DM, R. v (Rev 1) [2016] EWCA Crim 674

[2016] EWCA Crim 674Case No 201504214 B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 20th May 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE LANGSTAFF
RECORDER OF WINCHESTER
HIS HONOUR JUDGE CUTLER CBE
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
"DM"
Computer-Aided Transcript of the Stenograph notes ofWordWave International Ltd trading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms D White appeared for AppellantMr B Douglas-Jones appeared for Crown
J U D G M E N T (Approved)
[1]On 30th July 2015, in the Crown Court at Shrewsbury before Mr Recorder Daly and a jury, the appellant was convicted of indecent assault, counts 1 to 3. On 4th September 2015 he was sentenced to a term of 12 months' imprisonment, suspended for a period of 12 months, to run concurrently on each count. He appeals against conviction by leave of the single judge.[2]The prosecution case was one of historic sexual abuse within the family. The appellant was alleged to have sexually abused his younger half-sister, "J", by digitally penetrating her vagina and simulating sexual intercourse with her between 27th October 1997 and 19th May 1999. At this time J was aged between 10 and 12 and the appellant was aged between 14 and 16.[3]Count 1 reflected an incident of digital penetration by the appellant while they were alone in their parents' bedroom, when the complainant was 10 years old and the appellant was 14 years old, some time between 27th October 1997 and 22nd September 1998. The appellant was born on 27th October 1983.[4]Count 2 represented an act of simulated sexual intercourse performed on the complainant by the appellant, when she was aged approximately 11 or 12 and the appellant was aged 15 or 16 years old. After getting out of the bath the complainant was forced onto her bed from behind, while the appellant moved his penis between her thighs, causing her pain. This took place at some time between 23rd September 1998 and 19th May 1999.[5]Count 3 reflected a similar incident to that indicted on count 2, when J was aged 11 or 12 years old. As she left the bathroom and entered her bedroom, the appellant moved his penis between her thighs and against her genitals. When the appellant left, J noticed a condom that he had apparently ejaculated into. This incident was also said to have occurred between 23rd September 1998 and 19th May 1999.[6]When J attended sexual education sessions at school she began to understand the significance of what had happened. She challenged the appellant and told him if he did not stop, she would tell their mother. She also disclosed what had happened to her older sister, "P", in approximately February 1999. P told their mother and their mother then sought the assistance of social services in May 1999. J was then threatened by the appellant and decided she did not want to involve the police.[7]After contact with a mental health nurse and counsellor over the years, J eventually decided to inform the police, prompted by the appellant's wife giving birth to a daughter. The appellant was arrested and interviewed on 1st March 2013.[8]The prosecution case was that the appellant's wild behaviour as a boy and teenager had extended to transgressing sexual boundaries. He had used J to experiment sexually while she had been entrusted to his care. The prosecution sought to rely on the appellant's propensity sexually to assault J by evidence that on two occasions, not indicted, he had digitally penetrated her and asked her to perform oral sex upon him. This was at a time when J was aged seven and nine respectively.[9]In summary, the prosecution relied, among other material, on the evidence of J, aged 31 by the time of the trial; the evidence of the complaint to her sister P; various social services records in relation to allegations of sexual abuse by the appellant and a subsequent investigation in 1999; Rape Crisis Helpline records confirming a report of historic sexual abuse by the appellant in 2011; and, bad character evidence of the two unindicted incidents of sexual misconduct carried out by the appellant when he was under 14 years old. It was plainly the evidence of J which was the most important evidence in the case.[10]The defence case was that J's allegations were wholly untruthful. The appellant acknowledged that he had been a naughty child and had a criminal record. His misconduct and his poor relationship with his step-father had led to him leaving the family home and living with various relatives, as well as being placed into the care system. However, he had not been living at the family home at the time of these incidents. J's report to the police was many years after the alleged incidents and had been apparently triggered by a trivial Facebook disagreement. In the intervening years, while their relationship had not been close, they had spent time together on holiday and visited each other. Such behaviour was, submitted the defence, incompatible with the allegations that J had made. The defence relied on the appellant's evidence and his account to the police during interview.[11]The Recorder outlined three particular issues for the jury: first, whether the complainant's evidence was truthful; second, if so, whether the facts in count 1 had occurred prior to the appellant's 14th birthday; third, if so, whether the jury were sure that at the time he did the act alleged in count 1, he knew that it was seriously wrong. We will return shortly to how questions 2 and 3 arose.[12]The first issue that arises on this appeal is whether the Recorder was right to admit evidence of the appellant's bad character in relation to incidents which were said to have occurred before he was aged 14. This was evidence which the prosecution wished to introduce under the bad character provisions of section 101(1)(c) (important explanatory evidence) and subsection (d) (propensity) of the Criminal Justice Act 2003. The incidents were referred to as "the Lego Incident" and "the Swimming Baths Incident".[13]The Lego Incident was said to have occurred when J was approximately seven years old. She was living in Dawley and the appellant was taking care of her at the time. They were in the living room and J was playing with some Lego. The appellant wanted her to get under the blanket on the sofa with him. He wanted her to kiss him, which she did. However, he also wanted her to use her tongue. She wanted to continue playing with her Lego, but eventually she was persuaded to kiss him with her tongue. The appellant then asked her to play with his genitals. She did not want to do this. She recalled getting out from under the blanket and leaving the living room. The appellant was insistent that she should get back under the blanket with him and threw Lego bricks at her when she refused. She ran upstairs and across the landing as the appellant chased her. She tripped and sustained a carpet burn across her eye. She recalled the appellant being reprimanded due to the injury to her eye. Later she talked to her uncle and aunt and told them that she had kissed someone. They laughed and she continued to tell them that she had kissed her brother and they had used their tongues. The appellant later caught hold of her and told her to deny that anything had happened if she was questioned by their mother.[14]The Swimming Bath Incident occurred when J was approximately nine years old and had gone swimming with the appellant. The appellant wanted to share a cubicle with her. She was naked and the appellant wanted to insert his fingers inside her vagina. She said no, but the appellant tried to do it anyway. She described it as very painful, feeling like a very sharp thorn. The appellant prevented her from going to the door. He wanted to put his erect penis in her mouth. He gave her a choice: either he inserted his finger inside her vagina or she put his penis in her mouth. He explained to her how to place his penis in her mouth, describing it as "a bit like a lollipop". As she wanted to avoid further digital penetration, she complied by putting her mouth on his penis under his instructions.[15]The defence objected to the introduction of the Lego Incident and the Swimming Baths Incident. Ms White submitted on the application under section 101(1)(c) (important explanatory evidence) that it was not a case where the jury would find it impossible, or even difficult, to understand other evidence without the introduction of this evidence. Secondly, if the evidence were admitted, the prosecution would have to prove not only that the appellant committed the offence, but additionally that he knew it was seriously wrong. Thirdly, having regard to all the circumstances in the case, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court should exclude it and that there would be an inherent unfairness in introducing the evidence. So far as section 101(1)(d) was concerned, she submitted that the allegation did not establish a propensity.[16]Before turning to the judge's ruling, it is necessary to say something about the common law rebuttable presumption that a child not less than 10 but under 14, a young person, was doli incapax, incapable of committing a crime. The presumption was rebutted only if the prosecution proved beyond reasonable doubt both(i) that the child had caused an actus reus with mens rea, in other words committed the crime, and(ii) he or she also knew that the particular conduct was not merely naughty or mischievous but seriously wrong. The common law rule was abolished by section 34 of the Crime and Disorder Act 1988 which came into effect from 30th September 1998 but did not have retrospective effect.[17]In his ruling allowing the evidence to be admitted, the Recorder observed that the charges had been specifically framed to take into account the appellant's 14th birthday, that being the first date of the indictment. The reason for this being that the presumption of doli incapax would have been available to him prior to that date. The nature of the evidence which the prosecution proposed to adduce pursuant to section 101(1)(c) and (d) consisted of sexual behaviour towards the complainant when she was seven and nine years old and when the appellant was aged 11 and 13 years old respectively. The prosecution had submitted that the evidence was admissible to show the appellant's propensity to behave in this way towards his sister and constituted important explanatory evidence. The Recorder concluded that the question of propensity was an important issue in the case. The nature of the acts towards the same complainant was capable of establishing a propensity to commit offences of the type with which he was charged and, having such a propensity, would make it more likely that he committed the offences charged. The Recorder noted that the offences were of a similar nature to those charged, albeit not identical. He considered the provisions of the Criminal Justice Act 2003 and section 78 of the Police and Criminal Evidence Act 1984. It amounted, in his view, to reprehensible behaviour within the meaning of the Act. He concluded that he did not have to consider doli incapax as a defence, but could have regard to it when considering whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. He concluded that the evidence would not have such an effect, it would be the subject of cross-examination in the usual way, and it was only right that the jury should hear it so as to put the behaviour of J and the appellant into context. It could be regarded as grooming behaviour. The evidence was therefore also admissible under section 101(1)(c). It would be difficult for the jury to understand why the complainant behaved as she did without this knowledge. Its value was, in the Recorder's view, substantial. He acknowledged that the jury would need to be directed in accordance with section 101(1)(d) that they must be sure on the criminal standard of proof that the events did in fact occur before taking them into account. The judge referred to the case of R v H [2010] EWCA Crim 312 and concluded that much of what was said in the judgment applied in the present case. The evidence was accordingly admissible. We will return in terms to the case of H later in this judgment.[18]Although it was advanced as a ground of appeal, Ms White did not pursue ground 1 formally before us. Nevertheless, we will deal with it shortly.[19]In our view, the Recorder cannot properly be criticised for the approach he adopted. But for the age of the appellant at the time, there could be little serious argument that evidence of the two incidents was potentially admissible. While not every judge would have admitted the material, particularly the Lego Incident, the Recorder's view of the matter was plainly one that was properly open to him. The question then arises: did the appellant’s age at the time call for a different approach based on the presumption of doli incapax? In our view, it did not. The appellant was not facing a criminal charge in relation to the two incidents and therefore the doli incapax presumption had no direct application.[20]A similar point arose in the case of H, to which we have referred, where the Court of Appeal quashed convictions on three counts on the grounds that they had been committed when H was under 14 and the judge had failed properly to direct the jury on the doli incapax principle. On this basis it was sought to argue that other verdicts were contaminated. Pill LJ (at paragraph 45) gave the judgment of the court in these terms:
"The point is also put on the basis that the evidence on counts 1 to 3 would not otherwise have been admitted and this court should approach the case on the basis that the evidence on counts 1 to 3 was, in the event, not properly admitted. We reject that submission. It was essential that the jury should know - and the judge should only have ruled in this way - what happened in the years immediately preceding the attainment of the appellant's fourteenth birthday. It would have been wholly artificial and unsatisfactory if the evidence before the jury had commenced with the appellant's fourteenth birthday. The conduct of the appellant as alleged....must be considered by a jury as a whole."
[21]In this case what was required was that the Recorder should properly direct the jury that they must be sure that the two incidents occurred and, if they were, how the incidents might help them decide whether the appellant had committed the indicted offences. In our view, the Recorder did properly direct the jury on these matters: see summing-up page 6D to 7G. Accordingly, we dismiss the first ground of appeal.[22]The Recorder summed up the case and it is only necessary to refer to one part of the summing-up and what followed for present purposes. At page 13 A-E the Recorder referred to an issue raised by the defence: the possibility that the conduct charged in count 1 occurred before the appellant's 14th birthday. The matter arose in this way. In relation to count 1, J had said she believed she was in Year 5 at school at the time. She did not know whether the appellant could have been 13 at the time, but it was possible. The Recorder directed the jury in this way:
"It is possible that were you to be sure that count 1 on this indictment did happen, that you came to the conclusion that it happened before [the appellant's] 14th birthday. You would of course have to be sure to begin with that it did happen, but if you were sure then potentially it could have happened before he was 14, and if that was your conclusion, then an additional feature comes in as far as count 1 is concerned. You could not convict [the appellant] on count 1 if you thought he was under 14, unless you are also satisfied so that you are sure, that at the time he did the act he knew that it was not merely naughty or mischievous, but that it was seriously wrong. Now I emphasise that would only apply to count 1 and firstly you would have to be sure that the incident happened, but if you were sure, and you thought it might have happened when he was under 14, you can't convict unless you're also sure that he knew it was seriously wrong."
[23]After the jury retired they sent a note seeking clarification in these terms:
"Do we have to agree that the incidents occurred within the dates specified on the indictment?"
[24]After a short discussion with counsel, the Recorder directed the jury that the short answer was no, but he added:
"But you will recall what I said about count 1. That if you were to find that the incident in count 1 did happen, and it happened before his 14th birthday, then you couldn't convict him unless you were also satisfied, so that you are sure, that at the time he did the act, he knew that it was not merely naughty or mischievous, but that it was seriously wrong. Well that still applies, but of course it could theoretically also apply to counts 2 and 3 were you to find as a matter of fact that those incidents did occur and also that you found as a matter of fact that it was before his 14th birthday, but other than that ladies and gentlemen, the precise dates on the indictment are not what we call a material averment."
[30]Ms White submitted that this was a misdirection: the Recorder should have directed the jury that, if any of the conduct referred to in counts 1 to 3 occurred before the appellant's birthday, they should return a verdict of not guilty unless they were sure that the appellant had the requisite actus reus and mens rea for the offence and they were also sure that what he knew was seriously wrong and there was evidence in support of that.[26]The Recorder was dealing with two points in his further direction: first, whether the jury had to agree as to the precise date when the conduct occurred, to which the answer was no; the second point was the significance of the appellant’s 14th birthday. In practical terms, it was only likely to arise on count 1 and that is why the Recorder had specifically tailored his direction to count 1. In his further direction he extended that direction to counts 2 and 3 on a theoretical basis.[27]The direction was, in our view, deficient in one material respect. The presumption of incapacity of committing a crime could only be rebutted by the prosecution by clear positive evidence, not consisting merely of the evidence of the acts amounting to the offence itself, but that the appellant knew that his act were seriously wrong as distinct from mere naughtiness or childish mischief.[28]In the case of C (a minor) v the Director of Public Prosecutions [1996] 1 AC 1, Lord Lowry said at page 38, paragraphs 64 to 65, as follows:
"64. A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applies. What is required has been variously expressed as in Blackstone, 'strong and clear beyond all doubt or contradiction', or in Rex v Gorrie (1918) 83 JP 136, 'very clear and complete evidence' or, in B v R (1958) 44 Cr App R 1, 3 per Lord Parker CJ, 'It has often been put in this way, that ... "guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt"
'. No doubt, the emphatic tone of some of the directions was due to the court's anxiety to prevent merely naughty children from being convicted of crimes and in a sterner age to protect them from the draconian consequences of conviction. 65. The second clearly established proposition is that evidence to prove the defendant's guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be. As Erle J said in Reg v Smith (Sidney) (1845) 1 Cox CC, 260 in his charge to the jury: 'a guilty knowledge that he was doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of opinion that he did fire it) he had a guilty knowledge that he was committing a crime'.[29]In the case of R v H at paragraph 36, there is a reference to knowledge that the defendant under the age of 14 must know that his act was "seriously wrong". The phrase “seriously wrong” came from the certified question in the case of C:
"Whether there continues to be a presumption that a child between the ages of 10 and 14 is doli incapax, and if so whether that presumption can only be rebutted by clear positive evidence that he knew that his act was seriously wrong, such evidence not consisting merely of the evidence of the acts amounting to the offence itself."
[30]The House of Lords in C answered both questions, yes; and that is the state of the law in a case where the presumption of doli incapax arises.[31]It is clear that the Recorder gave the first part of the required direction; but it is also clear that he did not give the second part: a direction that the evidence to prove the Appellant’s guilty knowledge must extend beyond the evidence of the act or acts amounting to the offence itself.[32]However, in our view this misdirection was material only to the conviction on count 1.[33]While there is sufficient doubt that the jury may have considered that the facts charged under count 1 occurred before the appellant's 14th birthday, no such doubts arise in relation to counts 2 and 3. For these reasons, we allow the appeal to the extent of quashing the conviction on count 1, and to that extent the appeal is allowed.

Cited in 4 later judgments