R v HCF [2022] EWCA Crim 917

WARNING: reporting restrictions apply to the contents transcribed in this document. 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 917Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 23 June 2022
Before
LADY JUSTICE MACUR DBEMR JUSTICE JEREMY BAKERMRS JUSTICE ELLENBOGEN DBE
Between
REGINACrownV
Between
HCF__________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 A BAJWA QC appeared for Appellant.MS N MERRICK appeared for Crown._________J U D G M E N TTHIS 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
[1]We have previously indicated that we intend to allow this appeal, which implicitly means that we have accepted the admissibility of and give leave for the admission of fresh evidence.[2]Hereafter follows the short judgment in respect of the application before us. The following reporting restrictions apply.[3]Firstly, the provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. No matter relating to the complainant of the offence of sexual assault shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.[4]Secondly, the provisions of section 45A of the Youth Justice and Criminal Evidence Act 1999 apply. They are engaged in relation to the witness, “H”, who was aged 14. No report, save for those prepared for the purpose of Family Court proceedings if they do exist or are initiated, shall contain any material which is likely to identify her as a witness in this case during her lifetime, including but not restricted to her name, her relationship with either the appellant or the complainant, her address, her school or other educational establishment or her occupation or place of work in due course.[5]On 14 May 2021, the applicant was convicted of five counts of assault by beating and one count of sexual assault as alleged by his wife. He was sentenced to a 12-month community sentence with requirements to carry out 200 hours' unpaid work and participate in 20 days' rehabilitation activity requirements concurrent on all counts.[6]The allegations made by his wife were said to arise from the breakdown of their marriage. He denied them entirely.[7]His 12-year-old daughter (whom we shall refer to hereafter as "H") corroborated her mother's account in significant respect. She spoke of what we would describe to be a toxic atmosphere with outbursts of physical and sexual assaults by her father against her mother and in the presence of her and her much younger brother, "S".[8]She made her statement by ABE interview shortly after her father left the matrimonial home which became her evidence-in-chief. Cross-examination was pre-recorded pursuant to the provisions of section 28 of the Youth Justice and Criminal Evidence Act 1999.[9]This is an application for permission to appeal against conviction based upon fresh evidence of H's previous inconsistent statements and is referred to this Court by the single judge.[10]The applicant seeks leave, pursuant to section 23 of the Criminal Appeal Act 1968, to introduce 45 audio recordings, 43 independently prepared transcripts of the recordings and statements including from the applicant himself, about the manner in which he came into possession of the evidence and from a forensic expert regarding the inability to accurately date and time the conversations.[11]Objectively speaking H's evidence was of some considerable consequence in the case. Both prosecuting counsel, Ms Merrick, in her closing speech and the judge, in summing up the case, effectively referred to the possibility that H's evidence could be the deciding factor for the jury in determining between the competing accounts of the complainant and the defendant.[12]Ms Merrick in her closing speech referred to H as not having "an axe to grind" and as a "composed and honest witness" giving "a clearer, more honest picture of what was going on in that house in January 2020".[13]The background to the application however arises from the fact that the applicant has, following his arrest and removal from the family home prior to trial, covertly taped parts of some of his conversations with H during face-to-face and extensive telephone contact, in which he discussed the allegations made against him by her mother. During those conversations H, for whatever reason, clearly said in answer to the applicant's specific questioning that she had never witnessed the applicant physically or sexually abuse her mother and that her mother "exaggerated" matters.[14]It was the stated intention of the applicant's then counsel (Mr Harvey QC) to put this inconsistency to H during cross-examination. There is little doubt in our mind that he intended to do so since not only had a defence statement revealing the existence of the transcripts of the conversations referred to above been served, albeit they were not appended to the same, but the recordings were uploaded to the DCS together with partial transcripts of the recordings. We note that the uploading of those tapes was considerably later than it should have been, and it was entirely unsatisfactory given the advent of the ground rules hearing.[15]As it was, neither the audio recordings or the transcripts were deployed during the applicant's defence by reason of a misunderstanding arising during the ground rules hearing conducted on 19 and 20 January 2021. That is, Mr Harvey QC had drafted a series of questions which he intended to ask H arising from the transcribed audio tapes and served the same upon Ms Merrick. Ms Merrick thought that the number of questions could be reduced. During the ground rules hearing she expressed doubt as to the admissibility of the recordings:
"...but that matter aside, it doesn’t seem to me appropriate to be playing covert recordings to a 13-year-old child."
[16]Subsequently during the ground rules hearing since transcribed the judge said that she would "need some persuasion that they [that is the audio taped transcriptions] are admissible." She subsequently taxed Mr Harvey about them saying that she was "very concerned about them ... they are highly improper and abusive of the child" and commented upon the apparent extracted partial transcriptions saying that she could not see "how any Judge would admit them in their current form".[17]After further submissions, the transcript records that she said:
"Well at the moment, I am not convinced that they are admissible at all, and there will obviously need to be proper argument on that if you want to pursue that position."
[18]Mr Harvey patently misheard the judge, as was clear from a response dated 22 October 2021, sent by him to the Registrar of Criminal Appeals following instruction of new counsel and the waiver of privilege. The response appended a further Advice on Appeal dated 8 July, which had been uploaded to the DCS system. In paragraph 3 of that Advice, we read:
"The most troubling aspect of the transcript, which shocked us all, was to read that Her Honour Judge Wood is reported as having said ... 'All right. Well at the moment, I am not convinced that they are admissible at all and there will obviously need to be proper argument on that if you want to pursue that position ...' That was not what I heard. Nor was it what [his instructing solicitor or the applicant] heard over the CVP system. All we heard, or thought we heard if the transcription is correct, was the judge saying that she was not convinced that they were admissible at all. Based upon her attitude towards them, revealed by her comments made over the preceding pages, this was unsurprising. Taken, in terms of what we thought we heard said, and how it was said, it was clearly understood to be her ruling that the recorded conversations were inadmissible. As far as we were concerned, and understood, the determination of that question was pivotal to the formulation of the proposed cross-examination questions, which was the exercise that we then immediately embarked upon. Having, as we understood, so 'ruled', the proposals for cross-examination were drafted accordingly."
[19]In paragraph 9 of the further Advice on Appeal he goes on to say:
"It goes without saying that ... had we heard the judge provide for a further opportunity for written/further submissions, we would have taken it. The contents of the telephone conversations would have represented the backbone of the defence. Moreover, had [the applicant and instructing solicitor] appreciated the position... I would have been specifically instructed to do so. There would have been no earthly reason for further submissions not to be lodged and made during the week that followed and in advance of the ... cross-examination."
[20]Ms Merrick, in the Respondent's Notice "accepts and cannot comment further on the mistaken view formed by Stephen Harvey QC ... that the judge had made a ruling that the convert recordings were inadmissible". However, as she states, it was clear to the prosecution and is reflected in the transcript that the judge did not make such a ruling. Rather the judge indicated further legal argument on the point was necessary.[21]Section 23(1) of the Criminal Appeal Act 1968 provides:
"For the purposes of an appeal, or an application for leave to appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice... (c) receive any evidence which was not adduced in the proceedings from which the appeal lies."
[22]Pursuant to section 23(2) of the Act:
"The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to— (a)whether the evidence appears to the Court to be capable of belief; (b)whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c)whether the evidence would have been admissible in the proceedings... (d)whether there is a reasonable explanation for the failure to adduce..."
[23]The answer to these questions are not determinative of any application but may well inform the decision as to whether to admit fresh evidence. Is there a reasonable explanation for the failure to adduce the evidence in the proceedings?[24]Dealing first with subsection 2(d), we conclude that there was a reasonable explanation. The ground rules hearing was conducted remotely on CVP. Mr Harvey indicates that he was not aware of a technical issue or any particular disruption to the link. Regrettably, it is not unknown, and in the experience of members of this Court, for there to be poor transmission and distortion on the link which is not apparent to one or other parties. Certainly, it was not apparent to Ms Merrick either.[25]Mr Harvey QC raises concerns as to the quality or accuracy of the transcription of the hearing. However, we do not consider it necessary or proportionate to devote time to this point since it seems clear that Mr Harvey proceeded under a genuine misapprehension that the judge ruled against him. This is not a case where he thought better of it or of another counsel taking on the case forming a different view.[26]We are not persuaded by Ms Merrick's tentative submission that Mr Harvey could or should have renewed his application before the trial judge. This would be entirely unfair to H since she had not been asked about why she came to make the responses she did and we would have expected the prosecution and certainly Ms Merrick, in reality, to have loudly protested at that default. Is the fresh evidence capable of belief?[27]The fact that H refuted the allegations of her mother when speaking to the father does not appear to be in issue. The issue for the prosecution is the manner in which she came to make those comments; that is, we do not understand Ms Merrick to challenge the authenticity of the tapes rather than weight that should be attached to them. Ms Merrick makes several points including that the applicant taped the conversations covertly, he manipulated the conversation into discussion of the allegations, there is imbalance of power and an abuse of trust and the tapes are not complete records of the conversation. All these points are verifiable on the information and the materials available and the argument she makes are well grounded, but the fact of the inconsistent statements remain and the explanation for them is unknown. H was not questioned about them for the obvious reasons we indicate above. Were the tape transcripts admissible?[28]The answer is clearly"yes", albeit that it would and will be necessary to lay down very clear ground rules as to the manner in which H will be questioned about them, in terms of transcript, or specific parts of the tape recording being made. This is a matter for the trial judge in due course. As to this see R v PMH [2019] 1 Cr App R(S) 27. The tapes and/or transcripts and/or challenge are clearly relevant to the credibility of NR. Does it afford a ground for allowing the appeal?[29]Ms Merrick, in her usual straightforward fashion frankly concedes that "it is accepted the recordings were capable of undermining the Crown's case that the applicant was 'a controlling and abusive man who demanded obedience from his wife and family'". This latter point may be, but it is a question of primary fact for the jury and not this Court. We are not persuaded that there is any reliable basis to suggest, and she acknowledges the same, that leading counsel thought better of it. However, as we made clear during our discussions this morning, Ms Merrick was not to know at that stage that Mr Harvey was labouring under a misapprehension and her instinct may not have been in any way untoward.[30]In conclusion and in all the circumstances, we do consider it expedient and in the interests of justice to admit the fresh evidence. Consequently, we determine the conviction to be unsafe. We grant leave to appeal and grant the appeal.[31]Ms Merrick on behalf of the respondent seeks that this appeal be retried. Mr Bajwa, on behalf of the appellant, maintains that in the interest of justice this is no longer a case that should be tried. He maintains that since this is now 2½ years old and not so serious in terms of the criminal offences calendar, that it would be appropriate not to order a retrial; it is disproportionate not least because the appellant has served most of the community penalty.[32]We take the view that these are serious offences and that there is no good reason why there should not be a retrial. In the circumstances, we intend to grant the application of Ms Merrick and give the following directions:• We have allowed the appeal and quashed the convictions.• We order a retrial upon the same counts.• A fresh indictment shall be served in accordance with the Criminal Procedure Rule 10.8(2), which requires that the prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after today. The appellant will be re-arraigned on the fresh indictment within 2 months.[33]We make supplementary orders as follows. First of all, the venue for retrial should be determined by the presiding judge. Ms Merrick, it is the presiding judge of the south-eastern circuit; is that correct? SUBSEQUENTLY, THE PROSECUTION OFFERED NO EVIDENCE AND CONSEQUENTLY, NO RETRIAL TOOK PLACE34. 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 1JS35. Tel No: 020 7404 140036. Email: rcj@epiqglobal.co.uk