M, v R. [2015] EWCA Crim 1848

[2015] EWCA Crim 1848Case No 201404861/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 15th October 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE McCOMBE
MR JUSTICE KENNETH PARKER
MR JUSTICE WILLIAM DAVIS
Between
R E G I N ACrownv
Between
M (A)
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Killen appeared for AppellantMs N Daley appeared for Crown
J U D G M E N T

LORD JUSTICE McCOMBE:

[1]On 8th September 2014 in the Crown Court at Liverpool, after a trial before His Honour Judge Trevor-Jones and a jury, the appellant was convicted of nine offences of sexual activity with a child, country to section 25(1) of the Sexual Offences Act 2003 and on 23rd September 2014 he came up for sentence before the learned judge. On that occasion he was sentenced on counts 3 to 9 inclusive on the indictment to an extended sentence of 16 years, comprising a custodial term of 12 years and extended period of licence of 4 years. On counts 2 and 10 he was sentenced to 2 years' imprisonment on each count concurrent, to be served concurrently with the sentences passed on the other counts. On 25th September the matter was re-listed for the sentence to be altered pursuant to section 115 of the Powers of Criminal Courts (Sentencing) Act 2000 because the maximum sentence permitted for offences contrary to section 25 of the 2003 Act is 14 years. The sentence was then varied to an extended sentence of 14 years rather than 16, with a custodial term of 12 years remaining the same but with the extension period curtailed to 2 years. Thus the final total sentence was an extended sentence of 14 years comprising the custodial term of 12 years and an extended period of licence of 2 years. The appellant was also ordered to pay the statutory surcharge of £120. However, in view of the dates of the offences of which the appellant was convicted having been between 25th April 2006 and 26th December 2009 it appears that the surcharge order was unlawful and for that purpose the sentence application was referred to the Full Court. We have considered that and we quash that part of the sentence.[2]The principle matter with which we are now concerned is that the appellant appeals against his conviction by leave of the single judge.[3]The underlying allegations and the cases of the Crown and defence respectively can be relatively shortly stated, since the sole ground of appeal relates to an isolated point of procedure concerning the replaying to the jury of a part of the video recorded interview of one of the complainants after the jury had retired to consider their verdicts.[4]The facts were these. The two complainants in the case were sisters whom we will call "R" and "G". R was born on 26th April 1994 and G was born on 12th July 1992. R was therefore 20 and G was 22 at the date of trial.[5]The appellant was a family friend of their mother (whom we will call "D") and began babysitting for the two girls and their younger brother. At that stage he was about 18 years old. R was about 5 or 6 and G about 7. A relationship began between the appellant and the mother, D, and he moved into the family home. To all intents and purposes thereafter the appellant became the girls stepfather and indeed R (but not G) referred to him as "Dad".[6]R moved out of the family home in about July 2013. Neither her mother nor the appellant approved of her moving out, with the appellant in particular voicing his strong disapproval. About at that time in August of 2013 the appellant married D and R, for her part, began a relationship with a man called S in whom she confided that the appellant had been behaving inappropriately towards her.[7]The Crown case was that from about April 2005 to April 2012, when R was aged between 11 and 17, the appellant had sexually abused her, initially by touching her vagina (counts 1 and 2 on the indictment), but, as the time went by, it was alleged he can to penetrate her vagina digitally (count 3) and then on her 13th birthday (26th April 2007) (count 4) the allegation was that the first occasion of full intercourse occurred. This continued, so the Crown alleged, until 2012, charges represented by counts 5 to 9 on the indictment.[8]In relation to G, the Crown's case was that he had also on occasions inappropriately touched her, in particular while sitting at the family kitchen table. When she was about 16 years old it was said that he had touched her thigh but this was not one of the counts that ended up on the indictment. However, on Christmas Day 2009, when she was 17, the appellant tried to kiss her, so it was said, put his hand into her pyjamas and touched her genitalia. At the time of this incident G told her boyfriend and in the years following she also told another female friend.[9]Events came to light in November 2013 when the girls' mother D logged onto G's Facebook account and saw messages between her two daughters relating to the appellant and what had been done. This led to her confronting both girls and confronting the appellant. The police were called.[10]At the trial R's evidence in-chief was given by the playing of the recording of her interview with police officers which took place on 26th November 2013. There is no doubt that during that interview she displayed distress at what she was relating. G also gave an interview, also recorded on the same day. Her evidence in chief was given in court but behind screens. There was evidence given by various persons to whom complaints had been made by one or other of the girls. The appellant, for his part, gave evidence denying any impropriety. He also called his two brothers and his sister to speak to the good relations they said they observed between the appellant, his wife, D, and the two girls.[11]The trial began on Monday 1st September 2014 and the judge summed up the case to the jury on the morning of the Friday of that week, 5th September. We have been told by counsel this morning that the speeches made by each legal representative was made to the jury on that morning.[12]No complaint is made by Mr Killen, who has appears for appellant and for whose submissions we are grateful, about any part of the summing-up which it is accepted was full, fair and proper. The jury retired to consider their verdicts at about 13.04 hours on that Friday and continued their deliberations until the court adjourned for the day at about 15.50 hours when the jurors went home for the weekend. The case reconvened on the following Monday, 8th September. The jury went into the retirement again at 10.41 hours as recorded on the transcripts. Then shortly before 11.29 hours, when they are recorded in the transcript as returning to court, they sent a note to

the judge asking this:

"Can we have a copy of [R's, the complainant's] transcript of the police interview? If not possible can we please see the beginning of the video?"
The jurors then returned to court at 11.29 and the judge asked them what they meant by "the beginning of her video". The foreman replied they wanted "roughly the first half of the interview". The judge then asked whether there was any aspect which they wished to cover specifically, and the foreman in his reply, again in a somewhat garbled from in the transcript, replied:
"It's again not such much the parts of the beginning of it was talking about family dynamic, which we don't need to see that bit. It's the initial sort of talking about ... the allegations in the first instance."
The judge then identified presumably with counsel the page on the transcript which seemed to be apposite and its timing. Ms Daley, for the Crown, confirmed that seemed to be the passage wanted. The replay then began. It seems there was some difficulty in getting the equipment to "fast forward" to the relevant point, but nothing seems to turn on that and the replay that was actually heard by the jury was from the start at 13.26 to 13.44 and 18 minutes or so.[13]Shortly before that "end" final time the jury were asked whether they had seen enough and the foreman asked to see "may be just a little bit longer ..." The jury was asked by the judge to indicate the right stopping point for the jury's purposes which the foreman duly indicated. After the replay of that part of the recording and after a short intervention by Ms Daley, which it is not necessary to repeat the judge said this:
"... in order that the jury do have a balanced picture now that they have seen again her repeat of substantial part of the interview, I am going to remind you also of the cross-examination."
The judge then proceeded to do just that, and gave a full summary of the cross-examination of R in respect of which no criticism is made on behalf of the appellant. The jury retired once more at about 12.00 noon. They returned with their unanimous verdicts at 12.42 hours, acquitting the appellant on count 1 but convicting on all the other counts. There was no intervention by either counsel, at the stage when the video had been replayed and the judge had gone through the cross-examination, that any more need to be said.[14]There is only one ground of appeal against conviction and it is this. Mr Killen says, as is correct, that after the replay of the part of the recorded interview of R the judge failed to give to the jury an express warning against giving the replay video evidence a disproportionate weight. He has submitted that this warning was particularly important because the evidence was "highly emotional and significant" in the context of the case as a whole and that failure to warn the jury about the evidence makes the convictions unsafe.[15]In his helpful submissions this morning Mr Killen has taken us to the relevant parts of the transcript which were replayed and has pointed out that the emotional part to which his submission referred lasted for some 7 minutes where the complainant was either crying or sobbing and was not looking directly at the camera.[16]Mr Killen's argument is based upon the judgment of this court, given by Lord Taylor CJ, in the leading cases of R v Rawlings & Broadbent [1995] 2 Cr App R 222. In those two conjoined appeals the court considered the circumstances in which it would be appropriate to permit the replaying of a video recorded interview of a complainant after the jury had gone round into retirement. No issue arises in the present case as to whether or not it was right to permit the replay, it is accepted that it was right in the circumstances to accede to the jury's request in that respect. However, if such a course is taken, in Rawlings the court set out a number of steps which should be taken as a result. There were three "requirements" with which the judge should observe:(a) The replay should be in court, with the judge, counsel and the defendant present, as of course occurred here;(b) The judge should warn the jury that because of they are hearing evidence in chief of the complainant repeated a second time, well after all other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear in mind the other evidence in the case. (That did not occur in our case and on that ground the appeal is now brought;(c) To assist in maintaining a fair balance the judge should, after the replay of the video, remind the jury of the cross-examination of the complainant from his notes, whether the jury asked for him to do so or not. (That requirement was met in this case.)[17]As can be seen from what we have outlined from the procedure adopted here the judge did not give the specific warning identified as requirement (b) but said simply that he would remind the jury of the cross-examination "in order that the jury do have a balanced picture".[18]Mr Killen argues that the failure to give the express warning in the terms indicated by Lord Taylor in Rawlings & Broadbent vitiated the procedure and renders the conviction unsafe, particularly in view of the fact that evidence that the jury saw replayed was given in circumstances where the complainant was displaying distress and emotion.[19]In addition to the case of Rawlings & Broadbent, we have been helpfully been referred by counsel to R v Saunders [1995] 2 Cr App R 313, R v McQuistan [1998] 1 Cr App R 139, R v Horley [1999] Crim LR 488 and R v Campbell [2014] EWCA Crim 870. In Horley, as the short Criminal Law Review report indicates, the court held that although the principles laid down in Rawlings & Broadbent were expressed in imperative terms, they did not lay down an inflexible practice which had to be followed in every case. It seems to have been said, as we can derive from the report, that it was said in Horley that the notion that if subsequent courts did not follow this court's advice on these matters precisely and to the letter the conviction was at risk of being quashed was not acceptable.[20]In that case while the judge had not permitted the replay of the recording that had been requested by the jury he had reminded them of the essential parts of the evidence, including cross-examination. The appeal on the ground that procedure recommended in Rawlings & Broadbent had not been followed was dismissed.[21]In Campbell, following a replay of parts of the recorded interview in which (in contrast to this case), as Mr Killen has pointed out, the complainant was described as "subdued and calm" the judge had reminded the jury of the appellant's evidence of the same subject but had failed to remind the jury of cross-examination and re-examination of the complainant. Counsel alerted him to this omission and the judge then gave the summary of that evidence. It appears, like this case, the judge did not give an express warning to the jury that they should not give the replayed recording a disproportionate weight. It is not clear whether or not some such comment as the judge made in this case was made in Campbell.[22]At paragraph 21 of the judgment in Campbell, Pitchford LJ, giving the court's judgment, on behalf of himself, Carr J and Sir Roderick Evans said this:
"While we agree that it might have been preferable for the jury to have received the explicit warning approved by the court in Rawlings, our conclusion is that on the facts of this case, it would have added little if anything to the jury's understanding of the need for balance and perspective. We are not persuaded that there is any reason to doubt the safety of these verdicts which, as we have said, arose from an impeccably fair and balanced approach by the judge himself."
We emphasise the words "the need for balance and perspective" which is the purpose of any procedure that is adopted in circumstances such as the present. At paragraph 19 of the same judgment, Pitchford LJ referred to the similar case of the R v F (Alan) [2005] EWCA Crim 3274, another case where the explicit warning was not given but the court dismissed an appeal because the conviction was nonetheless safe.[23]We note that in this present case that while the complainant displayed distress during the part of the interview that was replayed the judge had given a proper warning to the jury in the summing-up as to the approach to be taken by them in assessing such incidents of distress as had occurred in the interview. No complaint is made about the direction.[24]Mr Killen has supplemented his argument by saying that in comparison to other cases this was one where the warning about distress had been given some little time before the replaying of the video evidence and therefore it was important that the "disproportionate weight" warning be given to the jury.[25]We note however, as we have already, that neither counsel thought it absolutely compelling to give that warning, sufficiently, to cause them to rise to their feet at the moment in question. In cases such as this, it seems to us that the instincts displayed by counsel, who are faced with the issue at the time, are very helpful at indicating whether the procedure that has in fact been adopted is fair or not.[26]In our judgment, the procedure which was adopted by the judge was entirely fair in the context of the case. He summarised the remaining parts of the complainant's evidence after the replay of the recording and said that his desire was to give balance to the evidence once the jury had seen a repeat of the substantial part of the interview.[27]Like the court in Campbell, we do not find the failure to give the express warning, stated by the court in Rawlings & Broadbent to be one of the necessary "requirements", renders the convictions unsafe. The object, as Pitchford LJ said, was to achieve balance and perspective. The judge told the jury that is why he was doing what he did.[28]One must bear in mind the context as a whole. It is accepted that this trial was conducted entirely fairly, and procedurally impeccably, by this learned judge. The evidence as a whole was summed-up fully and fairly by the judge including a full resumé of the defence case.[29]In the circumstances, we consider that the convictions are safe and we dismiss the appeal against conviction. As already indicated, in respect of the matter in which the learned single judge referred the appeal against sentence, we quash the statutory surcharge order.