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Cite as: [2000] EWCA Crim 27

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TURNER, R v. [2000] EWCA Crim 27 (27th March, 2000)

Case No: 1999/01555/X3
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 27th March 2000

B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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	REGINA
	- and -
	MICHAEL JOHN TURNER

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mrs H Grunwald Esq, QC(Mr D Haeems) appeared on behalf of the appellant(instructed for the Appellant)
Mr J Bullen Esq (Mr Shaw) (instructed by for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 29th January 1999 in the Crown Court at Winchester before Mr Justice Butterfield and a jury, the appellant was convicted on eleven counts of serious sexual offences against children, by a majority verdict in every case, five of those verdicts being 10:2 and six being 11:1. He was sentenced to a total of 12 years' imprisonment. He now appeals against those convictions by the leave of the Full Court.
2. The allegations were made by two complainants, both of whom were the nieces or half-nieces of the appellant. The offences took place a very long time ago indeed. Counts 1 and 2 were counts of rape against the complainant D. Count 1 was placed between 4th June 1975 and 3rd June 1978 (over 20 years before trial). At that time the complainant would have been between 12 and 15, and the appellant would have been seven years older. Count 2 (rape) was said to have occurred between June and October 1980, 18 years before trial, when the complainant D was 17 and the appellant 24. The remaining nine counts concerned the complainant C, the counts being six counts of rape, one of buggery, one of false imprisonment, and one of assault occasioning actual bodily harm. These were said to have occurred in the period 1984 to 1986, when the complainant was between 14 and 16, and the appellant was fourteen years' older.
3. His defence was a total denial of all charges, though he did admit to a single act of consensual sex with D, on an occasion other than alleged in Counts 1 and 2.
4. The appeal is put forward on four grounds:
1) That the proceedings should have been stayed as constituting an abuse of the process of the court, because no fair trial could be had, and it would be unfair to try him.
2) The jury should have been given the full corroboration warning in relation to the evidence of both complainants.
3) The verdicts were against the weight of evidence.
4) There was reason to question the jury's verdicts because of the order in which those verdicts were given, the difficulty in seeing rhyme or reason in the number dissenting in the majority verdicts, and questions as to comprehension raised by the contents of various notes from the jury.
5. So far as we are concerned, the first ground of appeal is the substantial one and it is on that that we will concentrate. There are three separate strands to the abuse of process grounds:
a) C had gone to the police in 1985 or 1986 and made a contemporaneous complaint against the appellant at a time when all but the last two counts against the appellant were alleged to have been committed. The only charge brought as a result of that complaint was a single allegation of indecent assault on a girl aged 15 years, committed in a car. No evidence was offered, and the appellant was discharged on 12th August 1986. Nothing else is certain about that complaint because the police routinely destroyed the file - the witness statement, the police report, the record of interview and any correspondence with the defence. The appellant's case is that the destruction by the police of all witness statements and other documents irreparably prejudiced the defence. We deal with this from paragraphs 6 to 22.
b) In 1997 those allegations re-surfaced, when the appellant's daughter (complainant E, aged 12) complained of having been indecently assaulted by him. Her mother also complained that he had threatened to kill her. Complainant C's witness statement shows that the police involved in that incident called on her to ask her to "redo her statement" - presumably the 1985-1986 statement. It is not clear why Complainant D came forward then to make her first statement at that time, 17 years after the event. Both E's allegations of indecent assault on her and her mother's of threats to kill were withdrawn. Yet despite this the appellant could not investigate C and D's delay in complaining because of the nature of the withdrawn allegations, and their prejudicial effect. We deal with this from paragraphs 23 to 32.
c) Lastly, there are what we might describe as the usual difficulties confronting a defendant preparing a defence in relation to matters between 17 and 12 years old. Sex offenders often achieve their victims' silence by threats, and this appellant had a reputation for violence. Where that is the case the courts are understandably unsympathetic to difficulties caused by delay. But the real difficulties here were the police destruction of the 1985-1986 documents, and the consequent loss of the best opportunity of testing C's (and to a lesser extent) D's credibility.
Ground a): Destruction of the 1985-1986 court papers
6. No contemporaneous complaint was made by D in relation to Counts 1 and 2, which allege rapes on her, probably in 1976 and 1980. In evidence she was to say that she had told a girlfriend, Linda Tomlinson, about what had happened, but no-one else. She did not tell her mother. She said in evidence that a factor in not complaining was that she was frightened of her uncle, and that he had a violent reputation. The first and only statement the defence have seen of hers was dated 04.09.97, 21 years after the first alleged rape on her.
7. But the complainant C did go to the police in late 1985 or early-1986, that is to say contemporaneously with the offences alleged by her in Counts 4 to 11. It is now for practical purposes impossible to be sure what then happened. Apparently, so we were told, this police force routinely destroys documentation after three years. That has happened here, and there is no record of what documents were destroyed. All that survives in the way of contemporaneous documents are first, a magistrates' court record which records that the defendant was Michael John Turner, that the nature of the offence was that he:
"... indecently assaulted a girl of the age of fifteen years, contrary to Section 14 of the Sexual Offences Act, 1956",
that the date of the offence was between 30.6.85 and 05.02.86, under "Plea" it is recorded that the defendant was not present and under "Decision" it says
"No evidence offered - discharged. Prosecution and Defence costs certified from Central Funds"
8. It seems that happened on 12th August 1986, by which time the rapes in Counts 3, 7, 8, and 9, the lorry incident (see below, Counts 4, 5 and 6) and indeed all matters now complained of by her would have happened except possibly Counts 10 and 11. If she complained of all the matters, she was clearly not believed, and if she did not complain, her credibility could be affected.
9. All that is known apart from that document is a police microfiche record which, in relation to the charge of indecent assault states:
"Method used - picked up niece on pre-arranged meeting. Went for a drink. On return home, stopped car, committed sexual acts, although intercourse did not take place. Female aged 15 years. Date and time of offence July 1985. Location of offence: Bishopstowe, Eastleigh".
10. It would seem that neither the appellant nor either of the complainants had any reason to recall precisely what had happened in relation to the 1985/1986 charge until 1997, some eleven years later and itself some two years before trial. But it was C's recollection that she had complained of rape, and she had also told the police that D was complaining of rape too. The appellant's recollection was that he was questioned as to rape in relation to both complainants. It is clear that rape was never charged. Only the one act of indecent assault was charged. A potentially crucial plank in the appellant's defence would by any discrepancy between what she did allege 12 years or so later. We return to this later.
11. It is also not clear precisely why the case came to an end. In her 1998 witness statement C states:
"I had to go to court in Eastleigh. I had to go into the witness box. I had to put my hand on the Bible. I did this and read an oath. I could not go through with it and I blurted out, `It is all a pack of lies'. A man in front of the witness box said: `We have a letter to the same effect from your mother'. I could not believe that she could do that to me. She had not even bothered to go to the court with me. I knew that if I went ahead and gave evidence Michael would get me. I don't even think he was in court. I did not see him. As far as I know that was the end of the court case."
12. The judge's comment to the jury in his summing-up shows the difficulty in accepting that account:
"Whether her recollection can be right about that, we simply do not know, because by all accounts the defendant was not there. [That is confirmed by the court record already quoted]. He arrived late. It is unlikely as a matter of procedure, that a witness would have been called to give evidence in the absence of a defendant. But there it is. Plainly she withdrew her allegation and she was saying it was not true."
13. C's case was that by this time she had told the police everything, "... except perhaps for the lorry incident ... I couldn't handle [that]". The judge said this:
"The allegations of rape made by C, and the defendant accepts that they were made, since he was interviewed about them, were not pursued. The defendant was charged with a single offence of indecent assault upon C, though why the charge was reduced from rape to indecent assault, and whether other offences were disclosed by C in her statement, we do not know."
14. The destruction of all statements and other documents results in a very unsatisfactory state of affairs. At the time of her statement in 1998 C was alleging:
"Count 3: a rape in 1984 in the cramped confines of a two-seater sports car.
Count 4: (false imprisonment)
Count 5: rape
Count 6: buggery"
all constituting "the lorry incident", a high profile incident which we turn to next..
15. She said the lorry incident occurred before she had a pregnancy terminated at 17-19 weeks on 21st November 1985, ie earlier than that date. The allegation was that she was walking home alone at 9.00pm when the appellant, driving his employer's lorry, picked her up and offered her a lift home, but took her instead to the firm's depot in Bishop Waltham to a warehouse in which the lorries were parked. There they were locked in, and she was raped and buggered and tied up. He dropped her near her home the next morning. Her mother and two police officers were there, as she had been reported missing. She told her mother that she had been with the appellant, shut in his lorry, but her mother did not believe her. By trial her mother was unable to give evidence because of poor mental health, and it was too late to inspect the police attendance records and question the police officers. But the defence called the appellant's employer who gave evidence and produced documents to show that: 1) the appellant was not employed by them until June 1986; and 2) that his company had not moved to Bishop Waltham and that warehouse until January 1986, so the offence could not have been committed when she said it had been. It has not been suggested to us that he was lying or mistaken in that evidence.
16. Counts 7, 8 and 9 were three counts of rape at the complainant's home, representing what she put forward as ten incidents of routine rape, both before and after the lorry incident. Her case was that one of the rapes caused her pregnancy.
17. Count 10 was a rape at home while her mother was there. This caused her particular anxiety because she alleged her mother had a sexual relationship with the appellant.
18. Count 11, the last count, was that of a serious assault on her in a flat to which she had moved after a row with her mother, an occasion after she had withdrawn her allegations at the magistrates' court. A girl called Julia Thomas came in and so brought the attack to an end. It was too late to trace her. C's evidence was that she had told the police about all those matters, except perhaps the lorry incident which she said she could not handle.
19. It is difficult to reconcile C's evidence of what she complained of to the police in 1985-1986 with what we know. We know that the appellant was charged with one offence of indecent assault, and that that was withdrawn on 12th August 1986. This suggests either that she did not then complain to the police of any of those other matters, or she did and they did not believe her. The documents would have made this clear, and the police have destroyed those documents. That does not seem to us to result in a neutral "we must do our best with the remaining evidence" conclusion, but to raise the twin possibilities both of serious prejudice to the defence, and positive benefit to the prosecution. It was clearly important for the appellant to know what had been said to the police, what he had said, and, more importantly, what others - and in particular Complainant C, had said. For instance, it was his recollection that he was not asked about the lorry incident, and if the witness was complaining of rape, it would be remarkable to omit this incident. There was an evidential hole at the heart of the case which was caused by police action, and which could not be repaired by judicial case management. As Mr Grunwald QC for the appellant submitted, it gave C a free hand to say what she wished, confident that she could not be corrected by the 1985-1986 documents. Those documents would have been central to the case, and a trial without them could not be as fair as a trial with them.
20. We were assisted by the factually comparable case of R -v- Robert Nigel D (CACD 98/6262/W2 - referred to in Archbold News for January 2000) the Crown had written a letter stating:
"Police enquiries have not been completed and having regard to the circumstances and insufficient evidence, I have decided that no further Police action will be taken in this matter."
On the termination of proceedings, one would expect some letter to be sent. If such a letter was sent in the instant case, it did not survive.
21. In that case, this Court said:
"There are decisions where, despite destruction of evidential material, no abuse has occurred - see R -v- Beckford [1996] 1 Cr App R. There are other cases where a decision has gone in the other direction - see R -v- Gajree. Applying the principles and dicta we have identified, we are satisfied that in regard to counts 7 and 8 abuse has occurred. The letter of 21st May 1986 indicates a clear and final decision that `no further police action will be taken in the matter'. In the meantime, vital documents and other evidence were destroyed by the police in the course of their normal practice. This was not accidentally done, but clearly as a deliberate act resulting from the letter itself and the decision contained in it. The most important part of that evidence was the original complaint from KC and his witness statement. Any discrepancies between the original and what was prepared many years later for the purposes of trial would have been of material interest to the defence. The statements of the police officers and the civilian witnesses were also disposed of.
It is not necessary to consider in any detail the effects of the destruction of the premises or the judo mat. Those matters speak for themselves. Accordingly, we are satisfied that the police have misused their powers when they went back on their word and instituted proceedings. We do not consider the reason for doing so in the subsequent letter in June 1997 is an adequate explanation or justification for reinstituting the proceedings. It is conceded that none of these matters were the fault of the appellant. The prejudice is obvious and substantial. The appellant was clearly at a disadvantage in the preparation and conduct of his defence. This situation could not be remedied by any direction in the summing-up. Therefore we would allow the appeal on this ground of appeal as a result of which we would quash the convictions on counts 7 and 8."
22. Here we do not have any material as would justify a finding that the police went back on their word in instituting proceedings. But the prejudice here was obvious and substantial, for the reasons given.
23. Nothing was then heard as to any complaint against the appellant for eleven years. In 1997, the appellant was living with his partner, Lorraine P. With them was their daughter, Complainant E. The appellant's case is that he and his partner were experiencing difficulties in their relationship, and E, then 12, wanted him out of the house. She complained to the police that he had indecently assaulted E. He was arrested and charged with this offence on 26th March 1997. He was released on conditional bail, the conditions being not to contact Lorraine P nor E. They never lived together again. E's wishes had been achieved. It was alleged that he had returned in breach of condition on 30th March 1997 to shout "You are dead".
24. It is a common phenomenon in sexual crimes that when an offence is alleged against a new victim, previous victims come forward. Here it seems that the police contributed to that process. At some time after that in 1997, two police officers came to see Complainant C, and asked her if she would "... re-do [her] statement". In this family, she had heard of E's allegations, but had not apparently come forward herself. As I understand it, whatever statement was there referred to is now no longer in existence, and the 1985-86 statement (if different) would not have been in existence then. She agreed to give a statement, but indicated she was frightened of the appellant. She did not agree to make a statement until the appellant was arrested and in custody (31st May 1998). Her statement was finally dated 23rd June 1998.
25. Meanwhile, we know that E withdrew her complaints against the appellant on 3rd September 1997 - but we know not why.
26. The appellant was aware that around this period there were meetings between D and C and Lorraine P. The day after E withdrew her indecent assault allegations (on 4th September 1997) D made her statement. In that statement she dealt only with the first two counts alleging rape on her. In relation to 1985-86 she said:
"I spoke with C and she related to me what [the appellant] had done to her, and there were so many similarities."
27. She did not say why or how she came to make that statement then, at least 17 years after the events of which she was complaining. But she did, for no clear reason, confirm that Lorraine P was Michael's partner or wife, and E their daughter.
28. Before E withdrew her allegations of indecent assault on her by the appellant, he had been charged by Lorraine with threats to kill on two occasions in 1997. Lorraine P apparently made a statement to the police on 29th May 1998 alleging further threats to her and E. On 31st May 1998 the appellant was arrested "on suspicion of a number of rapes between 1974 and 1980". On 9th November Lorraine P wrote to the police withdrawing the allegation of threats to kill, saying:
"I do not want to pursue this matter, as I now realise that I over-reacted due to stress and depression I was suffering at that time, due to several personal problems. I do not believe that Michael Turner intended to kill or harm me, my daughter or anyone else."
29. The first question the jury would want to know is why D and C came forward then, but not earlier. The defence were effectively prevented from asking that question because the answer was that the appellant's own daughter had complained of indecent assault, and he had threatened to kill his wife. The fact that both had withdrawn those complaints would not prevent the devastating prejudicial effect of such answers. We are told that at the leave application Alliott J commented that it would be "suicidal" for the defence to open up this topic. We agree.
30. That dilemma could not be avoided by urging the jury not to speculate. The judge rightly gave that direction:
"You have no evidence from either complainant explaining the delay in making the complaints or why they have now come forward. There is no evidence about that. They could, either or both of them, have been asked for an explanation. They were not asked to offer such an explanation. You must not speculate about either matter. You do not know why they did not come forward during the intervening years, and you do not know what if anything prompted them to come forward now; and you could spend a long time in the jury room wondering. Do not. There is no evidence and it would be quite wrong for you to start guessing."
31. But speculation is difficult to avoid - see the summing up at 16C:
"The defendant's case on this issue is that [D] has made up these allegations of rape in order to explain what was being spoken of in the local public house where in effect the word on the street was that the defendant had had sex with her. You will have to consider that as a possible explanation since it is advanced for your consideration. But the occasion of sexual intercourse, on anybody's view, was 1980 or 1981. The first time these allegations seem to have surfaced was in 1985 or 1986, when [D] spoke to [C] about them, and [C] may or may not have mentioned them to the police. By that time, as far as I understand the evidence, [D] was married. Quite why she should choose now to make these allegations against her half-uncle, knowing them to be lies, when seventeen years have elapsed and the defendant is living in Liskeard, is not entirely clear. But I have put, as it were, one observation to you, let me put the obverse. If you cannot see any sensible motive for [D] to invent these accounts, you are entitled, as a matter of common sense, to take that into account in deciding whether or not you are sure that what she says is true. On the other hand, in matters concerning sexual affairs sometimes hidden motives exist which are not apparent. So have care before you draw any adverse conclusion - adverse to the defendant - if it be the case that you are unable to discern any sensible motive for [D] to make these things up."
32. So it can be seen that the dilemma is caused by the delay - delay which has already deprived the trial of the most reliable indication of the truth or falsity of what C (and very possibly D also) were saying in 1985 and 1986.
33. When refusing the application for a stay the judge drew comfort by reflecting:
"I remind myself that many of these matters, if not all of them, can properly be addressed in the trial process by control over the evidence and, in particular, by directions of law to the jury in due course."
But in our judgment, the police action in destroying the 1985 and 1986 papers could not be so dealt with.
34. In relation to Ground c), what might be called the normal incidents of delay, the defence identified approximately six witnesses who could have spoken to various incidents. The judge rightly summed up the absence of each, and the effect it might have. If it were not for the destruction of the documents and the dilemma of the subsequently withdrawn allegation, we would not have allowed the appeal on Ground c) alone. But taken cumulatively with Grounds a) and b), we, assisted by hindsight, do not think that a fair trial was either possible or had here, because the 1985 and 1986 documents lie at the heart of the questions of credibility on which this case turns. They are unavailable by reason of the routine but deliberate act of the police, and their absence leaves, in our judgment, an unacceptable question mark over the safety of these convictions. That was something that no direction of law or control over the evidence could rectify. Accordingly, we allow this appeal.
35. We do not know how widely this police force's practice of destroying documents after three years is. This is (after the case of Robert Nigel D referred to above) at least the second time when a sexual conviction has been set aside because of the routine destruction of documents. Given the propensity of sexual allegations to have a long gestation period, we would urge police forces to consider keeping documents relating to sexual offences and how they were dealt with for a considerably longer period.