by the judge on 6 August 2013 of a statement of Thomas Bowler, an absent witness, under s.116(2)(d) of the Criminal Justice Act 2003. S.116(2)(d) provides that hearsay evidence, that is, "a statement not made in oral evidence in the proceedings", is admissible as evidence if: "... the person who made the statement cannot be found although such steps as is reasonably practicable to take to find him have been taken".[4]The issues were whether, in the circumstances we shall describe, the prosecution had taken such steps as it was reasonably practicable to take to find the missing witness and, if they had, whether the evidence should in any event have been excluded by the judge in the exercise of his discretion under s.78 of the Police and Criminal Evidence Act 1984.[5]The single judge referred a further ground to the full court: whether the learned judge erred in refusing to admit matters concerning MR's background, including a history of self-harming, drinking to excess and drug-taking, and cautions, reprimands and warnings. The single judge referred this question because, although he said the learned judge said he was entitled to control the evidence of MR's background, he was concerned that the judge might have allowed the jury to have an unfairly incomplete picture of MR. At the outset of the hearing we gave leave on this ground. There was originally a third ground concerning MR's behaviour towards the appellant outside court during the trial; the single judge refused leave on this ground and it was not renewed.[6]The appellant was, at the material time, married. He and his wife had two children. VT was at the material date aged approximately 28. MR is the appellant's wife's half-sister. On the dates of the events to which Counts 1 and 2 relate, she was aged under 16. GW is the appellant's wife's cousin. On the dates to which Count 3 relate, she was aged under 13, about 10 or 11. The conduct which gave rise to the counts concerning MR, GW and WN was first reported to the police on 18 June 2012, shortly after the appellant was arrested for the rape of VT. It was part of the defence case that WM had encouraged others in the family to come forward, and that the accounts of MR and GW, and indeed of WM, had been fabricated and orchestrated by her after she heard of the allegation of the rape of VT. We first deal with the appeal concerning the conviction for rape. Count 5: Did the judge err in admitting Thomas Bowler's evidence?[7]The material facts concerning Count 5 can be summarised as follows. On 6 May 2012, VT reported to the police that she had been raped by the appellant at his home address in the early hours of Saturday 5 May. She stated that she went to his home address with friends after an evening out, in the course of which they met the appellant and a friend of his, Elfed Jones. It is clear that all the party had been drinking heavily before going to the appellant's house. They continued drinking while they were there. VT stated that she fell asleep and woke up to find that her friends had left and the appellant was having vaginal intercourse with her. She thought that she then fell asleep again before eventually waking at 7.00 am. She found herself fully clothed on the sofa in the front room, and her knickers were wet. She left the premises in a taxi and went to her mother's address where she went to bed. She stated that when she woke later in the day she drank vodka and took cocaine in order to forget what had happened. However, she later told her friend Natalie Williams what had happened, and after that, reported the matter to the police.[8]Ceri Hughes and Mark Ryan, two of VT's three friends who went to the appellant's house with her, gave evidence about her state of intoxication and the events at the house that night. Ceri Hughes' evidence was that when she left the appellant's house, VT had fallen asleep on the sofa in the dining room, which was the back room. She said: "I tried to wake her. I shook her but she was fast asleep and I wasn't able to wake her. I can remember shaking her but I wasn't too worried because [I thought that VT would be fine]." (See summing-up 76G to 78A).[9]Mark Ryan remembered going to the back room and, when asked what VT was like, he said, "She was a bit thin". She was on the sofa behind him, and:
"... obviously had a bit too much to drink as her head was slumped forward. She was awake but obviously intoxicated."
He remembered leaving at the same time as Ceri Hughes and Thomas Bowler and stated that, "When I left VT was on the couch with a blanket over her". He said it was he that put the blanket on her, and that she was asleep. He also said, "Before I left she woke up", and, "She woke up a little before I left, she was in and out of it". After reminding himself of what he had said in his statement, he then said, "She was still asleep on the sofa when I left", and, "She spent the whole time sleeping on the sofa".[10]VT's friend Natalie Williams gave an account of the early part of the evening when VT was still at home drinking wine. She also gave evidence of VT's first complaint that day that she had been raped. She described VT as tearful and angry when telling her.[11]Thomas Bowler was the third friend of VT's who was present at the appellant's house. As we have stated, he did not attend court when required and it was his statement that was read to the jury which is the subject of this appeal. We shall return to that statement.[12]The appellant's friend Elfed Jones stated that there came a time when he decided to leave. A girl he had never met before and had not taken much notice of was sitting on a sofa in the dining room. He said that he asked her to leave twice and, after being given the opportunity to remind himself of what he had said in his statement, he said that the response from the female was that she was making moaning and groaning noises. He did not recall telling the appellant to wake the girl up and did not remember whether the girl was on her feet and wide awake when he left.[13]The defence case in relation to Count 5 was that the appellant and VT had sexual intercourse but it was entirely consensual. The appellant's evidence was that at his house the party had been drinking for about an hour when VT went to sit on the single-seater sofa and dozed off. When Thomas Bowler was about to leave, the appellant told him to take VT with him, but he said he could not because he lived in a hostel. The appellant said that they had no difficulty in waking VT but she did not want to leave. He gave her some water and phoned for a taxi, but was told it would take about half an hour to arrive. He said that while they waited, VT asked for a cuddle, to which he replied that, "We should not do this as my wife and children are upstairs". But she started stroking his leg and kissed him. He said that he kissed her in return. She gave him oral sex and they then had sexual intercourse. She was on the sofa. She removed her trousers but kept her coat on. The appellant said that after he had ejaculated they chatted for a while until her taxi arrived, when she left.[14]Forensic evidence in the form of a high vaginal swab from VT established that the appellant's DNA from semen was present. The issues for the jury were whether VT had given a true and accurate account, whether the sexual intercourse had been consensual, and whether the appellant held a reasonable belief that VT was consenting.[15]Thomas Bowler's statement is dated 25 May 2012, three weeks after the incident. He stated that he had received a call from the appellant inviting him and his friends to the appellant's house. VT was pretty intoxicated and the fresh air on the way from the Tesco supermarket, where he and his friends had met the appellant and then went to the appellant's house, "finished her off". She fell asleep on the sofa and he noticed she was still there when he left. After he arrived home he received a telephone call from the appellant asking what he should do with VT. The appellant said he "could not wake her". Thomas Bowler said to him that he did not know VT that well and suggested that the appellant called a taxi for her.[16]The reason the prosecution applied for Thomas Bowler's statement to be read was that the defence case as put to other witnesses was different, as we have summarised. It was that VT was alert and awake when the other guests left and that she later instigated the acts that led to sexual intercourse.[17]In his ruling the learned judge set out the history of the matter, including the prosecution's contact with and attempts to contact Mr Bowler. Mr Bowler had been warned he was required but did not keep in touch with the prosecution. At some stage he must have given them his address in London because it is evident from the material before us that they had this. The first day of the trial was to be Monday 29 July 2013. The prosecution had not heard from Mr Bowler on Friday 26 July, the last working day before the beginning of the trial which, as counsel recalled, albeit with some hesitation, was listed to last into the week commencing 5 August. The prosecution sent a letter to Mr Bowler's address asking him to get in touch with the Crown Prosecution Service. There was no response.[18]On the first day of the trial the prosecution applied for and was granted a witness summons requiring Mr Bowler to attend court during the course of the trial. That summons was served on Mr Bowler at about 10.00 pm on the evening of 29 July. Mr Bowler did not attend court on 1 August as he had been required to, but telephoned at lunchtime to say he had only become aware of the hearing when he had been served with the summons. He stated that he was not trying to avoid the hearing but would have great difficulty in dropping everything and getting to North Wales, particularly as he had no funding to do so. It was explained to him that an application was to be made for a warrant for his arrest, but he reiterated it would be difficult for him to get to North Wales for Friday 2 August.[19]The prosecution was informed that a travel warrant could be sent electronically so that Mr Bowler could collect it and attend on the Friday. He indicated that he would come. They therefore did not at that stage proceed with the application for a warrant for his arrest.[20]Mr Bowler did not, however, attend on the Friday. On that day the judge was satisfied that he was deliberately attempting to avoid a witness summons and issued a warrant for his arrest. On Monday 5 August an officer of the Metropolitan Police attended at Mr Bowler's London address. He was informed by Mr Bowler's partner that Mr Bowler had disappeared on the Friday. There was no trace of him on the premises. Later, shortly after 6.00 pm that day, Mr Bowler telephoned the court and spoke to the court clerk who advised him to contact the Crown Prosecution Service. The court clerk called the number back a little later and in that conversation Mr Bowler said he was aware of the fact that police officers had called at his address while his girlfriend was there, but he was not. He also said that he was not going to hand himself in. He repeated the claim that he had no funding for travel to North Wales. He also suggested that he could not remember what had happened in the case and said that he would lose his job if he missed work. He also said that he could not leave his daughter and that no one had got back to him on the Friday.[21]The court clerk informed him that there was a warrant for his arrest and that he should contact the police. The court had his telephone number from the caller ID when he made his first telephone call on 5 August. Mr Bowler refused to give the court clerk his address.[22]We add that the warrant to arrest Mr Bowler remained extant, but it appears that after 5 August no further efforts were made to execute it until police attended his address on 27 March 2014. As a result of that visit, Mr Bowler surrendered himself. He appeared before HHJ Merfyn Hughes QC at the Caernarfon Crown Court on 28 April this year for contempt in failing to attend the appellant's trial to give evidence, pleaded guilty, and was sentenced to 6 weeks' imprisonment.[23]In the prosecution's application to read Mr Bowler's statement, it stated (see volume 26B and see also 2B to 3B) that his evidence was important evidence but not the sole or decisive evidence of the allegation of rape. The prosecution contended that the appellant could deal with it because it was his stated intention to give evidence. The defence objected to adducing the evidence in this way. After hearing submissions, the judge ruled in favour of the prosecution. He stated:
"The difficulty with those submissions is that, so far as the fairest way to proceed is concerned, it would not be fair to the Prosecution to proceed without the evidence of a significant witness. Furthermore, I accept that he is a person who can be traced, but when he will be found is impossible to say. Even if he was arrested within the next 24 hours, it is unlikely that he would be brought to court before Thursday of this week. So far as the discretion to exclude is concerned, I bear in mind that he [the appellant] can deal with this evidence should he choose to do so and of course I shall be giving the jury 'Directions' as to the weight they should attach to such a statement."
[24]The judge concluded that, in those circumstances, he was satisfied that the conditions set out in s.116(2)(d) were made out and that it was not appropriate to exclude the evidence under the discretion contained in s.78. When summing-up the case to the jury, the judge gave the following direction about the reading of Mr Bowler's statement:
"Tom Bowler…was not present even though he was required to be here. I told you at the time that it was important that you didn't speculate as to why he was not here but the result is this; he has not been here to be cross-examined. In other words, his evidence, as contained in his statement has not been tested and there is a dispute between the defence and his evidence as to the contents of that phone call because he says to you in that statement that the defendant told him he could not wake VT and that is an issue between them. So do bear in mind when you consider what weight you can attach to Mr Bowler's statement through the reading of his statement the fact that the defence have not been able to challenge him in the witness box."
[25]Miss Halsall submitted that the judge erred in allowing the statement to be read. First she submitted that the judge erred in concluding that the conditions set out in s.116(2)(d) of the 2003 Act had been met because the judge had said in terms that Mr Bowler was "a person who could be traced". There was a contact number for him. He was working and he would easy have been traceable. That being the case, more effort should have been made to locate him and bring him before the court. She submitted that the prosecution had not done enough before the trial, leaving matters until one working day before its start, and did not do enough when Mr Bowler made contact on the day after he got the witness summons. The warrant was issued on the Friday but nothing was done to execute it over the weekend. It was only on the Monday that officers sought to execute it.[26]Alternatively, she relied on the cases of Adams [2007] EWCA Crim 3025 and DT [2009] EWCA Crim 1213 for the proposition that there was a duty on the Crown to take steps promptly. This court recognised that witnesses are not well-organised and do not want to come to court. In the DT case, as in the Adams case, this court decided that steps taken very shortly before the hearing were insufficient.[27]Secondly, Miss Halsall submitted that, if the court was to find that such steps as it was reasonably practicable to take to find Mr Bowler had been taken, the judge erred in failing to exercise his discretion to exclude the evidence under s.78. Her oral submissions on this were succinct, but in her written submissions she argued that he gave insufficient weight to the interests of justice test as set out in s.114(2) of the 2003 Act. She relied on the statement of this court in R v Cole and Keet [2007] EWCA Crim 1924, reported at [2008] 1 Cr App R 5, that the court would be likely to take into account the factors listed in s.114(2) when considering s.78.[28]Miss Halsall submitted, thirdly, that the untested evidence went to a crucial issue in the case, namely whether the appellant said he could not wake VT. The prosecution had other evidence to show that VT was asleep when others left the house. Mr Bowler had indicated to the court on the telephone that he could not remember what happened in the case. She also submitted the judge's observation that the appellant was able to deal with the evidence, should he choose to do so, by giving evidence himself and his remark that he would be “giving the jury directions” did not redress the overwhelming prejudice caused by the admission of this evidence.[29]We bear in mind the importance of all practicable efforts being made to get a witness to court in view of the importance of the right to confrontation in the common law and under Article 6(3)(d) of the European Convention on Human Rights: see DT's case at [25] referring to the case of Horncastle [2009] EWCA Crim, now affirmed in [2009] UK SC14, and a decision which has been accepted by the Strasbourg Court in the decision of the Grand Chamber in Al-Khawaja v UK [2012] 54 EHRR 23.[30]We also bear in mind that in Adams this court, in a constitution presided over by Hughes LJ, stated at [13] that for the purposes of s.116(2)(d) it was not good enough for the prosecution to leave contact with a witness until the last working day before the trial. In this case, however, the trial was to go into a second week. The prosecution successfully served a witness summons on Mr Bowler on the first day of the trial. There was telephonic contact with him on 1 August and they attended his address on 5 August. The trial judge also had before him details of the telephonic contact between Mr Bowler and the court clerk in the early evening of 5 August.[31]In these circumstances we have concluded that the judge was entitled to conclude that the prosecution had done what it was reasonably practicable to do in the circumstances to find Mr Bowler. That question was ultimately a question of fact and primarily for the trial judge: see Professor Spencer's Hearsay Evidence in Criminal Proceedings, second edition, paragraph 6.2.2.[32]The judge referred to what the prosecution had done, and to the fact that the police had located Mr Bowler at his home address. But he also referred to the fact that Mr Bowler had absconded from his home address, to the uncertainty as to when he would be found and to the unlikelihood of it being possible to bring him to court before the end of the trial.[33]In Adams, this court at [10] rejected the suggestion that there is a relevant semantic distinct between "cannot be found" and "cannot be contacted". This case has similarities. We are satisfied that Mr Bowler could not be found at the material time. While best practice may have been for the prosecution to make contact more than one working day before the start of the trial, it appears that there was some contact because the prosecution had Mr Bowler's London address, as well as his Holyhead address. Once contact had been made Mr Bowler indicated that if a travel warrant could be dispatched he would come. Arrangements had been made to meet him off the train in Bangor and take him to the court in Caernarfon.[34]In the circumstances of this case, we consider that the judge was entitled to conclude that Mr Bowler was reluctant to travel to North Wales to give evidence. The reasons he gave for not attending included inconsistent reasons; the need to care for his daughter and his work commitments. Moreover, the judge was entitled to conclude that the professed failure by Mr Bowler to recall the events was deployed in order to excuse his failure to attend. We are also satisfied that the judge's decision took account of the relevant facts and was not outwith the scope of the margin to be allowed to a trial judge.[35]As far as s.114(2) and the factors in considering whether it is in the interests of justice for a hearsay statement to be admissible are concerned, the judge did not expressly refer to s.114(2). He did, however, record the prosecution's case that although the evidence was not the sole or decisive evidence of the allegation of rape, which reflects s.114(2)(b). He referred to the effect of the ability of the appellant to give evidence challenging the statement together with the standard hearsay direction which reflects the factors in s.114(2)(h) and (i). He also referred to the importance of the evidence and its probative value in relation to the issue as to whether or not VT was awake when the others left, which reflects s.114(2)(a) and (c). He did not refer to the factor in s.114(2)(d) - the circumstances in which the statement was taken. Here it was taken by a police officer three weeks after the event, but it has not been suggested that there was anything about that that meant that it would not be in the interests of justice to admit the evidence. As to Mr Bowler's professed failure to recall the events, he would have been entitled to refresh his memory from his statement which was given not long after the date of the incident.[36]As to the decision in Cole and Keet, on which Miss Halsall's written submissions rely, in view of the matters to which we have referred, we consider that the case provides only limited assistance to the appellant. Moreover, in one respect it supports the position taken by the judge and supported by the prosecution in this appeal. It is to be recalled that this court, in a judgment given by the then Lord Chief Justice, stated that the correct approach in considering hearsay statements is not to consider each statement in isolation but to consider them in their context. In that case, this meant that a statement which was lacking in detail and precision was nevertheless properly admitted because, seen in context, it produced a coherent and compelling picture of the relationship between the deceased in that case and the appellant.[37]For all these reasons we are perfectly satisfied that, notwithstanding the absence of a reference to s.114(2), the judge did address the majority of the factors which are relevant to admissibility which are set out in it and that those that he did not address have not been said to be material.[38]We have also concluded, for the reasons that we have given in respect of the s.114(2) factors that, even if Mr Bowler's statement should not have been admitted under s.116(2)(d), it was probably admissible in any event under s.114(1)(d) on the basis that it was in the interests of justice for it to be admitted. We do not consider that the conviction by the jury on Count 5 is arguably unsafe.[39]We say that for two reasons. The first is that other witnesses, in particular Ceri Hughes, Mark Ryan and Elfed Jones, all gave evidence that VT was asleep or in a semi-comatose state when they left. The second is the clear direction given by the judge to the jury informing them that Mr Bowler had been required to attend but did not attend and that it was therefore not possible for the defence to cross-examine him and test his evidence. Miss Halsall submitted that he could have given a more emphatic direction but she conceded that, legally speaking, there was nothing wrong with the direction given. This ground of appeal therefore does not succeed. Sexual activity with a child; background evidence about MR and the evidence about her conduct:[40]We turn to the ground arising out of the background relating to MR. The material facts of Counts 1 to 3 can be summarised as follows. When WM reported to the police that the appellant had sexually assaulted her in 2009 - that was the Count on which the appellant was acquitted - she also reported that he had engaged in sexual activity with MR between 2006 and 2007 and GW in 2008 or 2009. MR and GW were, as we have stated, children at the material times, GW was aged under 13. As we have stated, it was part of the defence case that WM encouraged MR and GW to come forward and that the accounts of the three of them were fabricated.[41]The prosecution case was that WM, MR and GW gave independent, truthful and accurate descriptions of events in which they had been sexually assaulted by the appellant. It is only necessary to deal with the counts that relate to MR. They related to him deliberately touching MR's vagina when she was in bed on one occasion and him touching or attempting to touch her breasts repeatedly.[42]The conduct can be summarised as follows. MR described an occasion when she was babysitting for her half-sister and the appellant's son at their home in Brighton. She stated that after the appellant and her half-sister had come home, and her half-sister had gone to bed, the appellant, who was drunk, came to the attic room where she was in bed, joined her beneath the bed clothes and touched and rubbed her vagina. She stated that when she protested he replied, "it's only fun": (Summing-up 27 to 29 and 29H to 30F)[43]MR stated that although the appellant only touched her vagina on one occasion, he frequently behaved in a flirtatious manner and touched her breasts, or attempted to do so, after his wife had gone to bed. This conduct was the subject of Count 2. She stated that, when she protested, the appellant repeatedly said that it was, "only a bit of fun". She said that she had lost count of the number of times he had touched or tried to touch her breasts. She did not report the matter at the time, but at some stage she did inform JR, GW's mother, because she was concerned that her half-sister was getting married to somebody like the appellant. She did not want JR to tell her half-sister because everybody was very excited about the wedding and she did not want to hurt her half-sister. She had earlier reported this abuse to a teacher in a car, but told her not to do anything because it would get back to her half-sister and the wedding was only a few months away. She said that, other than concern about upsetting her sister, it was her word against the appellant's. But, after the events with VT, she thought she should say something and (summing-up, 32B – C) she stated that she also had concerns about her 2-year old niece.[44]MR also described other occasions of abuse which were not the subject of the counts on the indictment. One of these, an incident she referred to at the trial as the “Naomi incident”, was when, after a skating trip with a friend (Naomi), the appellant gave Naomi and MR vodka and they became really drunk. He suggested he could stay downstairs to look after Naomi while MR went upstairs to sleep, but MR said she would not leave her friend alone with the appellant because of what had occurred. Evidence was given by Natalie about MR telling her that she had been touched by the appellant and that he should not be around her or children, and the statements of a teacher and a residential care assistant at a children's home who got to know MR in 2011 were read.[45]The defence had been served with a large number of social services and education files concerning MR and materials about MR from police records. They applied to admit evidence of MR's background. They also applied to adduce evidence of her bad character pursuant to s.100(1)(b) of the 2003 Act on the ground that the evidence had substantial probative value in relation to MR's credibility, a matter in issue which was of substantial importance in the context of the case as a whole. Their case was that MR's complaint was fabricated at the instigation of WM. The defence submitted that the background matters, which they had identified in black on the application, were not "bad character" evidence and were admissible to show MR's unhappy life and circumstances which were relevant to her motive in making the allegations. Miss Halsall submitted that their case was that MR was jealous of her half-sister who was married to the appellant and that she wanted to be part of the family and fit in. The purpose for which the defence wished to adduce those matters, which they accepted were bad character evidence, which they had identified in red on the application, was to undermine MR's credibility.[46]We have briefly referred to the background matters. There were 15 items between 17 October 2008 and 13 April 2010 on which the defence sought to question MR. They included statements in school records saying she wished to kill herself, was self-harming, was drinking every evening and was usually stoned when drinking, her absence of a relationship with her mother, and her inability to seek emotional comfort and support from her father.[47]The defence also wished to ask MR about police reprimands for criminal damage and being drunk and disorderly, and final warnings for disorderly behaviour and criminal damage as well as charges for disorderly behaviour in a public place, breach of the peace and common assault, a caution for being drunk and disorderly, and three other incidents identified in the application.[48]The first of those incidents, identified in red, concerned reports at school and in police records that she claimed to have been assaulted by her father on 16 November 2009. The school record said that she had said that her father had pushed her and tried to strangle her, and she had called North Wales Police because she was scared of him. The police records state that the police attended, saw MR was drunk and arrested her for breach of the peace. She told the school that she spent the night in police cell. The defence claimed that the differences in MR's account to the police and to the school show that she gave quite different accounts to both, and that the judge was wrong to say that the differences did not justify saying that she had told an untruth. They maintained that the differences justified the inference that she had made a false complaint.[49]The second matter on which the defence relied was a report that, on 8 February 2010, she had asked somebody at school what would happen if she said that her father hit her. It is recorded that she was told this would have to be passed on to social services. She is also recorded as saying that when her father came home drunk he would hit her and kick her. The third matter concerns questions that they wished to ask based on social services child protection conference notes, which stated that MR had stated that, on 12 February 2010, she was raped by two unknown males. It is recorded that she said that she had been approached by a man in a park who offered to take her back to his flat, to which she agreed, where she was raped by him and another. It is also recorded that she said she did not wish to pursue the complaint about rape because she thought nothing would be done about it. The defence also claimed that these matters respectively indicate MR telling untruths about her father and by inference giving a false account of being raped.[50]After setting out the terms and reasons for the application and s.100(1)(b) and s.109(1), the judge set out in full paragraphs 34 to 38 of the judgment of this court given by the then Lord Chief Justice in Dizaei [2013] EWCA Crim 88, reported at [2013] 1 Cr App R 411, in which this court set out the approach to be taken to the admissibility of evidence of bad character of a non-defendant. For present purposes, it suffices first to recall that the threshold required for the admissibility of the bad character evidence of a non-defendant is a high one. It was deliberately set in this way by Parliament. The evidence is admissible if:
"(a)it is important explanatory evidence; (b)it has substantial probative value in relation to a matter which (i)is a matter in issue in the proceedings, and (ii)is of substantial importance in the context of the case as a whole."
[51]As far as the decision of this court in Dizaei is concerned, it suffices to summarise the court's statements that were set out by the trial judge. They are:(1) Although, if the judge is satisfied that the pre-conditions to the admissibility of bad character evidence of a non-defendant are satisfied, there is no exclusionary discretion to avoid satellite litigation, that is not the end of the matter: [35].(2) “The bare fact of an allegation (even if assumed to be true) is not necessarily conclusive of the question of whether it constitutes substantial probative evidence or evidence of substantial importance in the context of the case as a whole”: [36]. This is because the assumption of truth in s.109(1) of the 2003 Act in relation to the relevance or probative value of bad character evidence is not determinative of the admissibility of the evidence under s.100: [36].(3) Because the evidential assumption in s.109 does not bind the jury, it is necessary carefully to examine all the material which bears on the question: [36].(4) The investigation of the bad character evidence at trial "... may be liable to distract attention from the crucial issue which is whether the case against the defendant had been proved": [37]. Because in this context a judge would have to direct the jury that they must not consider the alleged bad character evidence unless they are sure that it is true, two trials would be simultaneously in progress before the same jury. The trial of the defendant for the crime alleged against him "... is liable to be derailed if the jury is required to decide whether a witness has committed the distinct, separate crimes [or other misconduct]": [37].(5) When assessing the probative value of the evidence in accordance with s.101(b) and s.103, the court "... should reflect whether the admission of the evidence relating to the bad character of the witness might make it difficult for the jury to understand the remainder of the evidence, and whether its understanding of the case as a whole might be diminished": [38].(6) In cases where the bad character evidence will have this effect "... the conclusion may be that the evidence is not of substantial probative value in establishing the propensity in or lack of credit worthiness of the witness, or that the evidence is not of substantial importance in the context of the case as a whole, or both. If so, the pre-conditions to admissibility will not established": [38].[52]The judge rejected the submission that the background material is not bad character evidence. He stated:
"In general terms it is material which is evidence of a disposition towards misconduct and therefore under 'Section 98', it is bad character material." (Vol. I at 15G – 16A) He also stated that the evidence failed the test in s.100. "... because it is so peripheral, both in its nature; its content and its occurrence in time." (Vol. I at 16C) After giving the dates of the 15 items, he continued: "
If those matters were adduced in this trial, the Case would be overwhelmed by the jury having to examine the disturbed adolescence of this girl, who for all sorts of different reasons, has had an extremely difficult time; not least, if she is telling the truth, by the fact that she was sexually assaulted when she was 12 or 13 years of age, by the Defendant." (Vol. I at 16F)[53]As to the entries dated 15 November 2009 relating to MR's complaints of assault by her father, the judge rejected the submission that the differences in the detail of the complaints justified an inference that MR had made a false complaint. He stated that: "Any differences can easily be explained and understood and to embark on a trial of that allegation, can only distract the jury from a decision on [MR's] credibility as a witness in this case." (Vol. I at 17E) He also stated that the incident occurred a number of years following the events of Counts 1 and 2 and the allegation was of a completely different nature.[54]As to the alleged rape, the judge stated that the police record showed that they thought something had happened but it was unclear what, where and who was involved. The police believed MR knew the identity of the men and that she was a target for those in the community who were aware of her lifestyle. The judge stated that: "Whilst her complaint was of a sexual nature, as it is in this Case, in my judgment there is no sufficient foundation for finding that it was a false complaint." (Vol. I at 18) He also stated that MR’s “lack of co-operation, when considered in the context of her home circumstances, is not evidence of a false complaint”.[55]Finally, there are the applications in respect of the reprimands, cautions and charges. Miss Halsall reduced these to three matters today, although there were many more put before the judge. The first was of disorderly behaviour in October 2009; the second was of common assault in November 2012; and the third was a caution for drunk and disorderly behaviour in February 2013. Miss Halsall placed particular reliance on the last of these. She said that in that case, MR had called the police and alleged that a male had taken her phone. When the police attended they found that MR had her phone, she denied calling the police and she was abusive about her father. Miss Halsall submitted that these are relevant to MR’s credibility and standing as a witness.[56]The judge noted that the convictions and other matters were for offences and conduct within a short timespan between October and December 2009 for relatively minor offences of disorderly behaviour and, with the exception of the incidents in 2012 and 2013, were confined to a six-week period. He concluded that they did not have substantial probative value in relation to a matter which was of substantial importance in the case as a whole. He stated:
"... whilst being matters of proven fact, they do little or nothing whatsoever to undermine [MR's] credibility as a witness in this case"
. He excepted from his conclusions one event in December 2012 when MR and a friend accused the appellant of being a "paedo" and a "knob". He found that to be admissible because it had to do with the facts of the offence and was not bad character evidence.[57]The grounds of appeal are that the judge erred in concluding that the background matters were bad character evidence. It was submitted that it was an important part of the background that MR had an unhappy home life, had not received love and attention at home, was jealous of her sister, wanted to be part of the family, and that that was the motive for making false allegations. She had had ample opportunity over the years to make a complaint about the appellant's behaviour towards her. The exclusion of the background matters meant that the whole picture about her was not before the jury, who had an unfairly incomplete picture of her when they had to assess her credibility.[58]The second ground is that, even if the background matters were bad character, they should have been admitted under s.101(a) and (b) because of their importance and the fact that they satisfied the test which we have set out. We have referred to the fact that it was contended that, in refusing to allow MR to be cross-examined in relation to the reports of the incident on 16 November, the different accounts given to the school and the police record painted a wholly different picture of the incident which justified cross-examination and would have justified an inference that her account was false.[59]In his submissions on behalf of the prosecution, Mr Philpotts submitted that the judge did not err. MR's tendency to harm herself and details of her relationship with her parents were not relevant to the fundamental issue of whether the events that were the subject of Counts 1 and 2 had occurred. He also submitted that her tendency to abuse alcohol had no significant relevance to the issue with which the jury was concerned. It was not contended that she was intoxicated at the relevant time. He submitted that the reality behind all the material was that it was designed to discredit MR and to show her to have been a delinquent teenager in 2009.[60]It is of significance, as Miss Halsall accepted, that she applied and pressed for the judge to admit all the material in the application. No selection was made. She suggested it was for the judge to restrict her to some of the material.[61]We do not consider that the judge fell into error. This court has said that it is not reprehensible behaviour to make a suicide attempt, see R v Hall-Chung [2007] EWCA Crim 3429. In principle, the same should be true of self-harming. But drinking to excess and taking illegal drugs is reprehensible behaviour: see R v AJC [2006] EWCA Crim 284, cited in Spencer's Evidence of Bad Character, second edition paragraphs 2.12 and 2.13. Similarly, the material from police records, reprimands, final warnings, cautions and charges is clearly evidence of bad character. The judge considered each piece of the evidence carefully. He assessed whether it was bad character evidence and, if so, whether it satisfied the statutory criteria which, as we have stated, set a high threshold.[62]The judge was in the best position to consider whether the material which the appellant contends should have been admitted met the relevant criteria. None of it, he concluded, tended to suggest that MR was dishonest. We agree. The material relied on to demonstrate that MR was capable of telling lies, in particular the records of the incident on 16 November 2009, were the contents of the two reports. As is usual in such reports they are full of hearsay. It was not proposed that either of the makers of the statements were to be called as witness. None of the material had been endorsed by MR and the reports did not purport to be a comprehensive statement of relevant events by her. In these circumstances, the judge was fully entitled to come to the conclusion that he did.[63]Finally, in relation to admissibility, the judge was entitled to conclude that requiring MR to explain, justify or seek to excuse behaviour in the years following the offences in the context of the trial would have unduly distracted the jury and would have overwhelmed the issue in the case. This court has emphasized the importance, in the case of contested allegations of bad character, of being particularly zealous in avoiding the distraction of satellite litigation. The then Lord Chief Justice referred to this in the Dizaei case. This court also referred to this danger in a different context in O'Dowd [2009] EWCA Crim 905, 2 Crim App R 280, where the results of adducing the evidence produced an extraordinarily long trial.[64]For the reasons given at points 4 to 6 of the summary we have given of the material parts of Dizaei's case, we consider that the judge did not err in refusing the defence application. We add in conclusion that the judge gave the appellant a full good character direction, although there were previous convictions recorded against him. Mr Philpotts relied on this as showing that he balanced matters. Had there been anything in Miss Halsall's points, we do not consider that a decision to give such a direction would have affected the matter. But, for all these reasons, this appeal is dismissed.[65]MISS HALSALL: My Lord, can I just raise one matter. I received some documentation indicating that there would be a recovery of the defendant's costs order in sum of £1,260. That was based on a document which was filled in by the appellant, saying that, it was difficult to see, but it was interpreted as either £15,000 or £150,000 in a bank account. I have taken instructions this morning and, in fact, he has £150 in the bank account, although he tells me there is now £700 in it because he received some compensation. I just raise that in terms of whether there is to be any recovery in terms of the costs. As I understand it, the first £3,000 of any capital is to be disregarded and it would appear unfortunately that the appellant's --

LORD JUSTICE BEATSON: If the material is not in front of the court we are not going to be able to deal with that at this stage. In view of what you say, you must put written submissions with documentary evidence in support into the Criminal Appeal Office and the matter will then be determined on the papers.

[67]MISS HALSALL: I am grateful my Lord, thank you.

Cited in 2 later judgments