McEvoy, R. v [2016] EWCA Crim 1654

[2016] EWCA Crim 1654Case No 20154190 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 4 August 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LLOYD JONES
MR JUSTICE CRANSTON
MRS JUSTICE ANDREWS DBE
Between
R E G I N ACrownV
Between
ANDREW MCEVOY
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 7404 1424(Official Shorthand Writers to the Court)
Mr I Fessal appeared for AppellantMr M Tanney appeared for Crown
J U D G M E N T (As Approved by the Court)

LORD JUSTICE LLOYD JONES:

[1]On 18th August 2015 in the Crown Court at Blackfriars before His Honour Judge Peter Clarke QC, the appellant was convicted on a single count of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. On 25th September 2015 he was sentenced by Judge Clarke to a suspended sentence order of 12 months' imprisonment suspended for 24 months. There was an unpaid work requirement, a supervision requirement and an alcohol treatment requirement.[2]The appellant committed the offence during the two year operational period of a suspended sentence of 18 months' imprisonment imposed by magistrates on 18th June 2013 for an offence of assaulting a police officer. No separate penalty was imposed in respect of that.[3]Having been convicted of an offence listed in schedule 3 to the Sexual Offences Act 2003 the appellant was required to comply with the provisions of Part 2 of the Act, notification to the police for 10 years. Having been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the appellant was included in the relevant list by the Independent Safeguarding Authority.[4]He now appeals against conviction by leave of the single judge. Reporting restrictions apply in this case. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.[5]On 3rd August 2014, almost exactly two years ago, the complainant, a seven-year-old girl, alighted from a train with her parents and her older sister at Victoria Station in London. They walked along the platform which was busy with many people walking in both directions. The appellant was walking along the platform towards them. The prosecution case was that as the appellant walked past the complainant he grabbed her bottom. She did not react immediately and the incident was not seen by any member of her family. As the family approached the ticket barrier the complainant said to her mother:
"Someone touched my bum."
[6]The Crown's case relied on the evidence of two German nationals, Thomas Nischwitz and Tobias Feth, whose statements were read to the court at the trial. Both men witnessed the incident and approached the complainant's parents to tell them what they had seen.[7]Following the incident, the appellant was approached by the complainant's parents and then the police. He was sitting on a train, appeared to be asleep and was intoxicated by alcohol.[8]At the trial the statements of the complainant's parents were read, her ABE interview was played and the court saw CCTV footage of the platform. In addition the evidence of Thomas Nischwitz and Tobias Feth was read.[9]At trial the appellant gave evidence. His case was that he was intoxicated and could not remember the incident. If he did touch the complainant it was likely to have been accidental as a result of his intoxication. He said he was homosexual and had always been homosexual. He was in due course convicted by the jury.[10]On this appeal, brought by leave of the single judge, three grounds of appeal were initially advanced. First, that the judge erred in admitting the hearsay evidence of Thomas Nischwitz and Tobias Feth. Secondly, that the judge erred in admitting the ABE interview of the complainant. Thirdly, that the judge failed in summing-up to deal properly with the issue of the applicant's drunkenness and in particular to emphasise the component elements required if the offence was to be made out that the action had been intentional. Ground 1 The admission of hearsay evidence[11]On 8th August 2014 both Thomas Nischwitz and Tobias Feth made witness statements to the police. Thomas Nischwitz said that on the day in question he saw the appellant walk past the complainant. The appellant then turned back, leaned down and touched the complainant's bottom. He moved his hands further between her legs and grabbed her bottom. It was not a brushing motion but a firm grab. Whilst quick it was definitely intentional. In his opinion the grab was sexual. He was shocked and looked at his friend who also saw what happened. The complainant did not react and continued walking with her family. She then turned around and felt her bottom. She looked confused. Mr Feth approached her stepfather and told him what had happened.[12]Tobias Feth's statement said that the appellant walked towards the complainant, bent over slightly and grabbed the whole area of her bottom with his left hand. In his opinion it was a deliberate act and was not an accident. He believed the act to be sexual. The complainant looked behind her as if to see what had happened. She started to speak to her parents and then started to cry. Her parents appeared confused so he approached her stepfather and told him what had happened.[13]The case was listed for trial on 23rd February 2015. Neither Mr Nischwitz nor Mr Feth attended. The Crown conceded that the witnesses were crucial to the prosecution case and without them there was no case against the appellant. The Crown also indicated that it was not appropriate to apply for their statements to be read under section 116(2)(c) and (d) of the Criminal Justice Act 2003, as it could not be shown that all reasonably practicable steps had been taken to secure their attendance. The Crown informed the court that both witnesses were university students and that their home and university addresses were known to the police. As a result, the case was adjourned.[14]On 23rd March 2015 the case was listed for mention. The Crown informed the court that contact had been made with Mr Feth who was willing and able to attend to give evidence. Mr Nischwitz was away on holiday but the Crown anticipated no difficulty in his attending. The case was fixed for trial on 17th August 2015.[15]On 17th August 2015 neither Mr Feth nor Mr Nischwitz attended court. DC Peak gave evidence that both British and German police had attempted to contact the witnesses by a series of telephone calls and emails to which the witnesses had not responded. The most recent telephone call had been made on 30th May 2016. The German police had not however visited the home or university addresses of the witnesses. As all reasonably practicable lines of enquiry had not been exhausted by the prosecution, Crown counsel, Mr Tanney, who also appears today, indicated that no application under section 116 could be made for the statements to be read. However, he indicated that if the judge was prepared to entertain such an application counsel would make it. It is fair to say that the principal application made by Mr Tanney was for the matter to be adjourned so that all reasonable lines of enquiry could be pursued. The judge indicated that he was not minded to adjourn, at which stage Crown counsel formally applied for the statements to be read. A written application was handed to the judge.[16]Counsel for the appellant, Mr Fessal, who also appears before us today, opposed the application on the basis that the Crown had accepted and virtually conceded that all reasonable steps had not been taken by the German authorities to secure the attendance of the two witnesses. Matters had moved no further forward since 23rd February 2015 when the Crown's position was that it was wrong to make an application for the statements to be read. No efforts had been made to contact the witnesses since 30th May 2015, despite the case having been listed for trial since 23rd March 2015. The evidence of the witnesses was pivotal, both to the prosecution and the defence. It was the submission of Mr Fessal on behalf of the appellant that unless he could test the evidence in cross-examination the appellant would be deprived of a fair trial.[17]The judge allowed the application. He indicated that he was surprised by the Crown's concession that not everything that could have been done had been done. It seemed to the judge that a great deal had been done. He also drew a distinction between what had been done by the authorities in this jurisdiction and by the German police. The judge decided to admit the evidence. The jury would be told that the evidence was not agreed by the defence and that the defence had wished to cross-examine the witnesses.[18]Section 116 of the Criminal

Justice act 2003 reads, in relevant part, as follows:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— ... (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken ... "
[19]The burden of proof of the conditions of admissibility under section 116(2) lies on the party seeking to rely on the hearsay statement. As it was the Crown in this case, the burden lay on the Crown to prove to the criminal standard that those conditions had been satisfied. In determining what is reasonably practicable in this context, the importance of the evidence will be a relevant consideration. Here, the evidence was of pivotal importance to the case because the two German students were the only two persons who claimed to have seen the assault and the CCTV footage did not show the exact moment of the alleged assault.[20]In our view it is clear that the burden was not discharged. It was not reasonably open to the judge to conclude that the conditions laid down by the statute had been satisfied. Indeed, the Crown had effectively conceded as much earlier in the hearing. Mr Tanney had very frankly stated in terms that the Crown had not exhausted all practicable lines of enquiry.[21]In particular, although the German police reported through Interpol that they had not been able to contact the students by phone, email or personal messages, there was no evidence that the German police had made any attempt to ascertain where they were at university or that either the home address or university address of either of the students had been visited by the German police. In this regard we note the observations of Hughes LJ in R v Riat [2013] 1 All ER 349 that if a witness is lost, all reasonable practical steps must have been taken to get him before the court and that this will include not only looking for him if he disappears, but also keeping in touch with him to avoid his disappearing. Here the last response received from either of the students had been on 23rd March when Mr Feth indicated that he would be able to come to give evidence in July. No efforts had been made to contact the witnesses since 30th May 2015.[22]We are satisfied that the admission of this evidence in the form of hearsay statements resulted in potential prejudice to the appellant in that his counsel was unable to challenge these two witnesses on various inconsistencies in the details of their accounts which were potentially relevant to the defence case, that if there was any touching it was accidental, inadvertent touching caused by the appellant's drunken state. Accordingly the appeal will be allowed on this ground.[23]In these circumstances we propose to mention grounds 2 and 3 only very briefly. Ground 2, which is no longer pursued by Mr Fessal as an independent ground is that the judge erred in admitting the statements of the complainant in the ABE interview. His submission is that this ABE interview, which in fact was not made until 16th July 2015 (that is nearly a year after the incident) was not admissible.[24]It seems to us that the judge was correct in his conclusion that while the fact that this was obtained so long after the incident meant that it should be treated with considerable caution, this was not inadmissible. In fact, the ABE interview did not include anything which was inconsistent with or went further than the complaint she made to her mother immediately after the incident. It is also significant that Mr Fessal made it clear that if it were admitted he would not seek to cross-examine the complainant. Moreover the judge in his summing-up did include an appropriate warning for the jury in relation to the reliability of this evidence, given that it was taken so long after the incident. Accordingly it seems to us there is nothing in this ground.[25]Ground 3, for which leave was given, was that the judge failed to give a clear direction that before the jury could convict the appellant they must be sure that any touching was intentional as opposed to accidental. The judge dealt with this in his summing-up. He did at one point direct the jury:
"The allegation is made under the legislation that was passed in 2003 and the allegation is that on 3rd August the defendant intentionally touched A, a child under the age of 13, in fact 7 years old at the time, as you have heard, and the touching was sexual."
He then went on to direct the jury as to requirement that the touching was sexual and to tell them that drunkenness was no defence. If matters rested there, with the single reference to the requirement of intention, we can see that it might be debatable whether the judge had done sufficient to draw to the minds of the members of the jury the requirement that the touching must be intentional. In particular it is unfortunate that the possibility of inadvertent touching was not addressed in the context of drunkenness. However, two further matters persuade us that the jury cannot have been under any misapprehension as to the requirement of intentional touching. First, the judge emphasised that the jury must be sure that the touching was sexual. The touching could not be carried out with a sexual motive unless it was also intentional. This alone excludes the possibility that the jury could have convicted on the basis of an inadvertent touching. Secondly, at the conclusion of the summing-up Mr Fessal in the presence of the jury said to the judge that it was important to remind the jury that the touching must have been intentional and not an accidental touching. The judge replied that a touching would not be sexual if it was unintentional.[26]In these circumstances, while the direction could have been clearer, we are satisfied that the jury could not have been under any misapprehension in this regard.[27]Accordingly, the appeal against conviction will be allowed on ground 1.[28]We should add this. The history of this case does not reflect well on the operation of the criminal justice system. The incident occurred almost exactly two years ago. The matter was listed for trial in February 2015. At that point things started to go wrong. The German witnesses were not there so the trial was adjourned. There was then a mention in March 2015. At that stage the German students said that they would be able to attend the trial. The trial was set for August. Of course August is a time when students, especially foreign students, are not likely to be at home or at university. It is therefore not surprising that they did not attend the trial in August 2015. Nothing seems to have been done to ensure that they were there. Moreover, there was no ABE interview of the complainant until July 2015. The case was then tried in August 2015 and sentence was passed in September 2015. Perfected grounds of appeal were dated 29th October 2015 and there is a manuscript note on the perfected grounds of appeal which states "Received 29th February 2016." The matter has come before the court for hearing only today which is 4th August 2016.[29]We should say that in the circumstances which were before the judge we can understand why the judge was anxious to avoid a further adjournment. However, in our view he erred in principle in admitting the statements. More generally, the British Transport Police, the CPS and the courts have not distinguished themselves so far as this case is concerned. The appeal will be allowed.