R v Raymond Harrison [2022] EWCA Crim 323

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.[2022] EWCA Crim 323Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 10 February 2022
Before
LADY JUSTICE MACUR DBEMR JUSTICE LAVENDERMR JUSTICE HILLIARD
Between
REGINACrownV
Between
RAYMOND HARRISON__________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)_________MS L BLACKWELL QC appeared for Appellant.MS K WHITTLESTONE appeared for Crown.J U D G M E N TNOTE – THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981.  IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.

LADY JUSTICE MACUR:

[1]This is an appeal against conviction with leave of the single judge.[2]The trial from which the appeal emanates involves allegations of sexual offences. There has already been indication that the provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence and that no report shall been made that reveals the identity of either of the complainants during their lifetime, if it is likely to lead members of the public to identify them as the victims of that offence. However, there will be a further restriction in relation to reporting of this case since we intend to allow the appeal against conviction and grant leave to the prosecution to retry the appellant in circumstances indicated by the directions that we make and which appear at the end of this short judgment.[3]The appeal was to be advanced in relation to six draft grounds. As it is, we intend, as did the single judge in giving leave, to focus upon only one of them; that is that the judge erred in refusing to properly set out the elements or ingredients of the offences, or the issues relating to complainants' ages and dates of alleged offending, in his directions to the jury despite defence counsel's submissions on these points. As regards the other grounds we need say nothing further.[4]The Court notes that all counts on the indictment charge offences contrary to the Sexual Offences Act 1956 or the Indecency with Children Act 1960. The ‘elements’ of those offences, in so far as they charge indecent assault and rape, must be seen in the light of the existing legislation at the time. Therefore, so far as the offences of indecent assault are concerned, it would be necessary for the prosecution to make the jury sure of first, an intentional assault, second, that it was capable of being considered by right-minded people as being indecent, and third, that the accused intended to commit such an assault knowing that it was likely to be considered as indecent. The age of the complainant is significant. A complainant under the age of 16 is incapable of giving consent. Whilst there could be issues of reasonable belief by an accused as to the age of a complainant, that need not detain us for long in this case.[5]So far as rape is concerned, for that is what was charged rather than sexual intercourse with a person under the age of 13, the age of the complainant is irrelevant to the necessity of the prosecution to prove lack of consent. Whilst this may be inferred from the evidence, it is obviously an important ingredient of the offence of rape and one that cannot, certainly in circumstances that appertained in this case, be agreed.[6]So far as offences of indecency with children are concerned, a significant amendment of the provisions of section 1 took place specifying the age of 16 years from 14 years. However, offences committed before 1 October 1997 continue to require proof that the child was under the age of 14.[7]These essential ingredients of the offences charged in the indictment against this appellant may be established to the jury’s satisfaction on evidence that is to be called or was called. However, the issue for this Court was whether, in the circumstances of this case or at all, it was appropriate for the Recorder to sum up the issue of the ingredients of each offence in the following terms:
"The indictment. Happily your role in relation to the indictment, presumably you were a bit concerned when you heard all of those counts and all those different charges. Your role is very straightforward. What I’ve done is, Have you reached your verdicts? is the question I’ve posed and take count 1 as an example. It’s agreed that the description given by [Complainant 1] as to what happened to her, namely the touching of her breasts and body amounts to indecent assault. Therefore the only question that you need to ask yourself is whether you are sure that that occurred. If you are sure, then the correct verdict is guilty. If you are less sure, then the correct verdict is not guilty and that is the approach that you should adopt in relation to all of the counts. It is a very simple question for you to ask yourselves because it is agreed that all of the elements of all of the different offences alleged have been made out on the face of it. The only issue you have to decide is whether you are sure on the evidence that has been given in relation to each of them."
[8]As we indicate above, it is obvious that, so far as matters of indecent assault and rape are concerned, the jury must be sure of more than the actus reus of those offences. The fact, that the defence was, I deny that this happened at all but I agree that if it did happen as the complainants say then the offences were committed, does not entitle the judge to avoid directing the jury as to the necessary mens rea. Neither, do we consider, is it likely that the defendant’s mens rea at the time of offending could be conceded by counsel if , as was the case here, the accused was saying that the events did not happen.[9]The indictment furthermore contains two multiple offence counts, these being counts 5 (rape) and count 10 (indecent assault), where the prosecution specify that on at least two other occasions that either the rape or the indecent assault occurred. Not only did the Recorder fail to direct the jury upon the ingredients of the offences per se but neither did he direct the jury upon the necessity that they should be sure that the offences as alleged did occur more than twice more to the specific offence charging either the rape or the indecent assault.[10]Finally, the ages of the complainants have obvious import in relation to some of the counts. It was necessary for the jury to be sure that the alleged incident of indecency with a child happened before the relevant complainant reached the age of 14. The video recorded interviews of the complainant played to the jury suggests she may have been over 14. The jury received no adequate assistance on this point.[11]The dates specified in the indictment are not always, but may in some circumstances be material averments. Consequently it was necessary for the Recorder in relation to certain of the offences, to have made that clear to the jury; unless the jury were sure that the offences took place within the time period asserted, they should return not guilty verdicts.[12]Regardless of the case run by the defendant that it was incumbent upon the Recorder to direct the jury on any possible defence that may have arisen from the evidence.[13]Ms Whittlestone concedes that these issues now do give her cause for concern in voicing her agreement with the Recorder as to the manner in which he indicated that he intended to sum the case up.[14]Ms Blackwell QC, who appears on behalf of the appellant, did attempt on the day following her apparent agreement with the intended direction in this respect, to persuade the Recorder to at least direct the jury on the relevant ingredients of the offences of rape and indecency with a child as well as indecent assault. Even then, if she had persuaded the Recorder to do so, she frankly concedes that she would have failed to indicate that the issue of consent was a matter that would have to be dealt with in relation to the rape, and the matter of age specifically in relation to the framing of the indictment, not merely by reason of going to suggest lack of credibility, and the number of times which the jury must be sure the offences had taken place.[15]It is regrettable, to say the least, that the outcome of this appeal means that two witnesses, who have indicated in their impact statements the trauma which followed them reliving the complaints of childhood abuse, must face the prospect of a retrial.[16]We do not suggest by allowing this appeal that there was insufficient evidence upon which the case could proceed or upon which the jury could have been properly directed on certain of the counts. However, it follows that there needs to be significant and urgent attention given to the framing of the indictment before this case is retried.[17]We thank counsel for their frank concessions of error on their respective parts. In doing so they have acknowledged their professional responsibility to ensure the efficient dispatch of trials subject to the necessity to observe due process. We obviously recognise, as do they in hindsight, that there has been an element of distraction for all concerned.[18]Therefore, this appeal against conviction is allowed. We will quash the convictions, and all of them, in relation to the 12-count indictment. We order a retrial on all counts as may be amended in light of this judgment. The fresh indictment is to be served upon the relevant Crown Court officer not more than 28 days from today. The appellant will be re-arraigned on the fresh indictment within 2 months.[19]We will direct that the venue for the retrial should be determined by the presiding judge for the Northern Circuit who should also allocate the judge to try this case.[20]Any question of bail shall be determined by the Crown Court. Will there be an application Ms Blackwell? MS BLACKWELL: There will. LADY JUSTICE MACUR: That application to be made in the usual form, before a judge of the Crown Court, as designated by the presiding judge of the Northern Circuit. We make an order under section 4(2) of the Contempt of Court Act 1981, which restricts the reporting of these proceedings until after the conclusion of the retrial. That pertains to all matters that have been specified in this hearing today and in the judgment, short though it is, that follows. Are there any matters arising Ms Blackwell? MS BLACKWELL: I think not. The issue of bail was the main one. LADY JUSTICE MACUR: Ms Whittlestone? MS WHITTLESTONE: No thank you. 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 1JS21. Tel No: 020 7404 140022. Email: rcj@epiqglobal.co.uk