RG v R. [2015] EWCA Crim 715

[2015] EWCA Crim 715Case No 201400653 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
HH JUDGE TOPOLSKI QC
T20127910
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/05/2015
Before
LORD JUSTICE McCOMBEMR JUSTICE NICOLTHE RECORDER OF LEEDS (His Honour Judge Collier QC)(sitting as a Judge of the Court of Appeal (Criminal Division))
Between
RGApplicantREGINARespondent
Mr. Lithman QC.and Miss Charbit (neither of whom appeared below) for DefendantMr. Wilkins (instructed by Crown Prosecution Service) for ProsecutionHearing Hearing date: 17 April 2015
JudgmentLord Justice McCombe:
[1]On 13 January 2014 in the Crown Court at Woolwich, after a trial before HH Judge Topolski QC and a jury, the present applicant was convicted of five offences of sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003 (counts 2, 3, 4, 6 and 9 on the indictment). Two of those offences, counts 6 and 9, involving penetration of the complainant’s mouth or vagina respectively with his penis, were offences contrary to section 9(2)(a) and (b) of the Act. He was acquitted by the jury on three further counts of sexual activity with a child (counts 1, 7 and 8) and, on the direction of the judge, on one count of rape of a child under 13 (count 5).[2]On 28 and 30 January 2014 (the later occasion being a variation of sentence hearing), the applicant was sentenced to concurrent sentences of 18 months, 2 years, 3 years, 7 years and 8 years imprisonment on counts 2, 3, 4, 6 and 9 respectively, giving rise to a total sentence of 8 years imprisonment.[3]He now renews his applications for leave to appeal against conviction and sentence, following refusal of such leave by the Single Judge. At the conclusion of oral argument, we informed the parties that the application for leave to appeal against conviction was refused (for reasons which would be supplied in writing at a later date) and that the sentence application would be dealt with in writing at the same time. We now give our reasons for refusing leave to appeal against conviction and deliver our judgment on the sentence application.[4]The background facts of the case and of the cases of the Crown and defence respectively were as follows.[5]The complainant was the applicant’s sister-in-law, L, who was born on 7 May 1992. The offences were alleged to have been committed upon her between May 2004 and May 2008 when she was aged between 12 and 15 years old. There is a lengthy history to the matter of which we shall say more below, but mention at this stage that, when the applicant was arrested in 2011, L was by then 19 years old. The applicant’s trial took place in December 2013 and January 2014 by which time L was 21 years old.[6]L has three older sisters (whom we shall call “R1”, “R2” and M respectively). They were aged 39, 37 and 33 by the time of trial. L and M had been particularly close as siblings. In 2004, M entered a relationship with the applicant and, after a short courtship, they were married at a civil ceremony in November of that year. (They were later to have a religious ceremony and a reception at a well-known historic venue in July 2006, an event to which we shall return.) The newly married couple moved initially into the old family home which was in the London area while the rest of the family found a new home in a different part of the metropolis. However, in early 2005, the applicant and M moved once more to a different property which was close in proximity to the rest of the family in their new home. In the same year, the eldest sister, R1, moved to Berkshire.[7]L remained close to M emotionally and saw her most days. She often stayed overnight at the matrimonial home of M and the applicant. The Crown case was that the offences had occurred sometimes at the home of the applicant, sometimes at L’s home and at other times elsewhere. It was said that the offences progressed from non-penetrative activity, to oral penetration with the penis and to full sexual intercourse.[8]The indictment was framed as follows. Count 1 was said to be the first occasion on which inappropriate conduct had occurred. L said that she had been staying at the applicant’s original matrimonial home, the old family home. She had been sleeping downstairs on a sofa when the applicant came downstairs, got under the duvet with her and laid on top of her for a few minutes, after which he left without speaking. The applicant was acquitted on this count. Counts 2 to 4 were framed as specimen counts alleging touching of the breasts (count 2), touching or stroking the vagina, first over then under clothing (count 3) and finally causing L to touch the applicant’s penis (count 4). On all these specimen counts the applicant was convicted. Count 5 was framed as a specific charge in respect of the first alleged penile penetration of L’s mouth. The applicant was acquitted on this count at the close of the Crown case on the direction of the judge. Count 6, on which the applicant was convicted, was a specimen count of further penile penetration of the mouth. Count 7 was framed to represent a specific incident when the applicant was alleged to have performed vaginal intercourse upon L for the first time. Count 8 was a charge of sexual activity, by way of a number of acts of intercourse which were alleged to have occurred at the July 2006 wedding reception. The applicant was acquitted of this charge. Count 9 represented continuing alleged incidents of sexual intercourse occurring at times at L’s home, when the applicant was said to have visited L surreptitiously at night time at her home by accessing her bedroom by scaling a garden fence, and proceeding from there onto a roof and through a window. There was one occasion, said L, when activity was occurring at the applicant’s home when the couple were almost discovered by M, and L was forced to make an escape out of a bedroom window and to cling to a satellite TV dish on the roof for a significant time, before climbing down and departing via a neighbouring garden. Another incident related to an occasion when L’s mother had found L hiding in a wardrobe at the applicant’s home. Further such incidents were alleged to have occurred at a portacabin at a nearby airfield. The applicant was convicted on this specimen count.[9]L had given her original account to the police by way of recorded interview. However, at trial, she gave evidence in court but behind screens in the customary fashion.[10]The applicant denied any form of sexual activity with L.[11]Of significance in the case was that, following a trial in the Crown Court at Snaresbrook, before HH Judge Freeland QC and a jury, the applicant was convicted, with two others of offences of kidnap, false imprisonment and assault occasioning actual bodily harm in the context of a business dispute. The applicant was sentenced to a total term of 7 years imprisonment. On 6 August 2010, on appeal to this court (Hughes LJ and Rafferty J (as they then were) and Maddison J), the applicant’s convictions were quashed and a re-trial was ordered. At the re-trial in 2011, the applicant was convicted of two offences of assault occasioning actual bodily harm only. The resultant sentence did not involve his re-entry into custody, from which he had been released following the successful appeal from the initial convictions.[12]L gave evidence that, during his incarceration for these unrelated offences between June 2009 and August 2010, the applicant would write her letters professing his love for her and fantasising about her sexually. One such letter, she said, had been found by L’s mother under L’s pillow. The mother kept it and it was produced in evidence at the applicant’s trial on these charges.[13]The applicant’s evidence about this letter was that it had been written by him to his wife and must have been obtained by L when she visited their house to collect post for M, while M was at work and/or living for a time at a friend’s flat in North West London. L denied having done this. However, for the defence, M gave evidence that the letter produced had been sent to her and that the applicant had written other similarly sexually explicit letters to her while he was in prison. A plumber was called for the defence to say that he had seen L collecting post from the home of M and the applicant. For her part, L denied having keys that would permit her entry to the property and she denied collecting M’s post.[14]In his police interview, the applicant had accepted that the letter produced at trial had been written to L, but said that he had written to her under coercion from her, as she had always been infatuated with him and she threatened to tell M that they were having an affair. He had said that L was also blackmailing him and he had been under the influence of drugs in prison when the letter was written.[15]In his evidence the applicant explained that what he said in his interview was said because he had failed to read the letter properly and thought it was another letter which he had written to L.[16]The Crown called evidence from a friend of L, a girl called K, who said that she had become concerned about the nature of L’s relationship with the applicant. L denied any improper relationship at that stage.[17]L’s mother gave evidence that she had caught L and the applicant in compromising situations, including one instance when she had found L hiding in a wardrobe at the home of M and the applicant at 8.30 a.m. one morning on a day when M was absent from home on a course. The date of this incident was unclear from the evidence at trial and the jury were directed, in response to a specific question by them about the date, that there was no evidence on the point, save that it occurred on an occasion after March 2007. The applicant’s wishes to adduce fresh evidence, seeking to provide more precision about this date. We return to this application when we address the individual grounds of appeal.[18]Another friend of L, JG, gave evidence that L had told her that she was “in a relationship” with her brother-in-law and she said that she had witnessed them being very “flirty and giggly” together at a party.[19]The applicant gave evidence in his own defence and denied each and every allegation of sexual impropriety towards L. He suggested that the allegations may have been made by L to secure compensation as a victim of crime or out of frustration at not being able to be with the applicant with whom, he said, she was infatuated, or perhaps to obtain sympathy from the family with whom she had fallen out because of a relationship with a different man of whom the family did not approve.[20]The applicant said it would have been physically impossible for him to gain access to L’s bedroom in the manner alleged by her. With regard to count 1, he said that L had not slept on a sofa at his home; she had always been accommodated in an upstairs room. As for count 8, the alleged acts of intercourse would have been impossible, he said, in view of him being a focus of attention at his own wedding reception; he called his best man in support of that evidence. He said that L had never been to his portacabin office at the airfield to which she had referred as the scene of some of the incidents.[21]The applicant, in his evidence in chief, dealt with his conviction at the Snaresbrook trial(s). Both at the first trial and in the earlier stages of the second proceedings, after his successful appeal, the applicant had sought to advance a defence of alibi, maintaining that he had not been present at any of the alleged offences. Later in those proceedings he admitted presence at the time of the alleged assaults and he was convicted of them. At the trial of the present case, he was constrained to admit that he had lied on oath at his first Snaresbrook trial.[22]With regard to the letter that had been produced, he said that he accepted writing a letter to L from prison (but not the letter ultimately produced in evidence). The letter which he had written had been inappropriate but it had not been not as explicit as the one produced. He said that he had written to L because she had threatened to “scupper” his alibi defence which then still lay at the core of his defence to the Snaresbrook trial and his pending appeal. The applicant said that L had threatened to say that she had seen the applicant thoroughly cleaning his motor car on the day following the incident in question.[23]The applicant was cross-examined by the Crown to the effect that he had sought to procure M to provide false evidence in support of his alibi in the earlier trial and that he was, in effect, doing the same thing in the present proceedings. The applicant responded that M’s evidence had not been direct alibi evidence in the Snaresbrook case, because she had said she could not be sure that the applicant was at home at the relevant time, but simply that he was likely to have been so, because their son had only recently been born.[24]An issue is now raised, in the proposed grounds of appeal, as to the nature of M’s evidence at the earlier trial and its potential status as bad character evidence: we return to this.[25]R1 gave evidence on behalf of the applicant saying that in 2006 she had informed police of inappropriate behaviour on the part of L, but that the police had not taken a statement from her. She said that she had had concerns that L was being abused by their parents and not by the applicant. She was cross-examined to the effect that she had correctly identified that L was being abused but had failed properly to identify the perpetrator.[26]On this aspect of the case, the judge directed the jury that there was no evidence that R1 had made any allegations at all against the applicant in 2006 and that the matter was taken no further at that time. The judge told them that the fairest course was to work on the basis that R1 made no allegations against the applicant in 2006 or at any other time.[27]M gave evidence for the defence that she had never seen or suspected anything inappropriate between L and her husband. She said that L had had access to her home and to her correspondence and that the exhibited letter was typical of letters that the applicant had sent to her while he was in prison. She said that the matters referred to in that letter related to her and not to L.[28]After a ruling by the judge, M was cross-examined to the effect that she had given false evidence on her husband’s behalf in the earlier proceedings against him and was doing so again. She denied this, saying she had not been an alibi witness. This aspect of the case also gives rise to a proposed ground of appeal.[29]We turn now to the grounds upon which Mr Lithman QC and Miss Chabrit for the applicant (neither of whom appeared below) seek to challenge the safety of the applicant’s convictions.[30]First, it is argued that the jury’s verdicts were inconsistent in rejecting each specific allegation of sexual behaviour and yet convicting on the specimen counts.[31]Secondly, it is said that it is to be inferred that the jury looked for independent evidence in support of the complaints and did not convict where it was absent. Thus, the applicant’s account as to such supposed supporting evidence had to be fairly left to the jury, which in the case of the exhibited letter it was not.[32]Thirdly, the judge wrongly allowed admission of evidence of bad character on the part of M, by way of the cross-examination as to her role in the Snaresbrook case.[33]Fourthly, it is said that the judge wrongly allowed evidence of a propensity, on the applicant’s part, to serious violence in permitting cross-examination as to possible blood-staining of the applicant’s car after the incident leading to the Snaresbrook trial and the use of a blow torch in the course of it.[34]Fifthly, it is submitted that the evidence of R1’s complaint in 2006 was allowed to be adduced and to be used by the Crown to invite the jury to conclude that evidence of that complaint supported its case that L had been sexually abused. The applicant now seeks disclosure in relation to underlying material relating to that complaint.[35]Sixthly, it is submitted that the judge wrongly combined a direction to the jury as to adverse inferences that might be drawn from the applicant’s failure to mention certain facts in interview with a direction about lies said to have been told by him in the course of his evidence. It is said that this exaggerated the applicant’s failures to give a full account in interview.[36]Seventhly and eighthly, it is argued that the judge wrongly failed to discharge the jury, firstly when it emerged that one of the jurors knew M; secondly, because of failures on the part of the police officer in the case to pursue lines of enquiry relating to R1’s 2006 complaint; and thirdly, because of the revelation of circumstances relating to the Snaresbrook trial (the blood and blow torch evidence).[37]We turn to these proposed grounds which we will address not necessarily in turn.

Inconsistency of verdicts, Ground 1

[38]Mr Lithman submits that it was logically inconsistent for the jury to acquit the applicant on three counts in respect of which L had given direct and specific evidence but to convict on counts which were entirely general and, in some respects, involved allegations of an inherently incredible nature.[39]It is submitted that the present case is of the same nature as R v S [2014] EWCA 927 in which this court allowed an appeal, on the basis of inconsistency of verdicts, where the jury had acquitted the appellant of four specific sexual offences, but had convicted on two sample counts alleging further unparticularised conduct on other occasions. On the facts of that case, the trial judge had directed the jury that to convict on the sample counts they would need to be sure that, at least one occasion other than those referred to in the specific charges, the appellant had raped the complainant. However, he gave no further direction as to the impact on the sample counts if the jury were to acquit on the specific counts. In paragraph 27 of the judgment, given by Macur LJ (for herself, Blake J and Stuart-Smith J), this was said:
“There was no objection taken to the usual direction that the jury should consider each count separately, and nor could there be, but this was a case where, standing back from the fray, we conclude that there should have been an explicit warning to the jury of the impact of its not guilty verdicts on specific counts vis a vis the sample counts. That is, we cannot see that a reasonable jury could, on the paucity of the stand alone evidence concerning the add on sample counts, be sure of guilt in relation to them if they rejected the specific events. This factor in itself would render the verdicts unsafe quite apart from inconsistency.”
[40]Mr Lithman relies strongly upon that passage to contend that, in this case, a specific direction of a similar nature should have been given as to the impact on the specimen counts of any “not guilty” verdicts on the specific counts.[41]As is pointed out in Archbold 2015 at paragraph 7-70, the general rule is that an appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by the appellate court, for example if the court is satisfied that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the same conclusion. The principle is (with respect) neatly put by Toulson LJ (as he then was) in Cross [2009] EWCA Crim 1553 when he said that verdicts were inconsistent where “they cannot plausibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair minded ordinary people”.[42]The examination of the argument on inconsistency, therefore, must focus on the nature of the allegations and the bearing which one count has upon another in the circumstances of each case. In the case of specific allegations on the one hand and specimen charges on the other, again one has to see what bearing each type of allegation has upon the other. As Nicol J pointed out in argument, the court in S (supra) was not saying that, in a case where one has a mixture of specific and specimen charges, if there are acquittals on the specifics the specimens must inevitably be rejected. All depends on the nature of the case.[43]In S the case was one alleging specific sexual incidents, with two specimen charges as “add on sample counts”: see again paragraph 27 of the judgment. In contrast in the present case, the allegation was of continuing and escalating sexual offending. Two of the specific charges were advanced as the first incidents of oral and vaginal penetration respectively. The incident(s) at the wedding reception were other examples. The sample counts were far from “add-ons”; they were of the substance of the case, with the specifics as illustrations of the activity alleged.[44]Mr Lithman put it to us that the confusion of the jury was illustrated by a question asked by the jury in the course of their deliberations. The question was this: “Question: Does count 7 have to relate to the circumstances described by [L] during the first intercourse or can it relate to any circumstances of first intercourse, if intercourse happened between [L] and the defendant?”…[45]In our judgment, the manner in which this question was posed and answered reveals that there was no such confusion and that, in the answer supplied after careful debate with counsel, the jury received the direction as to what their approach should be to any verdict of acquittal on the specific charges when they came to consider the specimen counts. The answer given by the judge (after reminding the jury of a more general direction given by him to them previously) was this:
“Now, on the way that this count has been put by the prosecution, this count relates to the first time that there was penile penetration alleged by the defendant of [L’s] vagina. This is the incident she spoke of when he is lying on his back, pulls her trousers down and so on. You will remember Ms Ascherson’s point about, think about that position as the first time [L] is losing her virginity. If you are not sure that that event occurred as [L] described it, then he is not guilty of count 7. If you are sure that at some point there was, as the prosecution allege, ongoing and continuing sexual intercourse -- that is to say, to be specific, penile penetration; penetration by his penis of her vagina – then, of course it has to have started at some point, and that allegation of the fact that there was sexual intercourse, and was continuing and ongoing, is reflected, is it not, Mr Foreman and ladies and gentleman, in count 9, which is the specimen count about which I directed you, of course: that in order to convict of that specimen count, you would have to be satisfied that the activity alleged – that is to say sexual intercourse – happened at least once during that period of time. So, if you are not sure about the event that [L] described as the moment she lost her virginity happened – that is what count 7 is about – he would be not guilty, but of course it still means that you still must go on and consider the fact that she does say that there was full sexual intercourse – to put it a slightly different way – and that was continuous and recurring. That is reflected in your consideration of count 9. I hope that helps. I see lots of nods. Is that all clear? JURORS: Yes.”
JURORS: Yes.”[46]If the jury had been confused, as opposed to diligently inquiring, in posing their question, they received an answer tailored to the case before them which was comprehensive and fully comprehensible.[47]Thereafter, as Mr Wilkins for the Crown puts it in his Respondent’s Notice (paragraph 5), the verdicts show a clear and logical pattern in convictions on the specimen counts, where there was evidence to support the generality of L’s account of an ongoing sexual relationship, but acquittals where there was no such supporting evidence from the defendant or other witnesses. There was, therefore, it is argued, no logical inconsistency.[48]As is submitted by the Crown, there was supporting evidence of L’s general account, not least in the letter from prison (which the jury were fully entitled to find was sent by the applicant to L, rather than to M) and from the observations of L’s friends who gave evidence. We return below to the application to adduce fresh evidence, but we consider that the incident of L’s mother finding her in a wardrobe at the applicant’s house was also clearly capable of supporting a finding that there was a surreptitious relationship between the applicant and L, even if the date of this incident was shortly after L attained the age of sixteen.

The Letter, Ground 2

[49]We do not accept the criticism, levelled in ground 2 of the proposed grounds of appeal, that the judge failed properly to direct the jury upon the most important feature of the independent evidence, namely the letter said to have been sent by the applicant (while in prison) to L. For our part, we do not accept that criticism. It seems to us that the judge’s summing up of the evidence was clear and comprehensive. He dealt with the subject extensively, as recorded on pages 12 to 17 of the transcript III (a). The fact was that the applicant had given differing accounts of the proposed recipient of the letter and in explanation of its contents. The judge reminded the jury both of the contents of the letter and of the applicant’s explanations of the various inconsistencies. This was done fully and fairly. If the jury took an unfavourable view of the applicant’s explanations, that was a matter for them and they were fully entitled to such a view.

Fresh Evidence, “Ground 1(b)”

(b) ”

[50]It is convenient at this stage to turn to the application to adduce fresh evidence. We have already mentioned the evidence of L’s mother about finding her daughter in a wardrobe at the applicant’s home, early one morning when the applicant’s wife, M, was away from home on a course. During their deliberations the jury asked a question about this incident which was as follows:
“The incident where the accuser [L] was found in the cupboard wardrobe of the defendant’s house, is it possible to confirm the timing (date) of this event?”
[51]On the evidence then available, it was clear that (on the applicant’s case) the incident had occurred when he was alone at the house, looking after his son who had been born in March 2007. L reached the age of 16 in May 2008. The applicant wishes to adduce new evidence that the only relevant course would have been one held in November 2008 when L was over 16. In a new statement, M refers to a certificate from this course (dated 17 November 2008) which she says was only discovered after the trial in the course of moving home.[52]For the purposes of this application, we have considered this new material. However, we are not satisfied that it would afford any ground for allowing the appeal (section 23(2) (b) the Criminal Appeal Act 1968). It seems to us that the incident in question was not one in respect of which L gave direct evidence of having engaged in sexual activity with the applicant. The evidence came from L’s mother and not from L herself. It was merely some evidence of a clandestine presence of L at the applicant’s house very shortly after she reached the age of 16.[53]In our judgment, of far more significance must have been L’s own evidence of the multiple incidents of varying sexual activity at a number of places. We do not consider that, if the fresh evidence were to be found to move the “wardrobe” incident outside the indictment framework it would be sufficient to nullify the evidence of sexual activity as a whole and so render the convictions arguably unsafe.

Bad Character, Ground 3

[54]Under this heading, it is argued for the applicant that “evidence of an allegation of perjury/perversion of the course of justice was wrongly admitted in respect of [M] under section 100 CJA 2003. She gave evidence on behalf of the applicant”.[55]It will be recalled that a significant plank of the Crown case was the letter said to have been written by the applicant, while in prison, to L. Both the applicant and his wife, M, maintained that the letter had been written by him to her and not to L, and that the letter must have been appropriated by L in the course of collecting post from their home.[56]Inevitably, in explanation of his case with regard to that letter and of his admission to the police in interview of having written it, it would become necessary to go somewhat further into the circumstances of the Snaresbrook trial, its outcome, his incarceration, his appeal to this court and the re-trial and its result. Part of that case at this trial was that he had once written an inappropriate letter to L while in prison, but it was not this letter. He had been confused in his interview. He said in evidence that he had written the letter because he was under threat from L that she would “scupper” his defence, and with it his pending appeal, by undermining his alibi. The alleged threat was that she was saying that she would tell the police that she had seen him cleaning his car after the incident giving rise to that prosecution, by implication to remove scientific traces of his involvement in the incident.[57]Perhaps not surprisingly the applicant was asked in cross-examination whether M was to be called to give evidence in the present proceedings. The suggestion was made that that M had given false evidence at the Snaresbrook trial in support of a false alibi defence and that he was proposing to call her again in support of a false case in this matter. The applicant admitted that he had himself given false evidence in his earlier trial, but he said that M had given evidence to the effect that she was not sure where the applicant had been at the relevant time, but she would have expected him to be at home in view of the very young age of their child. This was not, therefore, alibi evidence at all.[58]An argument was raised in the appeal from the Snaresbrook convictions that the judge had not adequately directed the jury as to the requirement for the Crown to disprove an alibi, rather than for the defence to establish its truth. However, the court was not convinced that M’s evidence had been alibi evidence as such and considered that the jury had been adequately directed: see paragraph 63 of the judgment. We are told (in paragraph 65 of the skeleton argument) that, in a part of the proceedings not transcribed for us, the judge directed the jury that all that was relevant at that stage was whether the applicant had misled the Snaresbrook jury and whether he called his wife to give evidence in support of that untrue case. It is submitted that the judge should not have allowed the cross-examination to venture as far as it did.[59]For our part, we accept Mr Wilkins’ written submission that in cross-examination of the applicant, the state of mind of M in giving evidence at the Snaresbrook trial was not the material question: even if M did not know her evidence was either untrue or misleading, the case being put was that the applicant was prepared to call his wife to support a false case that was being mounted by him.[60]Later, when M herself came to give evidence, the Crown made formal application to cross-examine her in relation to her evidence given at the earlier trial. The judge acceded to this application to a limited extent. As the judge stated in his ruling, in her evidence in chief M had given important evidence in support of the defence case, in particular in support of the case that the exhibited letter had been written to her and not to L. The Crown wished to attack M’s credibility by reference to her alleged knowledge of the falsity of the applicant’s case at the Snaresbrook trial, in support of which she had given evidence.[61]The judge found that the credibility of M was an issue of substantial importance in the case: section 100(1)(b) of the Criminal Justice Act 2003, and he referred to S (Andrew) [2006] 2 Cr App R 31. The defence sought to prevent the cross-examination of M about her evidence at Snaresbrook. The judge’s conclusion was this:
“So it does seem to me, balancing matters as best as I can, that it is an avenue that Mr Wilkins is entitled to explore but it must be explored with great care. It must be explored with economy and with discipline, all facets I have no doubt that Mr Wilkins is able to deploy, having demonstrated that ability already in this case. The questions will have to be limited and reduced to the bare minimum to ensure that he can legitimately explore those matters that he wishes to explore that I have permitted him in this ruling so to do, but to avoid, and I shall be vigilant to avoid, any question that could lead to a re-litigating of the Snaresbrook case. After all, if one considers the matters in this way: What is it that the Crown want to be able to say to the jury in a closing speech in this trial? It is terribly simple. The evidence that [M] has given is false. She is giving it at the behest and request of her husband who is putting forward a false case. It is no coincidence, the Crown could submit, or would submit no doubt, that that is precisely what has happened when this defendant on another occasion, in another context, in another court, in another case has faced the same serious predicament; that is to say, he has perjured himself and called his wife to support his perjury. The point is as simple as that. That is the issue that is of importance for this jury to consider in the context of this difficult and troubling case and it is, therefore, for those reasons that I permit the limited cross-examination that I have sought to outline in this ruling.”
[62]It is submitted that the judge should not have permitted this course.[63]In the end, the judge told the jury in his summing-up that the applicant’s admission of having given false evidence at his first trial was material in only two respects: first, it was relevant to the submission of the Crown that the applicant was prepared to manufacture evidence when it suited him, and, secondly, to whether he was giving truthful evidence on the present occasion.[64]As for M’s evidence,

the judge said this to the jury in his summing-up:

“Finally, let me add something here, because it is convenient that I should do so, and it is a direction with regard to [M’s] evidence in this respect. You do not know enough about the trial in 2009 to form an opinion as to whether she did give false evidence in support of her husband at the trial. Therefore, the direction I must give you about her evidence before you is that what happened at the earlier trial, as far as she is concerned, cannot and does not provide you with any assistance in deciding whether you should accept or reject the evidence she has given you at this trial. I hope you follow that. Again, it will be with you in writing at the end of my summing-up. ”
[65]Somewhat later, with regard to M’s evidence,

the judge said this:

“She said, [M], that she was not an alibi witness at his first trial. All she was called to say was that at the time of the alleged incident in 2007, their baby was just weeks old and that she would have expected [the applicant] to have been home by a certain time in the evening. She did not accept that she knowingly gave false evidence on his behalf in the trial at Snaresbrook and that she was doing the same in this case. She certainly rejected that she was doing the same in this case and giving false evidence on his behalf. As she put it: “The first trial was to do with when he was at home. This is all about my family and my sister, two completely different situations.”
I have, of course, already given you a direction regarding what your approach must be to the earlier trials as far as [M] is concerned. It assists you in no way, one way or the other.”[66]For the applicant, it is submitted that these directions demonstrate that the cross-examination of M should not have been permitted and had proved to be merely prejudicial. In our judgment, this is a criticism with the benefit of hindsight. Reading the judge’s ruling as to the cross-examination of M, it seems to us that he fairly, rationally and validly explains the potential relevance of the cross-examination proposed as it then appeared. However, when the evidence was complete, the judge took the view that he did of M’s evidence as a whole, namely that what happened at the earlier trial could not assist the jury in deciding whether or not they should accept or reject her evidence at the present trial. In the face of that clear ruling on two occasions, we do not consider that the permission given to the Crown to explore the point renders the convictions arguably unsafe.

Adverse Inference (Criminal Justice and Public Order Act 1994, s.34)/Lies, Ground 6

[67]The judge gave two directions to the jury covering the question of matters not mentioned to the police in interview and lies alleged to have been told by the applicant in his evidence. The first point was directed to the applicant’s failure to mention in interview the threats said to have been made to him by L if he did not write to him in affectionate terms. The second matter was that in the interview the applicant told the police that he had sent to L the letter that came to be exhibited at trial whereas at trial he said sent her an entirely different letter. The Crown said that this was a lie.[68]The judge gave to the jury directions in standard form as to the approach to be taken to lies said to have been told by the defendant and as to their entitlement to draw an adverse inference against the applicant in respect of his failure to mention when questioned a matter later relied upon in court.[69]It is argued for the applicant that the giving of these two directions, said to be essentially on the same point about the letter, was in effect inviting the jury to make two separate adverse findings arising out of the same issue. It is not argued that the content of either of these directions was wrong in form.[70]It is quite clear to us that the judge was entitled to give the section 34 direction. The applicant had clearly failed to mention the important point as to the alleged threat said to have been made to him by L, when he was interviewed. There could be no doubt that that such a direction was justified in these circumstances. Again, it is clear that the applicant may well have lied about what letters he had sent to L from prison. The giving of this latter direction is very much a matter for the judge’s discretion. Judges will always take into account submissions from counsel as to whether such a direction is required or is desirable. In this case, the judge had prepared written directions which he must have shared with counsel. Yet there was no objection from the defence about the proposed directions.[71]In our judgment, it is not possible on appeal to contend that the judge was wrong in taking the course that he did. Some judges may not have given the dual direction, for the type of reasons advanced for the applicant here, but we consider that it is impossible to say that this judge was wrong in doing so. Certainly, it is unarguable that the safety of the convictions is affected by the directions having been given.

Discharge of the jury, grounds 4, 5, 7 and 8

[72]It seems to us that the remaining grounds of appeal hinge upon the question whether or not it is arguable that the judge erred, on two separate occasions, in failing to discharge the entire jury.[73]The first issue about this (ground 7) arose on 19 December 2013 when it appeared that one of the jurors was acquainted with M. This was made known when M was called as a witness and the previous acquaintance became apparent. The judge made the decision to discharge the single juror and to continue the trial with the remaining eleven.[74]We do not have a full transcript of what was made known to the court about the nature of the connection between the juror and M. However, as appears from the brief comments made by the judge in explanation to the juror for his discharge, the juror informed the court of “the connections” which the judge described as “somewhat historic”, but with “an ongoing connection”. The juror told the judge that he did not feel comfortable when he appreciated the connection: see transcript for 19 December, p.5F-G.[75]We are told that the defence had applied for the entire jury to be discharged, but that the court log shows that the relevant submissions were short and lasted for no more than a minute. It is clear from the judge’s ruling that he had decided that it was safe to continue with the remaining eleven jurors. The trial had begun on 11 December 2013 and a considerable amount of evidence had been given before the problem was appreciated.[76]We are informed in materials presented to this court on behalf of the applicant that the relationship between M and the juror was this. It is said that M had had a relationship, prior to her marriage, which had ended acrimoniously. M’s previous boyfriend had been the brother of her best friend, a lady whom we’ll call S. Following M’s split with the boyfriend, her relationship with S had also ended. S’s long term partner was the brother of the juror.[77]Concern is now expressed that the juror might have expressed views to his colleagues based upon what he knew about M’s family and/or his dislike for M. It is submitted that, in the circumstances, where such a juror would without doubt have been excluded had the acquaintance been known before the trial started, the whole jury should have been discharged when the connection was finally appreciated.[78]We have no hesitation in rejecting this submission, which (as it seems to us) is based upon pure speculation as to what might have passed between jurors before the problem arose. There is no evidence at all to support the suggestion that is now sought to be raised by the applicant. In our judgment, the judge dealt with the matter entirely properly at the time and there is nothing whatever to cast doubt on the integrity of his decision, either at the time or with the benefit of the hindsight presented by the applicant.[79]There was a further application to discharge the jury, which the judge rejected for reasons given in a ruling of 10 January 2014 when the jury were in retirement. We have no transcript of oral argument on this application, but we have been supplied by counsel for the applicant with the written argument of the defence in support of the application. This document (as so often the case with written arguments in criminal cases) is regrettably undated, but, as appears from the judge’s ruling, it was supplied to the judge on the last day before court resumed after the Christmas/New Year break in 2013/2014 (Transcript for 10 January 2014, p. 6B).[80]The application was made first, on the basis that prejudicial material underlying the kidnap/assault allegations in the Snaresbrook trial had wrongly gone before the jury (ground 4), and secondly, that there had been failure to disclose material relating to a complaint by R1 to the police in 2006 (ground 5).[81]Dealing first with the issue concerning the Snaresbrook case, it will be recalled that the applicant’s evidence at trial was that he had written an affectionate and explicit letter from prison to L (not the letter adduced in evidence by the Crown) because he was under threat from L to disclose to the police material prejudicial to his alibi defence in that case. The issue in the present case was, as the defence put it in their written argument to the judge (paragraph 3), whether L had seen the applicant with his car, after the incident, in incriminating circumstances. The Crown say that questions were asked about the state of the vehicle after the event to illustrate that there was nothing memorable about it which would have caused anyone to be able to base any such threat as the defence were contending was made by L to the applicant. It seems that in asking the questions Mr Wilkins had referred to the use of a blowtorch and had asked whether there was blood spatter on either the applicant or on his car.[82]It was submitted by the defence that this material, suggesting that there had been a blowtorch used and that there had been blood staining caused in the incident, was so prejudicial that the jury should have been discharged.[83]The judge rejected this submission. His ruling on the point was this:
“… at the time of the cross-examination of the defendant – which viewed perhaps in retrospect was probably unnecessary – I did give the jury a short direction, as Ms Acherson accepts that I did in her written submissions. The submission here is that the facts of the earlier trial and the nature and extent of the violence used is irrelevant. I agree. It is also submitted that it is “potentially prejudicial.”
It may be, but quite simply insufficiently so, in my judgment, to give rise to the discharge of the jury. The remedy here, if one be needed at all, is a firm and clear direction to the jury as to the very limited extent to which the events at the earlier trial are relevant to the issue of credibility that the jury will have to resolve in this trial. The line of questioning in relation to the so-called blood evidence is described as “highly prejudicial”, and incapable of satisfactory directions to correct what is described as the clear picture given to the jury of “an extremely violent man in a bloody and violent incident.” This jury is not remotely concerned with the nature of the injuries found proven against this defendant, if any, either in 2009 at the first of his trials or in 2012 at his retrial. The allegations made by the defendant’s sister-in-law in this case is of a non-violent and mutually – and I must put the word in parenthesis – consensual relationship over four years. Again, the remedy here, in my judgment, is not discharge but rather an appropriate direction to the jury.”[84]The judge had given a full direction as to the limited relevance of the events underlying the Snaresbrook case. He did so orally (transcript for 8 January 2014 pp. 7F-11G) and provided it to the jury in the same terms in his written directions. With regard to the blood staining and the blow torch, the judge said this: “You may recall prosecuting counsel, Mr Wilkins, made some reference in his cross-examination of the defendant to evidence of a blowtorch and blood, and it is right that I should remind you now, as I believe I did at the time, that suggestions made by either counsel to witnesses are not evidence, and that rule applies equally to both sides”.[85]In our judgment, in the context of the full direction that the judge gave about the earlier trial and its limited relevance, the applicant’s convictions at the re-trial and the evidence given by various witnesses in those proceedings, this handling by the judge of the mentioning of a blowtorch and blood was entirely satisfactory and none of this material gave rise to any requirement for the discharge of the jury. Such a step would have been to inflate the significance of this out of all proportion.[86]We move to the question of R1’s report to the police in 2006.[87]This all arose initially because the defence suggested to the officer in the case, a DC Thomas, that the police had only sought to follow up and investigate matters ultimately bolstering the prosecution case and did not pursue lines of inquiry that might have assisted the defence. For example, it was suggested to the officer that the police had not investigated with those present at the wedding reception the likely truthfulness or otherwise of the applicant and L having had sex on that occasion. Further, it was put that they had not questioned the physical feasibility of the applicant’s alleged access to L’s bedroom or of her having escaped on one occasion, as she alleged, from her bedroom to cling onto a satellite dish to avoid detection of activity with the applicant.[88]In re-examination of the officer, she was asked questions about having followed up with R1 her 2006 complaint in which she had reported a suspicion that L was being sexually abused by members of her family. This was designed to show that avenues of enquiry potentially helpful to the defence had been pursued. The officer said that she was trying to find out if R1 had reported something that might have been of interest in the investigation. She said it appeared to her that R1 did not want to make a statement.[89]The judge recorded R1’s own evidence on this subject of the 2006 report at pp.24H-25A of the transcript as follows:
“In October 2011 after [the applicant’s] arrest, [R1] told you she was called by DC Helen Thomas, asking if she would make a statement: “She asked me if I thought the allegations were true, and I answered really by saying the same things as I have said here in court.”
The officer, she said, then raised an allegation that [R1] had made in 2006 about the possible abuse of [L] by other family members, not including [the applicant]. This was, she said, during a bipolar episode, you will remember. “After I told the officer that [L’s] recent allegations were not true as far as I could tell, she never called back.” That is a reference to 2006.” That is a reference to 2006.”[90]The defence complained that the Crown had not made disclosure of material relating to the 2006 report. It was argued that, “the Prosecution are in possession of material that contradicts the clear suggestion that the allegation by [R1] was true and reliable but simply failed to identify the correct offender”: paragraph 22 of the written argument. The further submission was made that, “The jury, as a result of the suggestion by the prosecution, as being potentially mislead (sic) that the allegation of 2006 may be a correct identification of abuse of [L], but by [the applicant] and not her parents”. The Crown’s response was that there was nothing further to disclose and that they were prepared to accept that the effect of the evidence was that, whatever had been said by R1 in 2006, there was nothing in it to suggest that the applicant was implicated in any way.

The judge ruled on the point in this way:

“The court has been told by prosecuting counsel that there is nothing further to disclose regarding [R1’s] conversations with the police in 2006. I did not understand that [R’s] evidence even began to suggest that the defendant was being implicated in some unspecified abusive conduct towards [L]. Even if my understanding is faulty, the position is that the prosecution accept that a direction to the jury that there is no evidence whatsoever to implicate the defendant in whatever it was that [R1] was saying would be an appropriate way of dealing with the matter. It is noteworthy, first, that the jury were told by [R1] herself that she was at the time undergoing a bipolar episode, and second, that what she had to say was indeed taken no further by the police nor anyone else.”
[92]On the present application, it is submitted for the applicant that the point did require disclosure of the material underlying the 2006 report by R1. It is argued that if L was being abused by another family member, other than the applicant, then it might explain why she was complaining about sexual abuse; it, therefore, had the potential both to undermine the Crown case and to assist the defence case that the applicant had not abused L: see paragraph 86 of the skeleton argument in this court.[93]In our judgment, neither the evidence about the 2006 report by R1, nor the absence of disclosure of underlying material about it, gave any ground for the discharge of the jury. In our judgment, the judge’s ruling on the subject was correct for the reasons he gave. There was nothing in the issue that either implicated the applicant nor was there anything that might have assisted his case. We would add that, having seen such material as there was relating to this matter it seems to us that there was nothing requiring disclosure that was not known to the defence in any event.[94]The final ground of appeal (ground 8) asserts that the jury should have been discharged because of deficiencies in the investigation conducted by the police. Three examples are given. However, none of these points are amplified in the ensuing advice on appeal or in the skeleton argument before us and none were the subject of oral submissions at the hearing. Therefore, we see no reason to say any more about them.[95]For these reasons, the application for leave to appeal against conviction was, and is, refused.[96]We turn to the sentence application.[97]The applicant is now 43 years old. He had two previous convictions for three offences, including the two offences of assault occasioning actual bodily harm to which we have already referred. There was no pre-sentence report. As the judge recorded, the defence did not ask for such a report to be prepared. It is not suggested that any complaint arises because of the absence of a report.[98]In passing sentence, the judge recorded the submission for the applicant that he should only be sentenced on the basis of a single proven event on each specimen count. He also referred to the authorities in that respect which had been cited to him. He accepted that submission.[99]The judge said that the applicant’s conduct showed that he was willing to go to considerable lengths to get what he wanted, careless as to its effect on others. L had been a vulnerable child. The abuse was even more serious because of the relationship with M, a mother figure to L. The judge assessed the applicant’s culpability as high. The harm caused to L, in psychological terms, was also seen by him as being high. There had been ejaculation on a regular basis. There had also been lies and threats designed to deter L from reporting the matter, although she had been infatuated with him.[100]In mitigation was the fact there had been no previous sexual offending. The applicant had a young family and the sentence would separate the family. The judge determined that the applicant was not to be sentenced as a dangerous offender under the relevant provisions of the Criminal Justice Act 2003. However, there were features of the offending, he said, which took any sentence up to and beyond the upper limit of the applicable guidelines (which we would note were the old guidelines applicable prior to 1 April 2014). The judge noted that the applicant was capable of leading a reasonably industrious and successful family life, but there was a dark side to his character. His conduct had been the exact reverse of that of a mature, decent and responsible man. He had groomed and seduced L; he was a scheming and manipulative fantasist. The judge proceeded to pass the sentences which we have indicated. He had initially passed a total sentence of 9 years imprisonment at the first hearing on 28 January 2014, but reduced that to a total sentence of 8 years on a review hearing two days later.[101]On the present application, it is submitted that the sentence was manifestly excessive. The proposed grounds of appeal are: 1) that the aggravating features should not have caused the increase of the sentence beyond the range of the guidelines; 2) there was insufficient regard paid to the mitigating features, the lack of risk posed, the age of the offences and the separation of the applicant from his family; 3) exceeding the guideline had been recognised as being unfair: 4) the case of Healy [2009] EWCA Crim 2196 supported the view that the sentence was excessive.[102]We do not accept these submissions. There is no challenge to the judge’s assessment of the seriousness of the offence and of the harm caused. The guidelines indicated a sentencing range of 3 to 7 years custody, with a starting point of 4 years. However, while the judge acceded to the submission that he should sentence only on the basis of single offences on each count, there were still five offences of escalating seriousness for which the applicant had to be sentenced. The judge was not sentencing for a single offence. In our judgment, having regard to the assessment of seriousness of the offending and of the aggravating and mitigating factors, the judge cannot be said to have gone beyond the guidelines at all, even though the total for the five offences went twelve months over the range set by the guidelines for a single offence.[103]In our judgment, the sentence was an appropriate one and we refuse the application for leave to appeal against it.