R v Denise Povall [2025] EWCA Crim 802

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.[2025] EWCA Crim 802Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday, 5 June 2025
Before
LORD JUSTICE WILLIAM DAVISMR JUSTICE WALLMRS JUSTICE HILL DBE
Between
REXCrownV
Between
DENISE POVALL__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MISS S PROCTOR appeared for AppellantMR S KHAN appeared for CrownLord Justice William Davis delivered the judgment orally at the conclusion of the hearing on 5 th June 2025. Following his death, the judgment has been approved by Mr Justice Wall.J U D G M E N T

LORD JUSTICE WILLIAM DAVIS:

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under these provisions, where an allegation is made that 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 the offence.[2]Between 3 June and 7 June 2024, Denise Povall was tried in the Crown Court at York on an indictment containing one count of sexual assault of a child under 13 and six counts of causing or inciting a child under 13 to engage in sexual activity. After conviction on those counts by the jury she was sentenced to a total of eight years' imprisonment. She now appeals against her convictions with the leave of the single judge.[3]The indictment related to events between September 2007 and August 2008. At that time the complainant, to whom we shall refer as C1, was a boy in year 6 at his school in North Yorkshire. At the start of the school year he was aged 10. The appellant was a teaching assistant at the school. She was in her forties. She had children of a similar age to C1. Her children and C1 had become friendly prior to 2007.[4]There came a point when C1 would visit the appellant's home address. He would stay overnight on occasion. The sexual assault was the first offence in time. C1 was on the sofa at the appellant's home. The appellant's children had gone to bed. The appellant kissed him on the lips. Thereafter the appellant caused or incited C1 to engage in various sexual acts: digital penetration by him of her vagina (count 2), penile penetration by him of her vagina (counts 3 and 4), penetration of the appellant's mouth with C1's penis (counts 5 and 6), and touching the appellant's breasts on at least five occasions (count 7).[5]C1 did not report to the police what had happened until 2022. His evidence was obtained via ABE interviews. He said that at the time of the sexual activity he believed that he loved the appellant. He said that there had been text exchanges between them about their love for each other. C1's mother gave evidence that she on one occasion had found a mobile telephone in his bedroom. The phone had an exchange of messages between the appellant and C1. The appellant's message was to this effect:
"I love you. I want to run away with you. I can't wait until you are old enough to run away with me."
C1 had replied:
"I love you too I want to run away with you."
C1's mother had challenged him about these messages. He had said that the appellant had bought him the phone. The messages meant nothing. The appellant must have been drunk. C1 persuaded his mother not to confront the appellant. C1 also said that on one occasion one of the appellant’s children had walked in on him and the appellant when they were engaged in sexual activity.[6]Although C1 did not report what had happened to the police until 2022, he had in about 2010 told his foster father and the foster father's son about engaging in sexual activity with the appellant.[7]The appellant was arrested and interviewed in October 2022. She answered the questions put to her. She said that there had never been any sexual activity involving her and C1. She agreed that she knew him and that he had come to her house from time to time. Initially in her interview she said that she had not given C1 a mobile telephone. Later in the interview she said that this was a lie and that she had given him a phone.[8]In the course of the trial, the appellant's evidence was to the same effect as her explanation to the police. She agreed that she had sent a message to C1 saying "I love you". This had been sent by mistake. It was intended for her son. It did not include the detail as set out by C1's mother.[9]The appellant's sons gave evidence. Both said that whilst C1 had come to their family home, there had never been anything untoward between him and their mother. The son identified by C1 as having interrupted sexual activity between his mother and C1 denied that there had ever been such an incident. The appellant also called her husband to give evidence.[10]There is a single ground of appeal. It is said that the trial judge intervened inappropriately during the evidence both of the appellant and the witnesses she called. The interventions created the impression that the appellant was in some way reprehensible and that her evidence was not worthy of belief. As a result, the convictions sustained by the appellant were unsafe.[11]There are many decisions of this court dealing with the issue raised in this appeal. The principles are conveniently summarised in Zarezadeh[2011] EWCA Crim 271 at paragraphs 17 and 18:
"17. The approach traditionally adopted to appeals raising this issue is encapsulated in the decision of the Court of Appeal Criminal Division in Hulusi and Purvis 1974 Vol 58 Criminal Appeal Reports 378 in the passage in the judgment of the court given by Lord Justice Lawton at p.382 where he says as follow: 'Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified, but the interventions which give rise to a quashing of a conviction are really threefold: those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, in cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.' 18. We have been helpfully referred to a number of recent authorities in which these principles have been applied. In the case of Copsey and Copsey 2008 EWCA Crim 2043 the grounds of appeal were that the judge made disparaging and prejudicial remarks about important defence evidence and made excessive and prejudicial interventions during the course of the evidence of the appellants, with the result that he would have been perceived by the jury as not believing or accepting the defendants' case. In that case the interventions were set out in some detail and, after doing so, the court expressed its view as follows: 'In our view this was a case in which the Judge, by his comments and the manner of his questioning, to which we have referred, gave the clear impression to the jury that he doubted the case for Mr Copsey. He also took on the role of cross-examining in a way which is more suitable for a prosecuting counsel than for a judge. The frequency and nature of the questioning causes us particular concern, as does the Judge's statement that what was an important part of Mr Copsey's case was "bizarre."
Therefore we have reached the conclusion that the appellant did not have a fair trial ... and therefore his conviction was unsafe.'"[12]Every case will be fact sensitive. Here, the principal argument is that the judge implicitly or explicitly attacked the credibility of the witnesses. Thus, the critical question is whether the interventions of the judge invited the jury to disbelieve the evidence called by the appellant or gave the clear impression that he did not believe her case.[13]In the course of oral argument, as a secondary point, it was said that the appellant was inhibited in giving her evidence. The evidence she gave was affected by the approach of the judge. It is not being argued that this is a case in which the prisoner simply could not "do himself justice" - to use the words used by Lawton LJ. Therefore, as counsel very properly acknowledged in the course of oral submissions, this is a secondary issue which should not deflect us from the primary case.[14]The grounds of appeal are comprehensive and argue the position with some force. It is said that the judge repeatedly interrupted both examination-in-chief and cross-examination of defence witnesses in order to ask questions which were akin to cross-examination. The transcripts of the evidence of the appellant and her three witnesses cover 97 pages. For the proposition that the judge "repeatedly interrupted" their evidence to be made out, we would expect to see interruptions on at least every third or fourth page. Moreover, for the interruptions and interventions truly to be prejudicial in nature, we would expect the nature of the judge's contributions to have been seriously detrimental to the appellant's case - comments such as those that were expressed in the case of Copsey (to which we have already referred) might be an example.[15]We should say straightaway that we do not consider, on a fair reading of the transcripts, that there were repeated interruptions. We also consider that whilst on occasion the interventions were unnecessary and/or strayed towards implied criticism of the appellant's case, the overall effect fell far short of that which is submitted today by the appellant.[16]We shall deal with some of the matters which have been raised in the course of written and oral submissions. The first intervention in the evidence of the appellant comes at page 7 of the transcript. The appellant was asked by her own counsel about taking her older son to football practice. This appeared to involve a 10 minute car drive from her home. The questioning went on:
"Q. And would you do that on your own or did you have other people? A. On my own. Sometimes Jordan would come with me. Q. We know that Jordan is 14 months younger so he's, what, 8/9 at this time that we're talking about? A. About 9, yes."
At this point the Recorder intervened:
"THE RECORDER: If you took him on your own, who would be looking after Jordan?"
Defence counsel asked if the witness had heard the question, to which she said she had not. The question was repeated:
"THE RECORDER: If you took him on your own, who would be looking after Jordan? A. Jordan would be downstairs in the front room on his own. THE RECORDER: At the age of 8. A. Nine."
[17]This passage of evidence was not of any apparent relevance to any issue in the trial, albeit that the issue had been introduced by the appellant's counsel. The judge's intervention was unnecessary. However we do not consider it was any more than that. We do not consider that the detrimental effect argued for by the appellant today is properly made out on any fair reading of that exchange.[18]The next intervention of any supposed significance is at page 15 of the transcript. Questions were asked by counsel about the purchase by the appellant of a telephone for C1. This was an issue of substance, particularly in the light of the evidence about messaging between the appellant and C1. When the appellant had given her account of the purchase of the telephone, there was this exchange in which

the judge investigated why the appellant had bought a telephone for C1:

"THE RECORDER: Why did you do that? A. I don't know. I'm too soft. THE RECORDER: Can I ask you this: why did your 10-year-old son have a mobile phone? A. Just for emergency services. They didn't have things like social media or -- it was just to text message. THE RECORDER: Did you think that it might be worth asking his mother whether she minded him having a mobile phone purchased by you? A I. thought he'd have gone home and told her. THE RECORDER: Right."
[19]Whilst this intervention may have gone beyond pure clarification, it was a reasonable enquiry for the judge to make. The judge is criticised first for asking why the appellant's son had a telephone when this was irrelevant. With respect this criticism is misplaced. The appellant's answer demonstrated that, as might be expected, the purpose of a 10-year-old having a mobile telephone would be very limited. It put into context the fact that the appellant had bought a telephone for a boy who was merely an occasional visitor to her home. The nature of the Recorder's questioning in our judgment was not confrontational, as was argued.[20]On the next page of the transcript questions about the mobile telephone continued.

The judge intervened as follows:

"THE RECORDER: Do you accept that he [a reference to C1] had your number? I think you do, don't you? A. Yes. THE RECORDER: How did he get it? A. He must have put it in. THE RECORDER: Yes, but we did he get it from? A. My mobile phone. THE RECORDER: How did he get your mobile phone? A. Must have looked at it. THE RECORDER: Right."
[21]It is submitted that these questions may have created the impression that the judge did not accept the appellant's account. This submission in our view is unsupported by the nature of the questions asked and the context in which they were asked. The appellant was being examined about the telephone. She had been asked about exchanging numbers with C1. She had given no clear answer. The judge clarified the position. If the argument is that by concluding this short passage of questions with the word "right" the judge was passing some kind of comment on the veracity of the answers, that is with respect an over-sensitive interpretation of the judge's position. It is apparent from other parts of the transcript that the judge regularly used the word "right" when he concluded questions on a particular topic, irrespective of the controversy or otherwise surrounding the questions.[22]A similar argument is raised in respect of a brief intervention by the judge during questions of the appellant by her counsel relating to the text sent to C1. Her case was that it was sent accidentally:
"Q. When you sent that message to him accidentally, did you send another message saying oh sorry, I didn't mean to send that to you -- A. No. Q -- or anything like that? Did you ever get any response from him? A. No. Q. To that message?"
At which point the Recorder intervened:
"THE RECORDER: Why didn't you correct yourself, tell him that it wasn't meant for him? A. Because I didn't realise til I got home and I asked Callum. He'd been to a party and he came home and I said did you get your text and he said, 'What text?' No, I didn't receive a text. So then I realise that I'd sent it to C1. THE RECORDER: So what did you do about that? A. I didn't do anything til I got to school the next school day on the Monday and said you do realise that wasn't for you."
[23]The grounds of appeal argue that the jury may have inferred from the judge's questions that he did not believe the appellant and that her account was incredible. With the very greatest of respect to counsel, we cannot see any basis for asserting that any such inference might have been drawn. The judge asked two questions which allowed the appellant to give an explanation which otherwise she may well not have done. It may not have been a compelling explanation but that was not due to anything said or done by the judge. It was her evidence and her explanation. In our view, the submission made by the appellant in relation to this exchange is to an extent symptomatic of her case as a whole on this appeal. It asserts prejudice without any proper foundation for the assertion.[24]We do not propose to recite such further examples as there were of interventions by the judge during the appellant's examination-in-chief. In our judgment none was significant. They fell far short of what is said in the ground of appeal, namely that the judge's questions denied the appellant the opportunity to put her case before the jury in a fair and clear manner.[25]It is said that the questioning by the judge continued throughout the cross-examination of the appellant by prosecution counsel. Cross-examination begins at page 20 of the transcript. The first intervention of any note did not occur until page 29 of the transcript. There were interventions thereafter at pages 30, 33, 45 and 48. It is, with respect, an exaggeration of the position to say that the judge's questioning continued throughout the cross-examination. The grounds say:
"The repeated interruption and questioning gave the clear impression that he (the judge) did not accept the account of the appellant."
Since in our judgment the questioning was not repeated, there can have been no impression given as suggested. Moreover, whether individually or in combination the interventions were not such as to prevent the appellant from presenting her case. There is one matter relating to the appellant's cross-examination to which we shall return in due course.[26]Similar criticism is made of the judge in relation to his interventions during the evidence of the appellant's witnesses. As an example, it is said that the judge interrupted the examination-in-chief of the appellant's husband "with aggressive questioning". This passage is cited:
"[Defence counsel]: How many hours a week would you work? A. I used to -- I could do between 45 to 50 but mainly was early mornings. I'd go in and check that the store was ready for opening. Walk the night-shift round. THE RECORDER: Just tell us what your hours were, Mr Povall. A. Sorry. 45 -- 45/48 hours. THE RECORDER: What time did you start and what time did you finish during the week? A. They could vary. Always I was in at between 5 and 6."
[27]It is said that this gave the impression that the judge did not accept the evidence of the witness. In our view this exchange rather demonstrated mild impatience with the witness's apparent inability to answer the question he had been asked. That is not to say that mild impatience on the part of the judge was in any way to be commended. On the other hand it gave no indication of the judge's opinion of the witness's credibility.[28]We do not propose to engage in a page by page analysis of the evidence of the witnesses called on behalf of the appellant. We accept that there were points in the evidence, particularly of the appellant's husband, where the judge might be said to have joined in the questioning when prosecution counsel was cross-examining. This was not appropriate. However, the passages to which we have been directed did not go so far, as has been argued, to render the trial unfair.[29]In relation to the appellant's older son, no specific passages are cited in the grounds of appeal. This is perhaps unsurprising given the paucity of any intervention by the judge in the 11 pages of the transcript relating to that witness's evidence. Yet we observe the grounds assert that the judge continued to interrupt the evidence of both sons in a way which have led the jury to being given the impression that the judge was dissatisfied with their answers.[30]In relation to the younger son, it is said that the judge challenged the account given by the witness concerning the text message sent by the appellant to C1. The exchange complained of is as follows. It begins with questions from counsel:
"MS PROCTOR: What involvement did you have in that? A. Because my mum told me. Q. That's not the same. Did you see this yourself? A. Yeah. I did see the message. Yeah. Q. Were you there when it was sent? A. I wasn't there when it was sent but I did see the message though. Q. Were you anything to do with any discussions about it? THE RECORDER: He saw which message? A. The message -- THE RECORDER: The 'I love you' message? A. Yeah. That was meant for my brother ... THE RECORDER: How did you come to be looking at that message? A. Because my mum's phone -- well, she never hid her phone. It was never hidden from us or anything. She didn't have anything to hide. THE RECORDER: Why were you looking at her phone and her messages? A. She always -- like I said, there was nothing to hide from the phone. THE RECORDER: That may be but why were you looking at her phone at all? A. I don't understand. I've just told you. (Pause) THE RECORDER: Yes."
[31]We agree that it is at least arguable that the judge strayed beyond the bounds of clarifying the evidence of the witness at this point. He was entitled to clarify which message the witness was talking about but what he went on to do was to engage in more like cross-examination than clarification. It may be that the judge reached that conclusion himself since he did not obtain an answer to the last question he had asked, yet he did not pursue the matter. In our judgment, overall this passage of evidence did not amount to a challenge to the witness's account. It did not involve any implied suggestion that the witness's evidence was not credible.[32]The respondent accepts that at one point midway through her evidence-in-chief the judge asked questions of the appellant which could fairly be described as cross-examination. This is the point to which we referred earlier and to which we now return. The passage appears at page 17 of the transcript. Question by defence counsel:
"Q. Why was it that your husband didn't like him? [a reference to C1] A. He's just said he didn't like him. It was just his attitude. He thought he was trouble. THE RECORDER: So you deliberately didn't tell your husband, is that right? A. Yes. THE RECORDER: And yet you bought C1 the phone in front of your two other sons taking the risk that they might tell your husband, is that the position? A. Yes."
[33]We agree with the analysis of the respondent in relation to this passage of evidence. There was one other passage of evidence in a similar vein which occurred in the course of the younger son's evidence. We are satisfied that the judge fell into clear error when he engaged in such questioning. However, these were two short parts of the evidence which, as we have said, covered 97 pages of transcript. It is not realistic to suggest that these two errors by the judge vitiated the fairness of the trial.[34]We are satisfied that the trial as a whole was fair. The only criticism made of the summing-up is the passage in which the judge dealt with the competing accounts in relation to the appellant's younger son walking in when the appellant and C1 were engaged in sexual activity. It is unnecessary for us to descend to particulars in respect of this issue. Even if there were any validity in the criticism (of which we are unpersuaded) this would not affect the overall assessment of the summing-up as being fair and balanced. That is an assessment very fairly made by the appellant's counsel in the course of the hearing today.[35]Taking into account all of those matters, we are satisfied that such errors as the judge made did not affect the safety of the convictions. It follows that this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE36. Tel No: 020 7404 140037. Email: rcj@epiqglobal.co.uk