England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday 30th November 2001

Tuesday 31st July 2001

1. LORD JUSTICE LATHAM: On 18th June 1993, in the Crown Court at Mold, following a five-day trial, the appellant was convicted of five offences. In respect of one of those offences, an offence of assault occasioning actual bodily harm, he had pleaded guilty and in respect of that he was sentenced to twelve months' imprisonment. There other four counts alleged sexual offences against his stepdaughter. On the first of those counts, which was a count of indecent assault, he was convicted and he was sentenced to twelve months' imprisonment; on the second count of rape, he was convicted and sentenced to six years' imprisonment; on the third count, also of indecent assault, he was sentenced to two years' imprisonment; and on the fourth count, he was convicted of attempted rape and was also sentenced to four years' imprisonment. All those sentences were to be served concurrently.
2. His first attempt to appeal against conviction resulted in his application for leave being refused in July 1994. The matter comes back before this Court following a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995 on the basis that there is a possibility that the convictions will not be upheld by this Court by reason of further evidence which the Commission considered that this Court might be prepared to hear and might be sufficient to justify the conclusion that the convictions were unsafe.
3. The background was this. In the early 1990s the appellant lived with his wife Mrs P and her two daughters, K and A, in Flint in North Wales. K was born on 26th September 1996 and A was born on 30th October 1997. Mrs P had a third daughter had been born on 12th May 1990. That was the child of the appellant and Mrs P and she also lived in the family home. The allegations of sexual impropriety were said to have taken place between September 1989 and May 1992 and involved K when she was between the ages of 13 and 15.
4. The relationship between the appellant and both his stepdaughters was problematic. There was considerable difficulty created by the fact that the appellant considered that K behaved inappropriately with boyfriends and indeed, he was to say in his evidence, towards himself. As far as K was concerned, she said that she had problems with her stepfather because of the way he behaved towards her and in particular the fact that he would become jealous whenever it appeared as though she had a boyfriend and that was because of his inappropriate attraction to her.
5. The story which K was to tell of the appellant's behaviour towards her emerged after 25th May 1992. The whole family had gone on that occasion to a fun day in Flint, where K and A took place in a Morris Dancing competition. The two ladies who trained the Morris Dancing group were a Mrs D and a Mrs G. At the end of the dancing, K went to talk to some boys that she knew, and for whatever reason this caused the appellant to become angry. He called her a "whore" and a "slut". When they got back home the appellant assaulted K, hitting her repeatedly about the head and kicking her in the ribs. That incident was the subject matter of the count of assault occasioning actual bodily harm to which the appellant pleaded guilty at his trial. K fled to a neighbour's house and the police were called.
6. As a result, both K and A were taken away from the family home. K went to live with Mrs G, to whom we have already referred, and A to Mrs D, again to whom we have already referred.
7. K was interviewed in relation to the incident on 25th May. In the course of her interview she made allegations of indecency by her stepfather over the previous three years. She made two further statements in which that account was further expanded.
8. On 27th May, A gave a statement to the police in which she gave her account of matters in some detail, including evidence which was capable of amounting to corroboration of K's account, in that she talked about her stepfather touching K in inappropriate places and also talked of an incident which tied in with the account given to the police by K. She also made subsequent statements; but it was essentially the account she gave in that first statement which formed the basis of the evidence which she was subsequently to give at the trial.
9. In March 1993, shortly before the trial was due to take place, A, K, Mrs D and Mrs G were at the Crown Court being shown the court and the witness room which A would be using to give her evidence from the video link when K indicated that she wished to add to what she had said before, an allegation of rape. That formed the subject matter of the third statement that she made. Accordingly, the trial did not take place in March, but was adjourned until, as we have said, June 1993.
10. At that trial the evidence given by K was to the effect that, from about the age of 12, she had problems with the appellant. When she reached the age of 13 to 14, he started to comment on her breasts and would occasionally grab her breasts and her buttocks.
11. The first count of indecent assault was based upon an incident she described when she was about 13 years old, when she and the appellant had what she described as a 'toy fight' whilst her mother was out and her sister was upstairs. The appellant pinned her down and touched her breasts, initially over her clothes but then put his hand under her top and placed them on her bra. She told him to get off, and he did not. Her sister came downstairs and told him to get off. K commented she thought it was her fault for being involved in the fight. She told her mother, but her mother did not believe her and said that the appellant was probably only "messing around". She also described occasions when the appellant would help her in the bath, trying to wash her breasts. That was general behaviour over a period of time.
12. The next specific incident formed the subject matter of counts 2 and 3. This occurred on an occasion when K was ill with flu and bronchitis. The appellant carried her upstairs, undressed her and put her to bed, put his fingers into her vagina and licked her vagina. Those were the matters which were the subject of the indecent assault count. He refused to stop, and then eventually had full intercourse with her. She told the court that that was the first time that she had had intercourse and that it hurt. She screamed. Her mother came up, but by the time she came into the room the appellant was standing up and there was nothing to indicate that anything untoward had taken place. She did not tell her mother because she did not think that her mother would believe her.
13. The final incident which was the subject matter of a count in the indictment was an incident which K did not mention in her evidence in chief, but in re-examination she said that on one occasion she went to bed early when her sister and her mother were out and the appellant came upstairs, pushed her down on the bed, pulled her underwear off and removed his own. He was erect, but she managed to get him off by struggling, kicking and shouting.
14. That account was corroborated or capable of being corroborated only by the evidence of A, that is the sister. She described how, on occasions, the appellant was violent. She remembered the appellant commenting on how large K's breasts were and would compare them unfavourably with hers. He used to behave differently towards K, according to her. The two of them would often be play fighting and he would often touch her. She described it as "tickling" her sister's breasts and vagina over her clothing. She told her mother, but her mother did not believe her. She said that, on occasions, K had complained to her that the appellant had touched her 'privates' and her breasts.
15. The particular incident which was capable of amounting to specific corroboration was when she had been sent upstairs by the appellant when the mother was out, leaving the appellant downstairs with K. This, it would appear from her evidence, was a not infrequent occurrence. On this particular occasion she could hear K laughing downstairs, but then there was a scream. She went downstairs and saw the appellant pinning K down. She called him a "dirty pervert" and told him to get off. The appellant told her to go upstairs. That, the judge in his summing-up indicated, was capable of corroborating the first count of indecent assault, although it is right to say that at no stage did A suggest that she saw the appellant's hands under the clothing of K.
16. Two other material pieces of evidence that she gave were that, firstly, she saw the appellant pinching K's bottom as she was going upstairs on an occasion when her grandmother was present; and she remembered him going upstairs when K was in the bath and remaining upstairs for a significant period of time.
17. The other supporting evidence called by the prosecution consisted of the grandmother, who herself gave evidence of seeing the appellant pinching K's bottom. She remonstrated with him, saying that it was a wholly inappropriate thing to do, and he said he was only joking. She said that she had heard that the appellant bathed the complainant. Again she told him that she did not approve. He did not deny it. It was clear from her evidence that she did not like the appellant.
18. There was no other significant supporting evidence.
19. The evidence given by the appellant himself was to the effect that, although he accepted that, as between him and K, there had been occasions of play fighting, he denied that that had resulted in any indecent assault or inappropriate touching. He denied bathing the complainant. He had never pinched her bottom, and there had been no occasion upon which he had indecently assaulted her, as she described, in her bedroom; and in particular he denied either raping or attempting to rape her. On the contrary, his account was that she behaved inappropriately towards him. On a number of occasions she was provocative and on occasions grabbed his testicles. On one occasion she said to him in front of her mother "It's all right dad, we can go to bed now".
20. Mrs P also confirmed that there had been play fighting between K and the appellant, but she was adamant that there was nothing in the behaviour of the appellant towards K which was in any sense indecent. She denied that she had ever been out of the house so as to give opportunities for the appellant to be alone with K, except that she was prepared to admit to one occasion when she had gone next door, but she said the walls were so thin she would have heard if anything untoward had taken place. She also confirmed that K had behaved and spoken inappropriately to the appellant on occasions.
21. That was the evidence before the jury upon which it convicted the appellant. As we have indicated, the judge directed the jury that A's evidence was capable of amounting to corroboration.
22. After leave to appeal was refused by this Court, a persistent campaign was waged by Mrs P on her husband's behalf in order to try to persuade the Home Office to refer the matter back to this Court. The basis upon which she did so was essentially that, as far as she was concerned, the account given by K was wholly untrue. She managed to obtain a number of statements which, for example, went to the extent of suggesting that there had been no rape by the appellant but there had been a rape by a soldier, which was put before the Home Office in some way as supporting the assertion that K may have been lying.
23. After the incident of 25th May, it should be remembered, as we have said, that K and A were taken away from the family home. Indeed, they remained away from the family home. As far as we are aware, K never returned to the family home. A only returned in January 1997. It is out of what happened after she returned in 1997 that the matter comes back before this Court.
24. There are two grounds upon which the reference has been made. The first is that A has now apparently retracted her evidence that any indecency was witnessed by her between the appellant and K. Secondly, there is material from a Kenneth W, who was a young neighbour, to the effect that he had in fact had sexual intercourse with K on an occasion which must have been before the occasion when she said she was raped, thereby casting doubt on her assertion in evidence that she had not had intercourse before the rape; secondly, his account is that K had in fact accused him in relation to that intercourse of having raped her, accordingly supporting an assertion that K was capable of deception in relation to sexual matters and in particular prepared to allege that rape had taken place when it had not.
25. As far as those two matters upon which the reference is based are concerned, it may be sensible to start with considering the second. The question as to whether or not there had been intercourse between K and anybody other than the appellant had in fact been raised in a number of different ways, both before and after the trial; in particular there were allegations that K had become pregnant and had miscarried to the knowledge of the mother before the incident of rape. In relation to this particular matter concerning Kenneth W, that was first raised in an interview with A, before the Criminal Cases Review Commission who said that on an occasion K had told her that she had been raped by Kenneth W. She told her parents, according to her; and there was then a row between her mother and the appellant and Kenneth W's parents. She did not know the outcome of that row. As a result, the appellant and Mrs P were interviewed by the Commission. They said that they could only remember an occasion upon which a 'love bite' had been found on K's breast. It became apparent to them that that must have been because of behaviour between Kenneth W and K. They went round to Kenneth W's parents, and there was a confrontation. But there was nothing in the interviews that they had in relation to the incident which suggested that there had been any allegation of rape. However, when Kenneth W himself was interviewed, he said that he had had sexual intercourse with K at her instigation and that he had then been accused by her of rape. The result of that was that the appellant and Mrs P came round to his parents and threatened to report the matter to the police; but eventually the issue was defused without the need for that to occur.
26. It can be seen that the nature of the evidence which was obtained by the Commission was confused and contradictory. But, most important, if there was anything in this incident at all, it was, on any account of the matter, well known to the appellant and Mrs P at the time of the original trial. No reason whatsoever has been given to us as to why it was not used at the trial. In those circumstances, bearing in mind, as we have said, the contradictory and confused nature of the evidence and its peripheral, in our view, relevance, we concluded that we would not admit that evidence under section 23 of the Criminal Appeal Act.
27. The first and more substantial matter identified by the Commission relates to A's retraction of her evidence of indecency at the trial. That was obviously a matter of significance. We entirely accept the submission of Mr Jebb that, bearing in mind the fact that the only corroboration identifiable was the evidence of A, if there were any doubt about the credibility of her evidence at the trial, then that could have had a significant effect on the jury so as to be capable of forming the basis for an argument that the conviction was unsafe. We accordingly considered that we should hear evidence from A, and in the event her mother, Mrs P, and the appellant's half-sister, to determine the extent to which her retraction of her evidence is in fact credible.
28. She has, as a matter of fact, retracted the evidence, in the sense that in a letter in January 1997 she set out in detail to the Home Office her denial of there having been any indecent behaviour between the appellant and K. The reason she gave and has consistently given for not telling what she now says is the truth is because she was frightened of K and of Mrs D and to some extent Mrs G. She maintained in that statement, and maintains before us, that the accounts in relation to indecency are either not true or simply exaggerated.
29. It became immediately clear to us, not only from material which this Court had been provided with as to her emotional and psychiatric state but also from the way in which she gave evidence, that A is under acute emotional strain. As we have said, after May 1992 she was with foster parents. There is little doubt that throughout most of that period she has been emotionally troubled. She clearly loved her mother. She told us that she wanted to be with her, but, unhappily, the relationship between her and her mother was difficult. It became the more difficult after the appellant had been charged with the offences of indecency because her mother sided with the appellant, whereas she, for whatever reason, had sided with K. That was the position until June 1995, in the sense that there was no indication that A was in any way expressing any wish to retract what she had said at trial.
30. However, in June 1995, the Home Office received a letter purportedly from a "Samantha B", which set out what was said to have occurred at a meeting at Samantha B's house between A, Samantha B and Mrs P. Although in the letter there was no indication that A had expressly retracted her account at the trial, what was said in the letter was to the effect that A was indicating that she would if she was not frightened of Mrs D and K. That formed the basis of a further attempt by Mrs P to persuade the Home Office to refer the matter to this Court. Ultimately the Home Office considered it appropriate to ask the police to interview A.
31. She was interviewed in January 1996. By that time she was 18 years of age. She was working and it would appear that she had a steady boyfriend. The statement that she made as a result of the interview with the police was to the effect that what she had said at the trial was true and she stood by it; and such other information as there is in relation to her position at that time indicates that she was indeed maintaining that she had told the truth at the trial. It is interesting to note that, whatever may have been said in the letter from Samantha B, Mrs P's evidence to us was to the effect that, even in June 1995 at the meeting she appeared to be maintaining the truth of what she had said at the trial. It was only when the Home Office received the letter of January 1997 that there was any indication that she was retracting that evidence. That letter was received virtually contemporaneously with a letter from Mrs P again seeking to raise the question of a reference to this Court.
32. The matter was referred to the Commission. It was as a result of the interviews which the Commission thereafter held with A over a period that the matter comes before us. In those interviews and in further statements she consistently maintained, as she had said in January 1997, that her account to the court and the account that she had given in the first statement were either untrue or exaggerated.
33. In evidence before us, as we have already indicated, she was clearly distressed. She maintained her account that what she had said about the behaviour between the appellant and K was either untrue or was exaggerated. For example, in relation to the incident when she had been upstairs and come down, she had heard the appellant and K laughing downstairs. She had not heard a scream, as she had originally said. When she came into the living room the appellant was not on top of K; the two of them were sitting on the floor apart. She said that the description she gave of the appellant being on top of K was in fact a description of what had occurred to her when she was subject to an indecent assault by a young man at some time earlier. It was she who had said to her assailant "you dirty pervert"; and there was no question of her having said that to the appellant on that occasion. She told us that she never saw the appellant tickling or touching K in inappropriate places. There was no occasion when the appellant went upstairs when K was in the bath and remained upstairs for any length of time. She said that there was no incident that she saw when the appellant pinched K's bottom. It is noteworthy that the evidence that she gave us was clear as to those denials, but was consistently vague in relation to other matters.
34. She said that the reason that she had given the statement in the first place and the evidence at trial was because she had been threatened by K, Mrs D and Mrs G. They had said to her if she did not say what was in her statement he (the appellant) would get away with it and "we would all be in prison". Between the time that she made her statement and the time of trial she was bullied by K, who hit her on a number of occasions when she thought that A was not going to tell the story which they had agreed.
35. She confirmed that there was an occasion when she saw Samantha B and her mother in or about June 1995 and may well have given the impression that she might be prepared to change her account but was frightened of K and Mrs D, because, she told us, that was the position.
36. She said that, as far as the interview with the police in 1996 was concerned, she had again been too frightened of K and Mrs D to change her account, and also that the police officer had indicated to her that she may be in trouble if she had not told the truth at the trial. She told us that it was only when she went to live with her mother in January 1997 that she was prepared to tell, as she now says, the truth being no longer frightened of K or Mrs D.
37. She denied that it was her mother's idea to write the letter. It was, she said, her own; and even though it contained material which was remarkably similar to material which had been put before the Home Office by her mother, she denied that she had in any way been prompted by her mother in regard to that account.
38. Mrs P told us that when A came to her in January 1997 she said, "I want to come clean". It was pure coincidence that she, Mrs P, had written a letter to the Home Office the same day that A had. There was no question of her having in any way persuaded A to write her letter of retraction.
39. Mrs B, the appellant's half-sister, told us of an occasion before the trial when A came to her house together with Mrs P and the appellant, but then the appellant left. At that point A, in front of both her mother and Mrs B's two children, said that she wanted to go home to her mother. She showed bruising on her arm and complained that was the result of her being bullied. She said she had to lie or K would kill her.
40. We have come to the clear and firm conclusion that the evidence given to us by A yesterday is simply not credible. It is perhaps not surprising given the emotional turmoil in which she must have lived over the last few years.
41. The statement on which her evidence at trial was based was made only two days after the May incident and after she had been taken away from home. It is full and detailed. It is difficult to believe that the account given in that statement was a concoction by K and A in that short time, bearing in mind the extent to which it was maintained by her in subsequent statements and in evidence at trial. It is to be noted in any event that it is not wholly consistent with K's evidence. It is consistent within itself, but it is not apparently an attempt to support K in the detail that she gave. Further, the evidence given to us of the retractions which she has made have all the hallmarks of an account which was created and not remembered. She repeatedly said that she could not remember in relation to matters other than the specific parts of the evidence that she wished to retract. However, we acknowledge that these are matters of impression, which would not necessarily of themselves be sufficient to prevent us from concluding that her evidence was capable of belief, which is the question which we have to ask. But what makes it clear to us that it is incapable of belief is the history which we have related but which needs to be slightly fleshed out in order for our reasons to be understood.
42. Whatever may be the truth about the Samantha B episode, it is clear that A was essentially maintaining her story up until June 1996, when she made a clear and unequivocal statement to the police to the effect that her account at the trial was true. Her evidence as to why that particular account was being maintained by her at that time, namely that she was being bullied by K and/or by Mrs D, really cannot stand next to the events which occurred after June 1996. We have already indicated that she was by then working and in a stable relationship, with a young man whom she subsequently described as a 'confidante'. She went, very shortly after seeing the police, to live with K, the person she said was bullying her to the extent of her being frightened. Sadly, the relationship between herself and her boyfriend appears not to have been able to withstand the strains at the time; and she was clearly deeply unhappy by November 1996, to the extent that she attempted to commit suicide by swallowing aspirins. She told us that the unhappiness at that time was because of the stresses that she was under by reason of the fact that she was maintaining that untrue account in relation to her stepfather's behaviour towards K.
43. She was taken after the overdose to hospital. In hospital she saw a psychiatrist. When she was seen by the psychiatrist, she told us that she told him what was worrying her. The notes of the psychiatrist have been deciphered; and they start as follows:

"Engaged two years. Abused along with sister by stepfather aged 14. Stepfather in prison this Christmas. Worried about seeing him again."

44. Thereafter she goes on to deal with the problem with her boyfriend, her engagement having been broken off, difficulties with her foster parents, and the fact that she wanted to get her boyfriend back. Then, at the end, the psychiatrist's conclusion was that she was suffering from an acute stress reaction plus emotional issues around sexual abuse.
45. It would appear from a fair reading of the matter that it is unlikely that A was talking about sexual abuse in relation to herself in that particular complaint to the psychiatrist; it is more physical abuse by the appellant. But the one thing that is entirely absent from that account is anything to suggest that she was suffering from stress or distress because she had wrongly accused her stepfather of indecency. It seems to us that if one puts that history, together with the fact that it is only when, after she has been taken from hospital by her real father, stayed with him for a short time and then taken by her real father to Mrs P, that we find that there is a change in her account as to what happened between the appellant and K. The only conclusion that we can reach is that she was prepared at that stage, in order to please, not surprisingly, her mother, whom she loved, whom she had had difficulties with and with whom she wanted to live, to support her mother in her support of the appellant. In those circumstances, we have concluded that the account given by her of her retraction and her reasons for retraction cast no doubt on the evidence that she gave at trial.
46. Mrs P herself in no way provided evidence which supported the retraction. She simply told us of the fact of the retraction.
47. The evidence of Mrs B is in a different category. That is an account of an apparent retraction before trial before Mrs P, who told us nothing about it, and two children of Mrs B. Accepting that those children would have given the same account as Mrs B, the one thing that is clear is that that material was available for the appellant at trial. Indeed, Mrs B accepted that she would have told the solicitor about it because of its significance. She was surprised, she told us, to discover that there is no mention of it in any of the solicitor's papers.
48. We are accordingly of the view that if that incident had indeed occurred before trial, the solicitor would have been told and it would have formed an important plank of the appellant's case. The only conclusion that we can reach, accordingly, is that Mrs B has persuaded herself, and perhaps those in her family, that this retraction did occur when in truth it cannot have occurred for the reasons that we have given.
49. For all those reasons, we conclude that nothing that we have heard or read casts any doubt on the safety of the appellant's conviction. Accordingly, this appeal is dismissed, as we indicated yesterday.
50. Are there any consequential matters?

MR SPENCER: There is just one matter in relation to the reporting of proceedings in this court.

LORD JUSTICE LATHAM: Yes.

MR SPENCER: I know that there has been some interest in front in the reporting of the case today. It seems to me that the order made automatically at trial under the statute, this being a rape case, applies throughout the lifetime of the victim K. So it would seem that, unless there is a contrary direction from your Lordships, it will remain unreportable, as was before.

LORD JUSTICE LATHAM: Yes.

MR JEBB: I agree with it, my Lord.

LORD JUSTICE LATHAM: I think it must follow. Accordingly, the order will remain in relation to the naming of the victim, as must follow from the allegation being one of rape.

MR SPENCER: Yes. I cannot remember whether there was an order in relation to A; she would then have been under 17.

LORD JUSTICE LATHAM: The trouble is that she is no longer under 17, so the same considerations do not apply in relation to her.

MR SPENCER: I suppose that any reporting by linking --

LORD JUSTICE LATHAM: That is the problem. The practical problem for the press is it is very difficult to report using any names at all without immediately identifying K --

MR SPENCER: Yes.

LORD JUSTICE LATHAM: -- who is entitled to her anonymity, with all the problems that that presents for the press, rightly or wrongly.

MR SPENCER: Yes. Thank you, my Lord.