England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
His Honour Judge Gerald Price QC
T20017262

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 June 2004

Mr Justice Keith:

1. On 19 July 2002 at Swansea Crown Court, the appellant was convicted on 4 counts of buggery with a boy under 16. He had pleaded not guilty. He was sentenced by Judge Gerald Price QC to 7 years' imprisonment in all. He appealed against his convictions with the leave of the Full Court. Following the hearing of the appeal, we dismissed the appeal but said that we would reserve our reasons for doing so. We now give those reasons.
2. The relationship between the appellant and the complainant was akin to uncle and nephew. The offences to which the four counts in the indictment related were alleged to have taken place between 1978 and 1989, when the complainant was aged between 5 and 16 and the appellant was aged between 19 and 30. The counts were not specimen counts, and so the prosecution's case was that the appellant had only abused the complainant on the four occasions to which the counts in the indictment related. There was said to be little or no evidence capable of supporting the complainant's allegations. The offences came to light in 2001 when the complainant was arrested for an offence of criminal damage at his mother's home. The complainant has been profoundly deaf since birth, and his deafness was said to explain why he had had difficulty in complaining about the appellant's behaviour at the time. The appellant's case was that nothing had happened, and that the complainant had made the whole thing up in order to deflect attention from the case of criminal damage.
3. Count 1 related to an occasion when the complainant was aged 6 or 7. He went with the appellant to a caravan which was at the back of the house where the complainant lived with his grandparents. Once inside, the appellant buggered him. The incident was interrupted when the appellant heard the complainant's grandfather approaching. The complainant tried to let his grandfather know that his bottom was hurting, but he understood from lip-reading the appellant that the appellant was telling his grandfather that the complainant had fallen over and hurt himself. He tried to tell his mother what had happened, but she had been unable to understand him. He also said that oral sex had taken place. He had not mentioned that when he had been interviewed by the police. He explained that by saying that he had been angry and frustrated at the time. He also explained other differences between what he had told the police and his evidence on the basis that he had found it difficult to communicate with a particular interpreter who the police were using.
4. Counts 2-4 all related to occasions when the appellant took the complainant out in his car. Count 2 concerned an occasion when the complainant was aged 8 or 9. The appellant took him to see some horses. Initially, the complainant said that the appellant had tried to rape him while they were in the car, though in cross-examination he said that he could not actually remember that. That was not the incident to which count 2 related. Count 2 related to what happened a little later. The complainant said that they had gone swimming in the sea naked, and that after that, while they were on a secluded part of the beach, the appellant had grabbed him, had put cream on his bottom and had buggered him twice. He had not mentioned to the police about the appellant having gone swimming or having used cream. He had tried to tell his mother that his bottom was hurting, but she had assumed that he had been horse-riding.
5. The complainant then described an incident which did not relate to any of the charges. It happened when he was aged 11 or 12. They were out in the appellant's car, when the appellant said that he wanted to have sex with him. The complainant said that he wanted to go home. The appellant agreed to take him home, but took him to some toilets near Haverfordwest instead. There was another man in the toilets, with whom the appellant had been in touch by what the appellant had described as "radiophones", but which we would call "walkie-talkies". While he was urinating, the complainant was pulled back onto the other man's penis. It touched the outside of his bottom, but there was no penetration. When initially giving his evidence, the complainant did not remember the walkie-talkies, but he did recall that when he was reminded of what he had said when interviewed by the police. The complainant thought that he had seen the man again many years later.
6. The complainant was confused about counts 3 and 4 in his evidence, but ultimately he said that count 3 related to an incident at a caravan park, and that count 4 related to an incident at Carew. On the occasion to which count 3 related, the appellant told the complainant to get into his car or he would telephone one of the complainant's teachers, a Mr Jones, and get him into trouble. He also threatened to kill the complainant. The complainant was aged between 11 and 13 at the time. He was driven to the caravan park where he was buggered, and then buggered again in the car. The appellant also put the complainant's penis in his mouth. When he had been interviewed by the police, the complainant had said that the appellant had said that he would get two men to carry out the threat to kill the complainant. In his evidence, he denied that the appellant had said that, or that he had told the police that. Later in his evidence, though, after he had been shown what he had said when interviewed, he acknowledged that he had said it after all. He attributed it to a lapse of memory.
7. Count 4 related to an occasion when the complainant went with the appellant to help put up some Christmas decorations. He was buggered in the car. He was told to keep quiet about it, the appellant threatening to report him to Mr Jones or to injure him if he did not keep quiet about it.
8. The complainant also described two other occasions on which he had been buggered which he had forgotten to tell the police about. The first occasion was when he was aged between 15 and 17. The appellant took him from Wales to England and buggered him in a toilet. The second occasion was when he was aged 19 or 20. He was going to a special school for the deaf in Cardiff at the time. He said that he had been raped by two men while the appellant had filmed it going on. That did not fit in with what he had told the police about not having seen the appellant for 13 years. That was contradicted by the evidence of the appellant's partner. The appellant's partner said that the complainant used to visit the appellant between 1991 and 1995, and had done so 15-20 times. Sometimes the complainant came with friends. The complainant had stayed the night 3-4 times. The appellant's partner had never seen any sexual contact between the two of them.
9. In his evidence, the appellant denied that any impropriety had taken place. He said that he had realised when he was about 20 that he was gay, and he had had his first relationship when he was about 21 (which is about the age which the appellant would have been at the time when the complainant said the appellant first buggered him). The defence case was that the complainant had chosen to make these particular allegations against the appellant because he knew that the appellant was gay.
10. A number of grounds of appeal were originally advanced on the appellant's behalf, but the Full Court dismissed them all with the exception of one. Before dealing with the one ground of appeal for which leave to appeal was given, it is necessary to put that ground of appeal into its proper context by identifying one of the grounds of appeal for which leave to appeal was refused. That ground related to the judge's refusal to stay the proceedings as an abuse of process on the basis that the lapse of time since the offences were allegedly committed made it impossible for there to be a fair trial.
11. A number of factors were relied upon as showing that a fair trial could not take place. Two of them related specifically to count 1. First, the defence was unable to rely on the complainant's grandfather's evidence at the trial since he had died in the meantime. Secondly, the appellant's case was that by the time of this incident, the caravan had been moved, and the land on which it had stood had been redeveloped. The lapse of time had made it difficult to obtain confirmation of that from the planning authorities. Four other factors, not specifically related to count 1, were also relied upon. First, the complainant's school's records no longer existed, and it was not possible to investigate whether the complainant's credibility could be attacked on the basis that there had not been a Mr Jones at the school. Secondly, the lapse of time prevented the defence from investigating the identity of the man with whom the appellant had allegedly been in touch in the Haverfordwest incident. Thirdly, the fact that the complainant had not been medically examined at the time deprived the defence of medical evidence which might have revealed no injuries consistent with buggery. Fourthly, cross-examination of the complainant about his failure to report the abuse may have resulted in the complainant having to reveal the allegation of criminal damage against him, which might have resulted in the appellant being cross-examined on his previous convictions.
12. The Full Court concluded that the judge's refusal to stay the proceedings could not be criticised. The Court dealt with each of the factors said to show that a fair trial could not take place. It said:

"First, it transpired that there had in fact been no attempt to obtain confirmation from the planning authorities as to when the site, on which the caravan in which the incident in count 1 is alleged to have taken place had stood, had been redeveloped. Secondly, the complainant's grandfather had only arrived in the aftermath of that incident. All he could have given evidence about ….. , had he been alive, was what he had been told about why the complainant was crying. In view of the complainant's difficulty in getting across what he says happened, what his grandfather understood he was being told would not have helped one way or the other. Thirdly, the lines of enquiry which the defence could no longer investigate about ….. Mr Jones and about the man involved in ….. the Haverfordwest incident do not sound particularly productive, but, in any event, a proper direction about the disadvantages which the defence are under when defending such stale allegations would have gone some way towards meeting the defence's concern. Fourthly, medical examination at the time might have revealed injuries consistent with buggery, but, even if they had not, a lack of physical evidence confirming anal penetration would not have been inconsistent with buggery. And finally, the prosecution had undertaken that it would itself introduce the allegation of criminal damage against the complainant as part of its case with the result that its revelation would not have exposed the complainant to the risk of being cross-examined on his previous convictions."

13. The one ground of appeal for which leave to appeal was given by the Full Court related to the reliance placed by the defence on the decision of this court in B [2003] 2 CrAppR 13. A stepfather was convicted of subjecting his stepdaughter 30 years earlier when she was aged between 7 and 11 to sexual abuse on a regular basis 3-4 times a month. Like the present case, therefore, it was a case in which allegations of abuse were made many years after the abuse was alleged to have occurred, in circumstances in which, by the date of the trial, there was little or no supporting evidence one way or the other. It was, at the end of the day, the complainant's word against that of the defendant. Having concluded that there were no grounds of appeal in the conventional sense, including no legitimate basis upon which to challenge the judge's refusal to stay the proceedings, the Lord Chief Justice, Lord Woolf, said this at para. 19:

"On the whole, the best time to assess whether a case is fit to be left to the jury is not before the trial has started but at the end of the trial when a judge is in a position to take into account the actual evidence presented to the jury by the prosecution and by the defence. As far as we are aware no application was made to this judge to rule again at the end of the trial. We certainly do not criticise those who were involved in the case for that. If the judge had been minded to take a different view to that he had indicated on the application for a stay, we are confident that he would have made that clear to counsel, and counsel, no doubt appreciating that, were not going to make an unnecessary application. Accordingly, we are satisfied that no complaint can be made about the judge's decision to allow the case to go to the jury for a verdict."

14. It follows from that that the Court must have thought that the trial judge had been correct to conclude that it would not have been unsafe for the jury to convict the defendant on the evidence as it stood at the end of the defendant's case. Nevertheless, at paras. 27-29, Lord Woolf said:

"27. However, there remains in this court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even where the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious that we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task it is to see that the guilty are brought to justice. We must also do justice to the victim. In this case we are particularly conscious of the position of the victim. If she is right, she was treated in a most disgraceful way by someone whom she should have been entitled to trust: her stepfather. For years, for understandable reasons, as we have already indicated, she felt unable to make public what had happened. She is entitled to justice as well. But we also have to do justice to the appellant. At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted.

28. In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not, as [his counsel] says with force, able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. [His counsel] says that to say to a jury, when faced with allegations of the sort that were made here, 'I have not done it' is virtually no defence at all.

29. We have looked at all the circumstances of this case. We have sought to act in accordance with the principles we have set out earlier. In the end we have come to the conclusion that this is one of those residual cases where in the interests of justice we must set aside [these] conviction[s]. That may be an injustice to the victim. It may be an injustice to the public in the sense that a guilty person is not going to suffer any further punishment than he has. But, nonetheless, having regard to the lapse of time, the very limited evidence that was available in this case, we have come to the conclusion that it is our duty to allow this appeal."

15. We have two comments to make about B. We see a degree of tension between para. 19 and paras. 27-29. It is questionable that the judge was right to conclude at the close of the evidence that it would not have been unsafe for the jury to convict the defendant, if it had been impossible for the defendant to defend himself. Secondly, although the court spoke of a "residual discretion", we remind ourselves that if the court concludes that the conviction is unsafe, it must be set aside. We approach this appeal in that way.
16. B was subsequently considered by a differently constituted division of this Court in Hooper [2003] EWCA Crim 2427. That was another case of sexual abuse, this time involving 15 schoolboys during the 1960s and 1970s. In commenting on the case of B, Rose V-P said at paras. 71-74:

"71. It is to be noted that the delay in that case was of the order of 30 years. We find no statement of principle in the judgment given by that court that that period, or any other period, should be regarded as being determinative of a decision in relation to a stay on the grounds of abuse of process by reason of delay.

72. Indeed, it is apparent from the many authorities in this area, that the length of delay is but one of the factors to be considered in the exercise of the trial judge's discretion as to whether or not to grant a stay.

73. It is also to be noted that, in B, there was but a single complainant. It is also to be noted that the defence in that case was that she was confused and may therefore have been mistaken in her recollection."

Pausing there, we are not convinced that that was right. We rather think that the defence in B was that the complainant made it all up. Be that as it may, Rose V-P continued:

"As is apparent from what we have already said, there are 15 complainants in the present case, and the defence is not confusion but lies.

74. Furthermore, the Lord Chief Justice, in paragraph 26 of the judgment said:

'One thing is clear: the jury saw the witnesses and we have not. Therefore they were in a better position to judge where the truth lay than this court. Furthermore, the trial process depends upon our confidence in the jury system. We have to have confidence that they made the appropriate allowance here for delay.'

There is, in our judgment, nothing in B to sustain this appellant's appeal."

17. To that, we should add that while juries continue to decide questions of guilt, we must have confidence that they will make allowances for the difficulties faced by a defendant who can only say "I didn't do it" as well as delay. After all, Lord Woolf himself referred to the change in the law effected by the Criminal Justice and Public Order Act 1994, removing the requirement for a jury to be instructed about the danger of convicting without corroboration. As he went on to say in para. 26:

"…..we also have to have in mind the intervention of Parliament. Parliament made the decision as to where they considered the right balance between the prosecution and the defence should lie in regard to the question of corroboration. We must not seek to go behind the decision of Parliament. Therefore juries in cases of this sort must be left with the difficult task of determining where the truth lies."

18. Against that background, we ask whether this was indeed a case in which we should conclude that the convictions of the appellant were unsafe because the appellant was put in an impossible position to defend himself. It is said that he was in such a position because of the lapse of time since the commission of the alleged offences, the absence of any contemporaneous records which the appellant could use to challenge the complainant's evidence, and the supposed lack of supporting evidence for the complainant's allegations. In our judgment, these convictions were not unsafe. Unlike the case of B, there was some, albeit not much, supporting evidence for the complainant's allegations. First, the complainant's mother's evidence was that the appellant had been a regular visitor to the house, and that on occasions the appellant had taken the complainant off in his car alone. That evidence was to be contrasted with the appellant's evidence which was that he had had very little contact with the complainant, and had never taken him out in his car. But if the jury accepted the complainant's mother's evidence, the appellant would have had plenty of opportunities for abusing the complainant and his credibility as a witness would likewise be harmed. Secondly, the appellant in his evidence accepted that he knew of a public toilet in a lay-by near Haverfordwest where gay men would meet. The appellant denied ever having taken the complainant there, but the fact that the complainant put the incident in a toilet which had that reputation was some support for his allegations – unless, of course, the jury thought it possible that the complainant had chosen to put this incident in this toilet because he knew of the reputation which the toilet had.
19. Moreover, unlike the case of B, there was plenty of material on which the complainant could be cross-examined to cast doubt on his credibility and reliability as a witness. There were the differences between what he had told the police when he had been interviewed and his evidence in court. There were the inconsistencies between what he said in one part of his evidence and in another part. There were the incidents which he had not told the police about and which he referred to for the first time when he gave evidence. And there was the fact that he had not told anyone about the abuse (in the sense that he had not been able to get it across, for example, to his mother and grandfather) at the time, and did not come out with it until many years after the abuse had ceased. Although the appellant could do little more than say "I didn't do it", his counsel, unlike defence counsel in B, would have been able to conduct a forceful cross-examination of the complainant. There may be an irony in a conviction being safe when there are, for example, inconsistencies in the complainant's evidence which provide material for cross-examination, but unsafe when the complainant's evidence is so consistent that it does not provide material for cross-examination. But if the rationale of B is the inability of the defendant to mount an effective challenge to the complainant's case, that is the logical consequence of it.
20. For these reasons, the appellant's appeal against his convictions must be dismissed. This is not a case for a recovery of defence costs order to be made.