R v David Llewellyn Yeld [2021] EWCA Crim 866

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2021] EWCA Crim 866
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Wednesday 12 th May 2021
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Burnett of Maldon)
MR JUSTICE SWEENEY
MR JUSTICE FORDHAM
____________________
- v –
Between
DAVID LLEWELLYN YELD____________________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)____________________Mr P Jarvis appeared for ApplicantMiss A Hamilton appeared for Crown____________________J U D G M E N T

Wednesday 12th May 2021

[1]On 25th June 2019, following a trial in the Crown Court at Snaresbrook before His Honour Judge Del Febbro and a jury, the applicant was convicted of one count of rape, contrary to section 1(1) of the Sexual Offences Act 1956 (count 4), and four counts of Indecent Assault, contrary to section 14(1) of the Sexual Offences Act 1956 (counts 1, 2, 3 and 5).[2]The applicant's application for an extension of time (427 days) in which to apply for leave to appeal against those convictions has been referred to the full court by the single judge.[3]The nature of this case is such that the complainant, to whom we will refer as "C", has lifelong anonymity.[4]The applicant is now aged 66. He was a primary school teacher who started his career in 1982. In the late 1990s he taught at the school attended by C. The events which underpinned the indictment occurred when she was in her final year (Year 6) of primary school in 1997. She was 10 years old.[5]In March 2016, C, who was struggling to cope with life in some respects, was referred by her general practitioner for a psychological assessment. It was during that assessment that she revealed that she had been sexually abused by the applicant. She explained that she had pushed the memories from her mind, although from time to time they came and went in snippets. In essence, they tumbled out as a result of the other problems she was experiencing. Initially, C thought that she was only 8 or 9 years old when the events occurred, but it became clear that she was referring to experiences during Year 6.[6]C was interviewed in the usual way on 23rd May 2016. The essence of her account was that she was the applicant's favourite child and was called "Cutie Pie" by him. She recollected that there were regular competitions for who should be called "Cutie Pie".[7]There was a cupboard at the school in which, amongst other things, sports equipment was kept. It was there, as C explained, that the various incidents took place.[8]On the first occasion, which formed count 1, the applicant hugged her and pushed her face to his crotch against what she now knew to be a semi-erect penis. Sometime later (reflected in counts 2 and 3), the applicant fondled her genitals, penetrated her vagina with his fingers, turned her around, bent her over and ejaculated on her back.[9]Count 4 was the count of rape. The applicant tried, but failed, to penetrate C's anus. She screamed with pain. Instead, he penetrated her vagina. As a result, she was wet and bloody. She threw away her underwear.[10]Count 5 comprised a later occasion when the applicant put his penis in C's mouth.[11]Two former pupils were called to give evidence at the trial. One remembered clearly C being the applicant's favourite. He gave evidence of other incriminating behaviour, but was less certain in his memory. Another pupil was called who did not remember the "Cutie Pie" competitions.[12]Following the interview in May 2016, the applicant was arrested. He produced a prepared statement, but answered "No comment" to all questions in the interview thereafter. That resulted, uncontroversially, in an adverse inference direction because he gave evidence of matters about which he had been asked directly by the police but chose not to answer.[13]The applicant's evidence was that the events simply did not occur. It was not suggested that C had deliberately fabricated her account of what happened; but rather that she had mis-remembered events – in other words, that these were false memories which, nonetheless, she genuinely believed to be true. The context of the questions put to her was that she was a troubled adult and that her recollections were unreliable.[14]Bad character evidence was adduced before the jury. On 6th May 2016, in the Crown Court at St Albans, the applicant had been convicted of five counts of making indecent photographs of children and one count of possessing an indecent photograph of a child. The details of those convictions were placed before the jury as agreed facts. There was a total of 186 indecent images of children found on the applicant’s Dell laptop computer: 16 images at level A (broadly reflecting penetrative sexual activity); 17 images at level B (broadly reflecting non-penetrative sexual activity; and the balance at level C (which reflected less serious activity).[15]The jury were told that the applicant's computer had been investigated by a named forensic computer investigator, and they were given some details of the computer activity between 17th March 2013 and 15th May 2013. Details were provided to the jury of a number of websites which the computer had accessed, all of which were concerned with seeking images of young girls engaged in sexual activity. Three of those websites included the term "cutie" – something upon which the prosecution strongly relied. It is unsurprising that the prosecution relied upon this evidence to show that the applicant had a sexual interest in prepubescent girls of C's age, and also that he had accessed websites of which "cutie" formed part of the web address.[16]The applicant unsuccessfully sought leave to appeal against those convictions. His defence had been that someone else must remotely have accessed his computer. The application for leave to appeal was comprehensively dismissed on all grounds.[17]At his trial in respect of the indictment with which we are concerned, the applicant's position was that the convictions were erroneous. In short, he was in fact innocent.[18]Given the nature of the arguments that have been advanced in the application for leave to appeal before us, it was necessary for the applicant's previous counsel to be asked questions about his conduct of the trial. In answer to those questions, a significant point relating to this aspect of the matter emerged. The applicant made a positive decision, which he endorsed in writing on counsel's brief, that he would call no evidence to support his assertion to the jury of his innocence in the earlier trial.[19]Mr Jarvis, who appears on behalf of the applicant before us (but did not appear at his trial), advances three grounds of appeal. The first is that the judge misdirected the jury on the elements of rape for the purposes of section 1(1) of the 1956 Act; he directed the jury that consent was not an element in the offence when, in fact, consent is an element in the offence.[20]The second ground relates to the evidence of bad character, to which we have referred. There are two aspects comprised within this ground: first, whether when he summed up the bad character evidence, the judge conflated two distinct issues, namely whether the applicant had a propensity to commit the offences charged; and secondly, whether the applicant had a sexual interest in prepubescent girls. There is also a subsidiary argument, namely that the judge failed to direct the jury as to the proper basis upon which they might conclude that the applicant was, in fact, innocent of the crimes of which he had been convicted.[21]The third ground concerns the direction that the judge gave about the fallibility of human memory. Mr Jarvis submits that, whilst the judge did give such a direction, in the circumstances of this case it fell short in pointing out the fallibility of the human memory and the possibility that C's memory, although genuinely believed, was in fact false.

Ground 1: Consent

[22]Section 14 of the 1956 Act is entitled "Indecent assault on a woman". Subsection (2) provided that a girl under the age of 16 could not consent to such an act. Counsel and the judge below proceeded on that basis, and so the jury was correctly directed that consent was irrelevant for the purposes of the four counts under section 14.[23]Unfortunately, the common understanding of counsel and the judge was that consent was also irrelevant to the count of rape. In that, they were mistaken. The 1956 Act contained separate offences for unlawful sexual intercourse with a girl under 13 (section 5), and between 13 and 16 (section 6), where consent is indeed irrelevant. Thus, it follows that the judge erred in directing the jury that consent was irrelevant to the rape count.[24]Mr Jarvis submits that that error undermines the safety of the conviction. We do not agree. As long ago as 1937, in R v Harling (1938) 26 Cr App R 127, a similar mistake was made. Humphreys J, giving the judgment of the court, observed that whilst consent was indeed an ingredient of the offence, that in order to negative consent the prosecution "would not need to prove much more than the age of the girl".[25]The same point was made in R v Howard (1966) 50 Cr App R 56, where Lord Parker CJ made the point that while consent could be a real issue for some girls under the age of 16, the suggestion in that case that consent was an issue for a 6 year old child was "idle".[26]In the context of this case, the same is true. C was a prepubescent child aged only 10. Her account was that these event occurred at school. Moreover, the applicant's defence was that nothing had happened; not that something had happened which might have been consensual. There was, on the evidence before them, no basis upon which the jury could doubt for a moment that if what C said was in fact accurate, it described events which occurred without consent.[27]In reality, had counsel and the judge appreciated the correct position, it might well have been mentioned, with a short accompanying observation, that it was not in issue. As a general proposition, whilst this error was unfortunate, it is important to focus on matters which are in issue. We do not accept Mr Jarvis' submission that a misdirection as to the ingredient of an offence necessarily renders the conviction unsafe. It depends upon the nature of the real issues.

Ground 2: Bad Character

[28]The core submission made by Mr Jarvis is that the judge conflated the applicant's alleged sexual interest in prepubescent girls and whether that interest would manifest itself in physical activity. He also submits that, by virtue of section 74(3) of the Police and Criminal Evidence Act 1984, the jury should have been directed positively that they could not take account of the convictions if the applicant satisfied them, on the balance of probabilities, that the convictions were erroneous.[29]We deal with the second point first. Section 74(3) creates a rebuttable presumption that a person is guilty of an offence of which he has been convicted. If a defendant in subsequent proceedings accepts the conviction, but denies that he is guilty, he must prove that on the balance of probabilities.[30]In this case the applicant indeed agreed that he had been convicted, but asserted – and it was a bare assertion – that he was wrongly convicted. Mr Jarvis is, of course, right that a direction on section 74(3) should have been given. Instead, the judge told the jury, on more than one occasion, that the applicant denied his guilt. The judge did not suggest that the convictions were conclusive. He left the question of their soundness to the jury in circumstances where the burden of proof in matters of dispute had been laid on the prosecution to the criminal standard. Mr Jarvis submits that it is impossible to fathom what the jury might have made of the denials in the absence of a more detailed direction.[31]We accept that further clarity in the directions would have been desirable, but we conclude that this point does not carry the applicant anywhere. His bare denial, unsupported by any evidence, could not rationally have led to the conclusion that he had rebutted the presumption. The jury knew that he had been convicted after a trial in which expert evidence had been given. That evidence was referred to in the agreed facts. The jury knew that there had been an unsuccessful attempt to appeal against those convictions. There was, in reality, nothing of any substance placed before the jury by the applicant on this issue.[32]On the broader points taken by Mr Jarvis under this ground, similarly we are unpersuaded. There is no doubt – and it is common ground – that the applicant's sexual interest in children was admissible in evidence. The way in which the evidence was approached by the judge accorded with the decisions of this court in R v D [2011] EWCA Crim 1474; [2013] 1 WLR 676, citing R v A [2009] EWCA Crim 153 at [15] and also R v B [2011] EWCA Crim 1630. The evidence was of obvious importance, not only because it illuminated the applicant's sexual interests, but also because a number of the websites he visited included the word "cutie".[33]We consider, with respect to Mr Jarvis, that the textual criticisms of the summing-up do not take account of the generality of what the judge said on this issue. He summed up at some length both what the prosecution said about this evidence and also what the defence said. He concluded by telling the jury this:
"Well, it is for you to decide, ladies and gentleman, whether these previous convictions … do in fact show that [the applicant] has a tendency to behave in this way. If you are not sure that the [applicant's] convictions show that he has a tendency, then you must ignore them."
[34]By ground 3, Mr Jarvis submits that the judge should have given the jury a much more comprehensive direction about the fallibility of human memory than he did. He submits that the failure to do so undermines the safety of the conviction. No such suggestion was made at trial. Mr Jarvis has reminded us of much academic research relating to memory and its potential frailty. He has also cited well-known passages from the judgments of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm), and Blue v Ashley [2017] EWHC 1928 (Comm). In those cases Leggatt J spoke extensively about the fallibility of human memory and adverted to one or two common misapprehensions about memory which have been identified in academic research. The nature of the cases was such that the core point being made was that there is a need to look for external, supporting evidence when individuals are recalling events of many years before, particularly (in the context of those case) events that happened in circumstances where it might be thought that the fine detail of, for example, conversations, would not be lodged in the mind. In the commercial context of those cases, it is as well to look at contemporaneous documentation, emails, texts and the like.[35]Both Mr Jarvis and Miss Hamilton (who appears for the prosecution) took us to a number of judicial commentaries on those observations, including those of Floyd LJ in Kogan v Martin [2019] EWCA Civ 1645; [2020] EMLR 4, and BXB v Watch Tower and Bible Tract Society of Pennsylvania [2020] EWHC 156 (QB) at [13] to [16].[36]In our judgment, the argument founded on these various cases, in the context of the application before us, is highly theoretical. The central issue for the jury was whether they could be sure that C's recollection of the core events was reliable. In addition to her account, they had the convictions, the website evidence, and that of the school friend.[37]The judge gave what might be called the usual direction favourable to the applicant about the disadvantages to him of dealing with historic allegations. But in this case the judge went further. He fashioned a direction drawn from the Crown Court Compendium dealing with recovered memory cases (which, we should emphasise, the instant case is not), which, in our view, more than adequately covered the issue referred to by Mr Jarvis. Having explained that dealing with matters after so long a time could make life difficult for the applicant, the judge continued:
"It may be, ladies and gentlemen, that tricks have been played on memories, and indeed leading individuals to generally believe that things happen when they did not. But you must take into consideration the circumstances that you have heard. Passage of time is likely to have affected the memories of each of the witnesses including the [applicant]. And bear in mind the passage of time may have put the [applicant] at a serious disadvantage. …"
[38]From that it can be seen that the judge confronted the very issue that has been of concern in the submission we have heard this morning. In short, it is submitted that he should have elaborated upon that or explained in more detail why it is that a genuine belief in a memory may not reflect the reality. We do not agree. It seems to us that the judge very fairly set out the issues that the jury had to determine and, having done so doing fairly and squarely, the jury were asked to consider the question of whether C's recollections were real recollections or false recollections.[39]It follows that we have concluded that there is no substance in any of the grounds of appeal that have advanced so eloquently this morning before us by Mr Jarvis and dealt with comprehensively in the extensive written materials with which we have been provided. We are satisfied that there is no question that this conviction is unsafe.[40]In those circumstances, it is unnecessary to consider separately the application for an extension of time. We refuse the application for the extension of time in which to apply for leave to appeal against conviction. The underlying reason for doing so is that we are satisfied that there is no substance in any of the grounds. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

Cited in 1 later judgment