England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1880
		Cases No: 2000/7118/Z5 & 2001/0751/Z5

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 July 2002

B e f o r e :

LORD JUSTICE BUXTON
MR JUSTICE CRANE
and
MR JUSTICE HENRIQUES
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	H and G	Appellants
	- and -
	The Crown	Respondent

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(Transcript of the Handed Down Judgment of
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Mr Roger Thomas QC for H; Mr Malcolm Swift QC and Mr Bryan Cox for G
Mr Simon Bourne-Arton QC and Miss Caroline Wigin for the Crown
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Lord Justice Buxton :

Introduction

1. H and G were separately convicted in separate trials, but their appeals have been heard together because they share an important common factor. In each case the complainant was JH, who was 21 when she gave evidence, but who complained of serious sexual abuse by H, her father, and by G, her music teacher, when she had been a child. The strikingly unusual aspect of the cases was that there was no suggestion that there had been any collusion between H and G, nor any knowledge on the part of either of the other’s practices.
2. H was indicted on four counts of rape and two counts of indecent assault. The indecent assaults that were indicted related to a period when JH was aged between 4 and 6 years, though it was her evidence that indecency continued until she was 17. The rapes covered a period between the ages of 8 and 11, at which age they ceased. H was convicted on all counts except one count, count 6 to which we shall have to return, of rape. G was indicted on three counts of rape and five counts of indecent assault, on all of which he was convicted. All of this conduct occurred between the ages of 10 and 11, thus being at the same time as the abuse by H.
3. There was a good deal of evidence that JH had had a disturbed and difficult childhood, including the death of her only brother when she was 15. She underwent counselling of various sorts, and then medical treatment, in the course of which, for the first time, she spoke and wrote of abuse, first by G, and much later by H. This period covered the ages of 16 to 18. Shortly after her nineteenth birthday JH left home to live with friends in another part of the country, and some three months later she made a statement to the police about G, to be followed one month after that by a statement about her father.
4. Because JH and her condition and stability attracted a good deal of attention at the trials, and again before us, it is only right to put on record that despite the difficulties of her earlier life she achieved outstanding results in her A level examinations, and secured admission to one of the country’s leading universities.

H’s trial

5. The trial was impeccably conducted by Harrison J, and no criticism was made, or could have been made, either of the process of the trial or of the summing-up.
6. H’s defence was a complete denial, and he gave evidence to that effect. A prominent feature of the defence case was the evidence of Dr Boakes, an expert in “false memory syndrome” [FMS]. She had not examined JH, nor did she appear to have any direct practical experience of a case such as she alleged that of JH to be. She however explained that FMS was now recognised as a phenomenon in which psychiatric conditions such as psychosis, depression, alcoholism or brain-damage cause a person to “recover” a memory of events that never in fact occurred. Such an event can be triggered by counselling of the sort that JH had received, which Dr Boakes thought to have been less than satisfactory. Where such memories are of traumatic episodes such as sexual abuse, the believed episode is often used as an explanation for the subject’s present problems. There is no question of dishonesty in such cases: the subject genuinely, but wrongly, believes that the “remembered” episodes in fact took place. Dr Boakes examined the history of JH’s counselling and mental attitudes; her attraction to charismatic religion; episodes of self-harm and of eating disorder; the family history, including the traumatic death of her brother and the loss of her first boy-friend; her medical records; and a very large amount of diaries and other writings left behind by JH when she left home. She also attended the trial while JH gave evidence. She concluded:

“I cannot exclude the possibility that JH’s account of abuse may in part be correct, but on the basis of the material available to me, the curious narrative quality of her memories, the fact that she has had a lot of counselling, and that she has symptoms which strongly suggest the presence of a psychiatric condition capable of compromising her memory, in my professional opinion it would be unsafe to rely upon her account as having a basis in fact…There are a number of elements which indicate [FMS] as a plausible explanation for JH’s allegations.”

7. The prosecution instructed an expert of their own, who reviewed the same material. He came to much the same conclusions as Dr Boakes. He was not called by either side. His evidence was dealt with by way of admission by the prosecution, that:

“The Prosecution do not intend to call that psychiatrist to give evidence in contradiction of Dr Boakes. The opinion of the Prosecution’s psychiatrist does not gainsay the opinion of Dr Boakes.”

8. In cross-examination of Dr Boakes prosecuting counsel, the late Miss Louise Godfrey QC, elicited a number of factors that, as Dr Boakes agreed, had to be taken into account in the context of those conclusions. The main element in this account was that the conclusions could not be definitive, and that the symptoms observed could have been the result of sexual abuse, rather than as in the analysis adopted by Dr Boakes; that since she had not examined JH she could make no diagnosis of her psychiatric condition; that the mode of JH’s disclosure, in a single and detailed statement, was more characteristic of a history of abuse than of a case of FMS; and that the histories described by JH were characteristic of what was believed to be, though Dr Boakes said without empirical support, typical of abusive behaviour.
9. The most striking allegations made by JH were those addressed in count 6. She described in her statement to the police being introduced by H, at his place of work, into a group of men, all of whom committed indecent acts in relation to her, including oral sex. In her evidence in court she said, contrary to her statement, that her father had not on that occasion committed oral sex with her. She also, for the first time, said that the men had “objects” with them, which they inserted into her. She was not specific about the nature of these objects, or about what happened with them, since she claimed to have kept her eyes shut while she was submitting to those and other indecencies. It should be mentioned here that this was the only allegation made against H of penetration by physical objects; but in her statement, and evidence, in relation to G she gave circumstantial evidence of penetration by a variety of clearly-described coloured objects.
10. The jury first acquitted H on count 6. His conviction on the other counts, by a majority, came only after a retirement of some 13 hours: a longer period, we were told, than had been occupied by the giving of the evidence.

G’s trial

11. G was tried two months after H. The trial was again presided over by Harrison J. Apart from one small complaint, not persisted in before us, no criticism was or could have been made of his conduct of the trial.
12. G was defended by experienced leading and junior counsel, the former of whom has since the trial been appointed to the Circuit Bench. Unusually, leading counsel attended the whole, and junior counsel the major part, of the trial of H. They were therefore unusually well placed to take two difficult decisions facing them in the case of G: whether to call Dr Boakes; and how to approach JH in cross-examination. Put shortly, leading counsel’s view was that JH had dealt very effectively with cross-examination about her diaries, the possible effect of her counselling, and her mental state; and that Dr Boakes had been a disaster for the defence.
13. Counsel accordingly decided that the FMS argument, and evidence from Dr Boakes, should not be adduced in G’s trial. That was because its introduction would inevitably lead to the introduction of H’s conviction, and the assumption on which that conviction had to be based that another jury, hearing the same evidence, had accepted the evidence of JH and rejected that of Dr Boakes. Counsel also recognised that he would have to proceed with care in his cross-examination of JH, when it was however inevitable that her mental state would be probed. That was for the reasons already set out; and counsel no doubt also had in mind that he was faced with a witness of unusual intellectual power, who because of her participation in the first trial did not even suffer from the handicap of unfamiliarity with the issues and the court process.
14. In addition, there were strong points to be made in favour of G, much stronger than any similar evidence available in the case of H. He was a man of impeccable record as a teacher, with many testimonials to that effect. There was no other case revealed or even suspected in which he had abused a pupil: to the extent that another lady who had been a pupil roughly at the same time as JH, and under the same conditions, gave evidence that nothing untoward had ever occurred in her case. He suffered from a physical disability, which according to the medical evidence would make it difficult for him to perform the physical acts alleged by JH. The jury were told that JH had made allegations against H of a similar sort to those made against G, but without the details of those allegations or of their resolution being put before them. The unlikely coincidence of the same sort of events occurring in complete isolation from each other, and the difficulties of JH’s mental state, were explored with her and put to the jury; but, as we have said, without support from Dr Boakes or any other medical expert. As we have seen, the jury convicted G on all of the counts.

H’s appeal

15. H’s first ground related to the length of time that the jury had had the case under consideration, it being suggested that that must indicate a real doubt as to whether some of those who voted in the majority were sure as to H’s guilt. That argument is wholly unsound. In the absence of positive evidence to the contrary the court will always assume that jurors have been loyal to their oath. And even leaving that objection aside, the conclusion sought does not follow from the premise. Lengthy deliberation can equally be a sign of conscientious desire to be wholly fair, and to leave no stone that might reveal something favourable to the defence unturned: as had been the effective burden of the summing-up.
16. Second, complaint is made that the evidence of Dr Boakes was not met by any evidence on the part of the prosecution, indeed the prosecution expert agreed with it. The jury could not therefore properly have convicted H; or, alternatively, they were not properly equipped to deal with a matter of such complexity. This argument suffers from two fallacies. First, as Mr Thomas QC recognised, complaints about incompetence of the jury would necessarily lead to an acquittal in any case where the defence introduced evidence that could be said to be “complex”. That that does not occur is because juries are trusted to deal with complex matters, many of them a great deal more complex than the issues raised by Dr Boakes. Second, as the judge rightly told the jury, it was for them to determine whether to accept the evidence of Dr Boakes. Although the prosecution did not adduce its own expert, it made some powerful criticisms of Dr Boakes, to which were added further arguments before us. It is not necessary, nor would it be edifying, to seek to reach any concluded view on that dispute. Once the jury, very properly and fully directed, had determined not to accept Dr Boakes, this court could only interfere if it could be shown that on the totality of the matter before it no rational jury could have reached that conclusion. H came nowhere near to demonstrating that.
17. Third, H relied on the acquittal on count 6. Mr Thomas very properly said that he could not claim that that acquittal demonstrated inconsistency in the narrow sense in respect of the convictions. He did, however, argue that the way in which the complaint under count 6 had come out was, on the evidence given by Dr Boakes, the strongest demonstration of FMS. The account had developed over time, as witness the late introduction of the allegations about objects; and the event described was in any event strikingly bizarre and unlikely. Had the jury properly realised that, they should have seen their acquittal on count 6 as reinforcing the FMS theory, and thus casting doubt on all the other counts.
18. There are a number of difficulties about that argument, carefully and clearly though it was put. First, Dr Boakes had heard JH’s evidence, and when examined by Mr Thomas was taken specifically to her evidence about the “count 6” incident. Dr Boakes indeed said in that connexion that one of the characteristics of FMS was that false memories tend to be elaborated over time; but the example that she gave was of other perpetrators being drawn into the scene, about which JH had always been consistent. She then made some reference to the evidence of use of objects, but only to say that such an event was rare. She did not specifically, or indeed at all, fasten upon the fact that that allegation had only been made in court as a demonstration of FMS elaboration. If the point is as clear as the appellant urges, Dr Boakes could have been expected to make it clearly herself. Second, however, it is hardly surprising that not much was made of the point. JH’s references to the objects were tentative, and unspecific. They would be very difficult to characterise as significant elaboration. Third, as to the objects, the jury in the H trial knew of the allegations made against G in respect of insertion of objects, and indeed Dr Boakes was asked about those latter allegations in front of the H jury. Any point that was available in respect of the odd similarity of JH’s recollections was therefore available to the jury and to Dr Boakes. Fourth, and perhaps most important, we simply do not know why the jury acquitted on count 6. The most obvious explanation is that this was the one count on which JH had given evidence that was in some respect inconsistent with her statement, and since it was the most lurid of the allegations the jury may for that reason have been reluctant to be sure about it. It is a large step from there to assume that they acquitted on any basis that provided supported for the FMS theory.
19. We accordingly conclude that none of the grounds of appeal advanced on behalf of H are made out.

The appeal of G

20. In a forceful argument Mr Malcolm Swift QC effectively put only one ground on behalf of G. That was that trial counsel had made a very serious misjudgement when he decided to withhold the result of the H trial, and thus much of the material that had been used in the H trial, from the G jury. The way in which the case should have been put was to accept that H had acted as JH alleged, and to argue from that that a plausible explanation of the allegations against G, first made earlier than those against H, was that JH was transferring on to her music teacher acts done by her father that she was reluctant to acknowledge could have been done by a person she loved and respected. That should have been supported by evidence as to mental state and attitude that could have been given by Dr Boakes, and by reference to the detailed similarity between the two sets of allegations: an argument much less easy to put because of the limited material as to the H allegations that had been put before the jury.
21. This argument, if pursued at G’s trial, would immediately have run into formidable difficulties, as G’s trial counsel had perceived. First, Mr Swift said that Dr Boakes could and should have been called to give evidence as to the theory of FMS, the implication being that the allegations against G were an example of that syndrome. But there was really nothing in Dr Boakes’ evidence that supported a mental process such as the argument required, as opposed to false memory as it were across the board. And if put in the witness box, in a case where the correctness of the allegations against H was now accepted, she would inevitably have been asked why she had testified in the H trial that those allegations were likely to be false. The impact on the G jury hardly needs elaboration. Second, the argument would have required a very searching investigation with JH of her mental state, reliability, and medical history. Quite apart from the view of her likely impact as a witness that had been formed by leading counsel who had seen her give evidence, it would inevitably have been put before the jury that she had given similar evidence to another jury two months before, and been believed by them. While that was not, and would not have been suggested to be, conclusive as a matter either of law or of logic, its impact on the jury must have been considerable. In particular, as trial counsel also had well in mind, an attack on JH in terms that was seen by the jury to be unjustified would have put in hazard their sympathy for the undoubtedly strong case that G could mount, as set out in § 14 above.
22. Mr Swift made some further points in support of the desirability of the course that he urged. First, it would have enabled a strong attack to be made on the basis of the acquittal of H on count 6, including its implications for FMS. The difficulty about that is that, as set out in § 18 above, the argument about the relationship between the count 6 evidence and FMS was far from clear, and there is no reason to think that Dr Boakes would have been more forthcoming on it in the G trial than she had been in the H trial; quite apart from the effect of pointing up the convictions that had been obtained, on JH’s evidence, on the remainder of the counts. Second, the jury showed interest in some of the documents that they had seen, in particular a diary entry by JH in which she said that “the past flooded in about DG”: meaning thereby G. Both Dr Boakes and the prosecution psychiatrist had attached importance to this form of words as characteristic of a sufferer from FMS. It was argued that had their evidence been before the jury, the impact of the entry could have been minimised, or even turned to the defence’s advantage. While that may be so of that particular document, the step sought by the defence could only have been achieved by the introduction of the whole of the FMS debate, with the implications that we have already set out. Third, although the implausibility of JH’s claim of concurrent abuse was stressed to the jury, the point lost a lot of impact because the jury did not hear of the detail of it. We are not persuaded by that point either, for reasons that we give at the end of this judgment.
23. When complaint is made on appeal of mistakes by trial counsel, the court is faced with two conflicting principles. The first is that unsafe convictions must not stand. The second is that it is not desirable that defendants should be able to run one line of defence at the trial, and then a second and different line on appeal. That is why the possibility of receiving such arguments has been prefaced by strong requirements such as that the conduct of trial counsel should have been beyond all reason or a piece of serious misjudgement. We do not need in this case to try to resolve the potential tension between these two considerations. That is because there is absolutely no reason to think that if the line now urged by the appellant had been taken at the trial the jury might have reached a different conclusion. If anything, the course now suggested would have further increased the likelihood that the jury would not accept G’s evidence: the position that they adopted at the trial that actually took place. That being the case, it is strictly speaking not necessary to adjudicate upon the judgement and conduct of trial counsel. We will however say that, far from what they did being a serious misjudgement, they took carefully considered and rational decisions, based upon the most reliable of knowledge that they had gone to conscientious trouble to obtain, and which were very fully open to them. The criticisms of their conduct of the trial should never have been made.

Lurking doubt

24. On any orthodox grounds the appeals both of H and of G fail. Is there nonetheless in the unusual circumstances of the two cases, with similar allegations being made against two unrelated men, enough to give rise to a fear that something must be wrong with the convictions?
25. We were provided by counsel for G with a list of the similarities between the allegations in the two cases, which were said to point to unreliable narrative on JH’s part, and which, at least in the case of G, had not been put before the jury with proper force. We did not find this analysis at all convincing. First, JH described both men as placing her hand on their penis “in a cupped position”; but that was merely her turn of phrase, common enough in a witness more educated and literate than those who normally bear the burden of describing events of this sort. Then in both cases she alleged the guiding of the penis into her mouth; ejaculation there; and the insertion of fingers into her vagina. These, unfortunately, are the common currency of abuse. In both cases she had alleged the insertion of objects, though it should be noted that the allegations in the H case were much less specific and detailed than those made against G. Dr Boakes said that such a use of objects was extremely rare, a matter that caused her to doubt the reliability of the allegations. It is unclear on what she based that evidence, which unhappily conflicts with the experience of those who work in the criminal courts. Various other alleged similarities only reflected the adventitious circumstances in which H and G respectively worked. And as against these matters the prosecution pointed to a number of features of the G allegations that were not to be found in the case of H.
26. We have given careful consideration to this, the most worrying part of the two appeals. However, coincidence, striking though it may be, cannot of itself be a reason for this court to intervene; and we are quite unpersuaded that the allegations in the two cases are sufficiently similar to give rise to a fear that one or other, or both, of them may be fabricated or otherwise unreliable.

Disposal of the appeals

27. We understand the concern about these trials and verdicts entertained by those who acted at the trials. But nothing has been put before us that would justify this court in going behind the verdicts of two separate juries, reached on the basis of impeccable directions and after the most careful of trials. The appeals are dismissed.