England and Wales Court of Appeal (Criminal Division) Decisions

R. v. HASSANA FRANCIS [2000] EWCA Crim 58 (8th November, 2000)

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 8th November 2000

B e f o r e :

THE RT. HON. LORD JUSTICE KAY
THE HON. MR JUSTICE SILBER
and
HIS HONOUR JUDGE MELLOR

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Miss Emma Lowry( Miss J Leonard) for the Crown
Miss Freya Rowe for the Appellant

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Judgment
As Approved by the Court

Crown Copyright ©

LORD JUSTICE KAY:

1. On 6 April 2000 in the Crown Court at Southwark before His Honour Judge Fingret, the appellant was convicted of an indecent assault on a male by a majority of 10 to 2. She was subsequently sentenced to 15 months imprisonment. She now appeals against her conviction by leave of the single judge.
2. The prosecution case was a simple one. The alleged victim was a 16-year-old boy, who was a long-term patient at the Royal London Hospital because he suffered from cerebral palsy and had a blood disorder called Von Willebrand’s disease. At the time of the alleged offence, he was in a spinal torso caste following a spinal operation.
3. The appellant was a domestic employee in the hospital, whose duties included such tasks as taking water to the patients. At the relevant time on 23 May 1999, she was the only such person on the boy’s ward.
4. The boy (to whom we shall refer as A) in evidence said that she used to ask him how he was doing and to have a laugh with him. He said that there had come a time when she referred to her sister being a nurse and made reference to washing him. She had said that she bet she saw “what is going on down there”. He had told her that he washed himself but she had continued to make such remarks. One weekend she had come in with his water and had spilled his coffee. He had asked her to clean it up. He had then called her back to fill up his glass with water. She had again spoken of washing “down below”. She had held his hands and distracted him. He described what happened after that as “She got down there and started doing stuff pulling the skin back and stuff several times”. She had used both hands on his penis and had continued until as he put it “something had come out of his penis”. He had tried to push her off but she was the stronger of the two. He had twice told her to stop but she just continued and he just froze until she had finished. When she had finished she was laughing and she had said “Oh, what’s up, why aren’t you my friend any more”. He then told her to go away. The next person who had come to him was a nurse with his medicine but he had not wanted to tell her because she was busy but he had later phoned his mother and told her. He had also spoken to an auxiliary nurse soon after.
5. The defence was that nothing of the kind had happened although the appellant agreed that she had gone to the appellant to clear up some spilled coffee on the day in question. The appellant was not able to suggest why the boy had made the false allegations against her but either he was lying or he had imagined the whole episode as a result of his condition or his medication.
6. When the matter came before the single judge, the grounds were a long rambling document that totally failed to understand the purpose of grounds of appeal. The grounds should state shortly and succinctly the issues that the appellant wishes to raise. They should contain no more particularity than is necessary to explain the points that counsel wishes the court to consider. They should not contain detailed evidence or argument. If counsel wishes such matters to be considered by the court they should be included in a separate advice that will be placed before the judge. If this guidance is not followed, the single judge is left to delve through the mass of information placed before the court to try and ascertain the issues to be considered. That is what happened in this case because counsel for the appellant had never focused her mind on the precise nature of the grounds that she wished to raise.
7. The matter came before Bell J., who found it necessary to try to distil the grounds from all that had been placed before him. He identified four areas of complaint that in his judgment merited consideration by the full court and granted leave. He then produced a note of the orders and directions that he had given at an oral hearing. It is convenient to set out the relevant part of that note and then to explain the nature of the points:

“2. I grant leave to appeal against conviction on the following grounds only, which I have rephrased from your long Grounds and even longer Advice.
(a) Ruling of Judge Fingret on inadmissibility of psychiatric evidence of Dr Steadman. I find it difficult to fault Judge Fingret’s ruling, although he went on to speak of psychiatric problems at page 40 C-E of the Summing Up. I have really granted leave because of what you told me about Judge Bathurst-Norman’s ruling (on 10 January 2000) that psychiatric evidence was admissible, and your point on sections 39 and 40 of the Criminal Procedure and Investigation Act, 1996 (Archbold 4-840 at page 330), although the Full Court may feel that Judge Fingret implicitly dealt with this.
(b) Alleged misinterpretation of expert evidence. I have relied on your account of the evidence of the medical experts. Transcripts may help ...
(c) Alleged failure of the judge to give a warning in respect of A’s evidence generally and in respect of inconsistencies in particular. At the end of his ruling on the psychiatric evidence the judge referred to the need for appropriate warnings. I have relied on your account of inconsistencies in A’s evidence. Again, transcripts may help ...
(d) Allegedly unfair prosecution speech. My leave on this aspect is based upon the alleged reference to Myra Hindley. See Archbold para 4-272 at page 409. You should try to agree a note of all that prosecuting counsel said, of which you complain, with her.
“3. I refuse leave to appeal on all the other aspects which you criticise in your Grounds and Advice."

1. Counsel has applied to raise by way of renewal additional grounds that expand the ambit of that upon which the judge granted leave in respect of (a) and (d) and to raise a fresh ground which she suggests arises following the coming into force of the Human Rights Act 1998 in respect of the exclusion of the evidence referred to in (a) of the notes of Bell J. We will deal with those matters when we come to the allied points upon which leave was granted.

1. We are satisfied that the judge’s ruling in this case on relevance and admissibility was fair, independent and impartial. (See Edwards v U.K. 15 EHRR 417, paras 52 at p. 427 and 34 at page 431.) There was nothing in the ruling, which applied equally to prosecution and defence witnesses alike, that rendered the proceedings unfair.
2. Miss Rowe’s second challenge in this regard is equally ill founded. There is no inequality of arms where neither the Prosecution nor the Defence are required to give notice that objection will be taken to the admissibility of parts of the evidence until immediately before that evidence is about to be given. Counsel cannot assume that there will be no such challenge where the admissibility of evidence is clearly questionable as it was in this case. Nothing said either by Miss Lowry or by Judge Bathurst-Norman when they were first confronted by the report and with no opportunity to consider any other evidence can sensibly be suggested in some way to bind the Crown at a later stage.

Alleged Misinterpretation of Expert Evidence in the Summing Up

1. The second ground upon which leave to appeal was granted relates to what is said to be misinterpretation of the expert evidence by the judge in the summing-up. Miss Rowe also has argued as one of her additional grounds that the judge “misinterpreted” the onus of proof in regard to expert evidence.
2. We have had the advantage that the single judge did not have of seeing transcripts of the medical evidence. Miss Rowe has taken us through a number of points that she argues justify this criticism of the summing-up. Having considered these and having read the transcripts and the summing-up, we do not consider that the criticism is justified. If a judge is not to simply read out his notes verbatim, he will necessarily be selective. This will not cause difficulties particularly where the judge instructs the jury as he did in this case that it is their view of what is important in the evidence that counts and not his. In this case we are satisfied that the judge gave the jury a balanced and fair summary of the evidence that they had heard and that none of the points raised by Miss Rowe either taken individually or viewed collectively can be said to render the resulting conviction unsafe.
3. The further submission is made under this head that, despite the judge having given proper directions on the burden of proof, his subsequent handling of the medical evidence may have suggested to the jury that it was for the defence to prove that A was either affected by drugs or in some other way likely to be giving a false account.
4. The complaint really centres around what the judge had to say about speculation. Having referred to the possibility of hallucinations as a result of the consumption of drugs, he said to the jury:

"Would it be speculation, guess work, to jump from that expert and say oh that might have happened in this case, or would it be an inescapable conclusion that it might have happened."

1. If that remark had stood alone, we might have accepted that there was merit in that criticism. However, the remark has to be taken in the context of the whole of the summing-up. It was followed immediately by:

" That is how you look at all of the evidence and sift it and decide which is speculative and upon which evidence you can draw common sense conclusions."

1. Thereafter after reinforcing what he had already said to the jury about the facts being entirely their province, he gave his direction on the burden and standard of proof. It was a full and comprehensive direction about which no criticism has or could be made. The judge concluded this aspect of his summing-up by telling the jury that the burden on the prosecution to make them sure was “the thread that goes right through this case” when they considered the evidence.
2. The judge then went on to define the offence of indecent assault and added:

" The dispute is did it happen? That is the allegation and it is that that the Prosecution seek to prove "

1. These comprehensive directions coming so soon after the reference to speculation can have left the jury in no doubt what the position was. Equally we have looked at the whole of the summing-up and we can see no possibility that any jury could have been under the wrong impression that the defence shouldered some burden on this issue, which was after all the crucial issue for them to resolve.

Failure to give a warning in respect of A’s evidence

1. The next submission made by Miss Rowe is that the judge should have warned the jury about the dangers of relying on A’s evidence in his summing-up. Miss Rowe points to the fact that, in excluding the evidence of Dr Stedman, the judge had indicated that he would give the jury “appropriate warnings” about reliance on the evidence of A.
2. The first complaint is that in the light of the inconsistencies in A’s evidence and earlier accounts there was a need to warn the jury about the dangers inherent in relying on his evidence.
3. Miss Rowe has taken us through the various inconsistencies upon which she had relied in her closing speech. We are bound to say that if we were on the jury we would have been unlikely to view them as very significant in the context of this case but that only underlines the fundamental feature of this case that it was for the jury and no-one else to conclude whether the alleged inconsistencies shook the jury’s faith in what A had said in evidence so that they felt unable to rely on his evidence. We do not consider that the judge was required to give any special direction in this regard.
4. The judge did remind the jury of the defence submission that the inconsistencies outlined in counsel’s speech prevented reliance upon the evidence. He did so in the context of the evidence about complaints made by A soon after the offence was alleged to have been committed. He explained to the jury the limited evidential value of such complaints. He told the jury that they could say that bearing in mind the evidence of these complaints, they could conclude that they were satisfied as to A’s credibility or that they might say that the accounts given were so inaccurate that they could not believe a word that he said. It is suggested that this left the jury with only the stark alternatives of acceptance or disbelief. However, the judge made it clear that these were the extreme positions and that he had referred to them only to illustrate the limited value of evidence of complaints.
5. The judge then went on to deal with previous inconsistent statements and said that if there were inconsistencies, one possible outcome might be that they thought that they were significant “and to some extent we are not sure of our view” about the witness’ evidence on the particular topic to which the evidence related. Alternatively, they might go to the extreme of saying that the evidence was so different that “any credibility of the witness vanishes”. Miss Rowe seems to suggest that the jury would understand this passage to relate to other witnesses but not to A, we cannot see any justification for that suggestion. The judge referred to witnesses and to no specific class of witnesses. The jury can hardly have failed to realise that A, although he was the alleged victim, was a witness and a very significant one, whose evidence required the same consideration as every other witness.
6. We are in no doubt that the complaints in this regard are unjustified and that the totality of the summing-up was entirely appropriate in this regard.
7. The next complaint under this head is that the judge failed to warn the jury that leading questions put by a person to a boy by the person to whom he spoke, particularly in this case his mother, might have suggested that events occurred which had not actually happened. Miss Rowe had made the point to the jury. Reference to her submission of the relevance of “suggestions” was made in the course of the summing-up. We can find nothing in this case that required the judge to go further and give some special warning of the sort suggested.

Allegedly unfair prosecution speech

1. The final ground upon which leave was granted was a suggestion that prosecuting counsel’s closing speech was unfair. Bell J. granted leave, as he made clear, because prosecuting counsel had made references to Myra Hindley. He made reference to paragraph 4-272 of the 2000 Edition of Archbold, the relevant part of which reads:

" It is counsel's duty to outline the facts upon which the Crown intends to rely. It is highly undesirable for prosecuting counsel in so doing to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury."

1. Bell J. required counsel to try to agree a note of what prosecuting counsel said. As it happens, they have been able to do better than that because Miss Lowry is one of those advocates who writes out for herself what she intends to say and she was able to produce those notes. There is no suggestion that they do not reflect what she actually did say.
2. Miss Lowry did make reference to notorious women who have been convicted of involvement in offences against children but she did not do so gratuitously. She was making the point that whilst sexual offences committed by women on children were not common but that everyone was aware that they did unfortunately happen from time to time as was clear from the more notorious cases of which everyone was likely to be aware, Myra Hindley and Rosemary West. She then said in terms:

" It is certainly not suggested that this offence is on the same level as either of those – but the principle is the same."

1. We are far from persuaded that it was necessary to explain to a jury that women do commit offences against children. Inevitably that would be within their knowledge. We equally think it would have been better if counsel had not introduced reference to highly emotive cases. However, her own immediate assertion that this was not a case on par with those cases would have prevented the jury from being unfairly turned against the appellant.
2. We have little doubt that if the judge had been aware of any apparent reaction from the jury, or that if he had felt there was any danger inherent in the remark taken in context, he would have intervened. The fact that he did not reassures us that our assessment of the position is a proper one.
3. We reject, therefore, the complaint made against prosecuting counsel and this ground of appeal.
4. Miss Rowe sought leave to pursue other complaints about prosecuting counsel’s final speech. They did not persuade Bell J., who limited leave on this matter to the complaint with which we have already dealt. We heard the arguments of Miss Rowe and have read her skeleton argument but we are no more persuaded than Bell J. that there is any merit in them. We think it unnecessary in the circumstances to recite the complaints any further. Having read counsel’s speech in its entirety, we do not think that it was unfair in any sense.
5. For these reasons we have come to the conclusion that this conviction cannot be regarded as unsafe and we refuse this appeal against conviction.