Latham, R v [2014] EWCA Crim 207

No: 2013/5599/C2[2014] EWCA Crim 207
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 30 January 2014
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
LADY JUSTICE HALLETT DBE
MR JUSTICE SILBER
MR JUSTICE LEWIS
Between
R E G I N ACrownv
Between
PAUL LATHAM
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 S McGarry appeared for AppellantMr B Berlyne (Solicitor Advocate) appeared for Crown
J U D G M E N T
[1]THE VICE PRESIDENT: Reporting restrictions apply to this judgment in relation to the complainant, whom we shall call "B". Background[2]B was born in 1983. He lived with his siblings and his mother at an address in Manchester. When the complainant was aged 17 or 18, the appellant and his civil partner (whom we shall call "Tom") went to live with them. This was a difficult time for B. He was coping with the aftermath of his mother's estrangement from his stepfather and from a sexual assault upon him by a man called Chadwick.[3]His mother was admitted to hospital for some weeks, during which time the appellant and Tom helped look after the children. Many years later in 2012 the complainant reported to his mother and then to the police that the appellant had indecently assaulted him during this period. He alleged this had happened in 2000 or 2001.[4]He claimed the incident had begun with his smashing a mirror in the downstairs bathroom. He said the appellant and Tom falsely accused him of taking drugs so he ran to the sanctuary of his bedroom. He was sitting on the bed crying when the appellant entered, sat next to him and gave him a cuddle. The appellant then asked him about the abuse by Chadwick. In particular whether he had enjoyed it, whether he had asked for it and whether he would do it again. According to B, the appellant then put his hand down the back of B's trousers, grabbed his testicles and attempted to touch his penis. B broke away from the appellant, ran from the bedroom and locked himself in the bathroom. He did not mention the incident at the time because it would have caused lots of arguments and he did not wish to destroy family relationships.[5]In interview on 22nd January 2013, the appellant denied the allegations and gave an account generally consistent with his evidence at trial. However, he made what Mr McGarry, who now appears on his behalf, accepted was a broad attack upon the character of what were to become the prosecution witnesses.[6]The Crown placed reliance on the complainant's account to his mother in 2012 and on the applicant's bad character. He had previous convictions for nine offences of making or possessing indecent images of children. Mr Berlyne, who prosecuted at trial and appeared before us, informed us during the course of this morning's hearing that despite the best efforts of the police and the CPS only the barest details were available of the convictions, such as the dates of the offences and the method of making or downloading the images.[7]On 3rd October 2013 at the Manchester Crown Court before Mr Recorder Wigglesworth QC, the appellant was convicted by a majority of 10 to 2 of indecent assault on a male. On 14th November 2013 he was sentenced to 10 months' imprisonment. He appeals against conviction with leave. Ruling on Character[8]We turn to the ruling at the heart of the appeal. It relates to bad character. On 30th September 2013 before any evidence was given, Mr Berlyne raised the issue of the appellant's previous convictions. He conceded that he had only limited detail of them and that there is a significant difference between viewing indecent images and committing sexual assaults. He was not able to provide any details of the age of the children involved in the images or of their gender. However, he argued that the evidence was nevertheless admissible under gateway (d) and (g) of section 101(1) Criminal Justice Act 2003.[9]Thus, he argued that the convictions were admissible to demonstrate a sexual interest in children and a propensity. The appellant had been asked in interview about his relationship with B and answered that he had never thought of him in a sexual way. The possession of the indecent images of children suggested he did have a sexual interest in children.[10]Further, he argued the appellant’s attack on the character of the witnesses justified admission into evidence of the appellant’s own character. The appellant had referred to B using cannabis, drinking to excess and being admitted to a psychiatric unit. He had accused B's sister, also a prosecution witness, of being vindictive and promiscuous and making false allegations against her own parents. He had also suggested she was mentally ill. He had made similar allegations against the complainant's mother and suggested that the witnesses were involved in a conspiracy. More than once he described them as telling lies. These attacks went beyond a robust defence and the jury should know the character of the man making them.[11]The defence advocate, at the time, Mr Thompson, opposed the application arguing that the offences dated back many years. They were too far removed from the current allegations and the Crown could not produce details such as age and gender of the children involved. Furthermore, he argued, as Mr McGarry has continued to argue before us today, that the complainant was not a child when the alleged offences were committed. If it was thought that that the attacks in the interview were inappropriate and irrelevant they could be removed by careful editing.[12]The Recorder considered the submissions and decided sensibly that he wished to hear how the witnesses gave their evidence before he made a final decision. He was invited to revisit the issue of bad character on 30th September because it would have an impact upon the editing of the interviews.[13]In his ruling, the Recorder noted that the appellant's repeated assertion in interview was that B was a liar and involved in a conspiracy falsely to accuse the appellant. The appellant also made more general attacks on the characters of all the witnesses. He agreed that this went beyond robust denial. He considered each of the essential questions in relation to propensity: i. Does the history establish a propensity to commit offences of the kind charged? ii. Does the history make it more likely that the defendant committed the offence? iii. Would it be unjust to rely upon the conviction? He concluded that the first two questions should be answered in the affirmative and the third in the negative. He decided that the evidence could be admitted under both gateways.[14]Ground of Appeal[15]Mr McGarry originally advanced three grounds of appeal. He has leave on only one: character. He has not renewed the other two grounds.[16]He submitted that the safety of the conviction has been undermined by the admission in evidence of the previous convictions. Without details as to the age of the children in the images or their gender, the Crown could not prove any kind of or sufficient nexus between the previous offences and the alleged offence. Furthermore, at the time of the alleged offence the complainant was most probably 18 years of age and therefore we are probably dealing with an alleged indecent assault on an adult male, not a child. Therefore, he argued, proof of an interest in children was irrelevant.[17]He took us to two decisions of this court which provide assistance on gateway (d). He referred to Weir [2006] 1 Cr.App.R 19 and R v D, R v P, R v U combined and reported at [2012] 1 Cr.App.R 8 in which the former Vice President of the Court of Appeal, Criminal Division, Hughes LJ, gave the judgment of the court and considerable guidance as to how to approach applications of this kind.[18]Mr McGarry placed particular emphasis on paragraph 19. However, before we come to paragraph 19, it is worthy of note that at paragraph 7, having posed the question as to whether or not the fact that a defendant collects or views child pornography is evidence that should be relevant to demonstrate a sexual interest in children, Hughes LJ said this:
" It seems to us that this is a commonsense question which must receive a commonsense answer. The commonsense answer is that such evidence can indeed be relevant. A sexual interest in small children or pre-pubescent girls or boys is a relatively unusual character trait. It may not be quite as unusual as it ought to be, but it is certainly not the norm. The case against a defendant who is charged with sexual abuse of children is that he has such an interest or character trait and then, additionally, that he has translated the interest into active abuse of a child. The evidence of his interest tends to prove the first part of the case. In ordinary language to show that he has a sexual interest in children does make it more likely that the allegation of the child complainant is true, rather than having coincidentally been made against someone who does not have that interest. For those reasons, we are satisfied that evidence of the viewing and/or collection of child pornography is capable of being admissible through gateway D. We emphasise that it does not follow that it is automatically admissible. There is nothing automatic about any of these bad character provisions. They require an exercise of judgment, specific, in every trial."
At paragraph 19, Hughes LJ repeated the court’s general conclusion that:
"... Possession of child pornography may, depending on the facts of the case, demonstrate a sexual interest in children which can be admissible through gateway D upon trial for offences of sexual abuse of children. It will not always be so. There may be a sufficient difference between what is viewed and what is alleged to have been done for there to be no plausible link."
[19]Mr McGarry placed considerable emphasis on the use of the words "for there to be no plausible link". He submits that this is the case here. The Crown cannot prove that this was a case of alleged sexual assault of a child; therefore proving that at some stage in the past the appellant had a sexual interest in children of unknown age and unknown gender is irrelevant. There is no sufficient (or plausible) link. In any event, this remains a matter of discretion and the judge was wrong to exercise his discretion in the way that he did. It had an adverse effect on the fairness of the proceedings.[20]As far as gateway (g) is concerned, Mr McGarry criticised Mr Thompson for not making it sufficiently clear to the Recorder how the defence was to be conducted. Mr Thompson failed to inform the Recorder that he did not intend to attack the character of the witnesses in the witness box. He simply informed him that he would not be adducing evidence of the witness's previous convictions and suggested that the interview could be edited. Had he done so, the Recorder may have come to a different conclusion. Mr McGarry further criticised Mr Thompson on the basis that he cross-examined the witnesses, without attacking their character, under the misapprehension that the interview was going to be edited in the way that he hoped.[21]In any event, Mr McGarry questioned whether or not the attack that the appellant had undoubtedly made upon the character of prosecution witnesses came within the provisions of section 106 Criminal Justice Act because it was not what he called “inculpatory”. If so, it was not relevant and it was not evidence. The provisions of section 106(c) did not apply. He tried to distinguish the decision of this court in PD [2012] EWCA 2163, in which the court observed that the accused's reaction to an accusation may well be highly relevant and admissible evidence and the defence could not insist that the interview be edited to avoid any adverse consequences. He did so on the basis that in PD the evidence was admitted to correct a false impression under gateway (f).[22]He also tried to distinguish the decision in R v Renda, Ball and others 2006] 1 Cr.App.R 24, a decision which undoubtedly relates in part to the use of gateway (g). He pointing out that in the holding for Ball it is clear that the reason the character of the accused was properly admitted was because he called a rape complainant a "slag". This might be relevant to his state of mind and therefore to the alleged offence of rape. Accordingly, Mr McGarry submitted that the interview could and should have been edited so that the attack upon the character of the prosecution witnesses was not in issue. Conclusions[23]The convictions were admitted under two gateways, both of which in our judgment were open to the Recorder.[24]We accept it would have been preferable had the Crown been able to discover more of the facts underlying the convictions before attempting to place reliance upon them, certainly so far as the age of the children was concerned. Nevertheless, as sparse as the details were, they were sufficient to be capable of establishing a propensity to have a sexual interest in children.[25]The appellant denied any sexual interest in B. B may have been technically an adult at the time of the commission of the alleged offence but he was an immature teenager the appellant (17 years older) had known since he was 9 years old. The appellant must have looked upon him as a child. A sexual interest in children was, therefore, potentially relevant and admissible.[26]In any event, the evidence was undoubtedly admissible under gateway (g). Where an accused attacks the character of prosecution witnesses in interview it is no answer for the defence simply to assert that the interviews can be edited. This appellant had made a significant attack upon the character of the witnesses. The attack was volunteered and went far beyond robust denial. The prosecution were entitled to put before the jury the appellant’s reaction to the accusation. The Recorder was obliged to rule on the basis the interviews would be admitted in full.[27]Further, we were not persuaded that the admission of the bad character evidence had such an adverse effect on the fairness of the proceedings it should have been excluded. The Recorder had a duty to conduct a fair trial but that means a fair trial as far as both the defence and the prosecution were concerned. He exercised his discretion carefully and fairly. Thereafter, he gave the jury clear and firm warnings as to the use they could make of the previous convictions. Accordingly, despite Mr McGarry's best efforts, we are not persuaded that the safety of the conviction has been undermined.[28]For all those reasons, the appeal must be dismissed.[29]We now turn to the renewed application for leave to appeal against sentence. It is submitted that whilst the length of the sentence cannot be criticised, a term of immediate imprisonment was unnecessary in the circumstances of the case. The sentence should have been suspended.[30]Mr McGarry took us through a number of aspects of the applicant's life including his medical history. He has suffered from severe depression and at the time of sentence was thought to be a suicide risk if imprisoned.[31]Mr McGarry accepted that this would have been an unpleasant incident for the complainant but emphasised it happened some considerable time ago. Fortunately, not much happened.[32]During the course of the years that followed the offence, the applicant has taken considerable efforts to rehabilitate himself and those efforts seem to have paid off. Before his conviction, he was in gainful employment, had a stable address and was in a stable relationship with a mature adult. Given the huge progress that he has made and the fact he has a home and employment to go to upon his release, Mr McGarry invited the court to reduce or suspend the sentence.[33]A consideration of the Recorder's sentencing remarks provides all the information one needs to explain why an immediate custodial sentence was necessary on the facts of this case. The Recorder noted the mitigation for example the fact that the applicant had been going through a difficult period at the time of the offence and since embarking upon a sex offenders programme had not re-offended. He also noted the contents of the various letters in which people spoke highly of the appellant. Nevertheless, he could not ignore the obvious fact that this was a complainant who was vulnerable and damaged. The appellant who was enjoying the hospitality of the family at the time knew that. The assault began with a reference to the previous assault. As a result, the impact upon the complainant must have been considerably greater.[34]In our judgment the Recorder conducted an impeccable sentencing exercise. It cannot be faulted in any way. We are delighted at the efforts that Mr Latham has made as far as rehabilitation is concerned and we hope that they remain successful. But for all the reasons given by the Recorder, 10 months immediate imprisonment was inevitable for an offence committed in these circumstances and in breach of trust.[35]Accordingly, the renewed application for leave to appeal against sentence must be refused.