England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		16th June 2006

1. LORD JUSTICE MOSES: As long ago as 30th October 2002, at the Crown Court at Truro, this applicant was convicted of one count of indecent assault on a female and of four counts of indecency with a child for which, about one month later, he was sent to prison for four years. The lapse of time is such that he has already served that sentence. But he seeks before us leave as an applicant to extend the time for appeal and to appeal against his conviction. It will be appreciated that this application and appeal is seriously out of time but, before considering whether such permissions as he requires should be given, it is necessary for us to consider the facts as they were alleged against him, his response to them and the merits of the grounds of appeal he seeks to advance.
2. The facts concern a young girl who was his daughter's stepchild, the daughter of his daughter's husband. She was born on 10th November 1984. She complained in her video evidence that she had been sexually abused from about the age of five. The burden of the evidence that she gave in her video interview related to a period from the time when she was eight, in about 1992, up to about the time some four years later, in 1996 or 1997, but she did say that there had been a earlier occasion when she had been indecently assaulted as it emerged during the course of her evidence during the video interview. It is unnecessary to detail the full account which she gave of the gross indecency which she alleged but it involved masturbation in front of her and of her, at the applicant's instigation, assisting him in masturbating, as she alleged. She also alleged that there had been an earlier occasion when he put his hand inside her knickers and touched her private parts. She had not complained about it at the time. It had happened, she said at first, 30 to 35 times in all, although later she had said it had happened two or three times a month but the occasions had diminished when she became 12 or 13. It had emerged during the course of difficulties she was having, particularly in relation to her boyfriend. She had had a difficult life with her stepmother; her little brother had, she said, at the time of a major proportion of these incidents, been in foster care. The account she gave was, as we have said, not revealed at the time: she complained to nobody until she had mentioned it at the age of 16, in other words much later.
3. As a result, the applicant was interviewed in November 2001; over ten years since the earlier incident. He was a man of good character who is now 55. He completely denied these offences, as he was to do one year later, when the trial took place. He had lived, as he accepted, next door to where the complainant lived for a period of time. There is now some doubt about precisely how long that was but there was a period when he did live next door. His essential defence was that he would have had only very limited opportunity to be alone with her and thus commit these offences. He was in full-time work in 1989, with very little contact with her at all. He did accept that on a very few occasions he baby-sat for the girl, but that was some years later, for 20 or 30 minutes or less, but there would be members of his family or friends present in his home where most of the offences were alleged to have taken place. He said that the complainant was usually with friends or other members of the family, playing, during that period.
4. Other witnesses were called to confirm his evidence: his wife, who described their relationship as fantastic and, indeed, said that, most of the time, other people would be in the house, for example their son, who spent a lot of time there. Others also confirmed that account to the jury. There was the clear evidence of good character adduced on his behalf -- he was a man who had never been in trouble before and had a positively good character, a hard-working, caring family man.
5. The grounds of this appeal present a most unfortunate state of affairs. This applicant has had the benefit of good legal service, both from a solicitor, instructed in 2005, and from his counsel, Mr Thorogood, neither of whom acted for this applicant before. But we describe this application as unfortunate because it turns on what are contended to be serious defects in the fairness of the trial, flowing from inadequacies in the directions that the judge gave to the jury. The first relates to the directions which he ought to have given to the jury in relation to the lapse of time between the allegations made by the complainant and the time when this applicant was interviewed in November 2001, with the trial a year later. The lapse of time in this case, as in so many others, between the facts giving rise to the complaint and the interview of this applicant in November 2001, had considerable impact on his defence. As we have said, his defence was that nothing untoward had taken place; it was a complete denial. He said, as we have pointed out, that he had very little opportunity to be alone with the complainant and had only baby-sat on a few occasions for short periods. The delay clearly prevented any precision in the evidence which he could give, still less which any witness to be called on his behalf could give. Moreover, as is clear from the nature of the cross-examination of the complainant, it was part of the applicant's case that the complainant had been looked after by a stepfather's niece, a girl called Zhalini, between 1992 and 1994. She could not be called to give evidence because she died in 2004. Moreover, in the house where most of the offences were alleged to have taken place, where this applicant lived, there lived also his father. He spent most of the day downstairs and might have given further evidence to support the defence case of lack of opportunity. He died in 1994. These were quite specific disadvantages under which the defence laboured as a result of the delay. Moreover, there was, as in so many other cases like this, a general disadvantage of the defence arising from the inability to adduce evidence of the demeanour of the complainant, perhaps with the defendant or on her own, which might suggest that she did not give the appearance of suffering in the way she described that she was suffering. It also diminished the possibility of identifying features to suggest either exaggeration or fabrication.
6. These specific and general features of the difficulties which the defence faced cried out for the customary direction to the jury as to the difficulties which the defendant laboured under by reason of the delay. It is of particular importance to appreciate that the customary direction is focused on the difficulties caused by delay to the defendants. The problems caused by the delay, as R v Percival teaches (see [1998] EWCA Crim 2012, The Times 20th June 1998 and a transcript of 19th June 1998), are not of equal importance to the prosecution or the defence. The warning, if it is necessary to be given, should be directed to the problems caused to the defence by the delay. That is not to say, as this court has said previously, that such a direction must be given in every case, nor to be prescriptive as to the precise content of the direction. Each case will depend upon its own facts, which will dictate the nature of the direction and, indeed, whether it is necessary to give any direction at all. Nor, as this court has frequently remarked, will a failure to give such a direction necessarily affect the safety of the conviction. This case does not disclose as substantial a delay as in many others, but, for the reasons given both in general and in particular to the facts of this case, such a direction was necessary.
7. We recall the decision of this court in R v M [2000] 1 Cr.App.R 49, important, not least, because of the fact that the judgment was given by the then Vice President, Rose LJ. He pointed out that, usually, it will be desirable to give a clear warning as to the impact of delay on the memory of witnesses and the difficulties which may have resulted to the defence. He pointed out that such direction need not be given in every case. But in cases where such a distinction is necessary, as this court pointed out in Percival, it was not merely a question of the adverse effect of delay on both prosecution and defence: it was important to instruct the jury as to the difficulties faced by the defence.
8. In the instant case, not only did the judge fail to give any warning, he appears positively to have encouraged the jury to disregard the delay. In his summing-up, he said this:

"Of course, all these things were a long time ago. The indictment goes back to as early as 1989. But you will no doubt have noticed that the defendant was interviewed in November last year, so it is very nearly a year since he has been interviewed. I do not know what the delay has been about, members of the jury. Whatever the delay was, it has not been relevant either to the prosecution case or to the defence case, otherwise we would have heard about it, so do no worry yourselves on that account. Whatever the reasons were for the delay, they are not important so far as your decision in this case is concerned."

9. It appears that the judge was referring to the irrelevant delay since the interview and the trial, but there is a real risk, by virtue of his reference to 1989 in the second sentence of that passage, that the jury may have been misled into thinking he was referring to the delay back in 1989. On their face, those words seem to be saying that the jury should disregard that substantial period of delay, whereas, for the reasons we have given, they should have been instructed as to the significance of that delay and the adverse impact upon the defence.
10. That error was, in our view, exacerbated by the judge's apparent encouragement to view the complainant's evidence in a favourable light because of the difficulties that she faced by reason of the delay. In a passage shortly before the passage we have read in the judgment, the judge refers to the discrepancy between her evidence in saying that the occasions of abuse had happened between 30 to 35 times and later two or three times a month. He said this:

"The maths are very difficult to get hold of in a situation like this and it may very well be that she is wrong about the number of times and other details. The human memory simply is not capable of that sort of accuracy ... if you are sure that in substance she is accurate about the basis of this whole thing, then you would be entitled to rely on her evidence to convict the defendant on the indictment."

11. This direction was directly contrary to the learning in Percival. The impact of the delay trenches on the fairness of the trial so far as the defendant is concerned and it is that feature of which the jury should be instructed in cases where the issue of delay should form part of the judge's directions.
12. The judge's errors and failure to follow the guidelines set down by the Judicial Studies Board do not stop there. In relation to character, the applicant, as we said, was 52, with no previous convictions and of good character. The judge said this:

"The last small, not at all small, very important, but short matter of law to mention before I move on the facts is that the defendant is, as we lawyers say, a man of 'good character'; he has no previous convictions, and you have heard witnesses testify to his character as a decent family man. If, of course, you are sure that [N] has told in substance the truth, then that cannot save him, but it is highly relevant in his case for two reasons. He can say and does say through his counsel, 'I am a decent, respectable man. I go into the witness box and take the oath and tell you what happened. You can believe what I say as a decent family man.' In other words, it enhances his credibility as a witness. And, secondly, he can say, obviously, 'I am a decent respectable family man, I would not do what I am being accused of and there is nothing in my life before that suggests that I would.' But it begs the essential question of where the truth lies, and that is for you to discover."

13. This direction was, in our view, inadequate in two respects. The first, if it stood on its own, might not be fatal. It is important that a judge should instruct the jury that they are required to take into account good character in the defendant's favour in two specific respects. The defect in this summing-up is that it tended to suggest that the relevance was something upon which his counsel relied rather than as something which they must take into account. That, of itself, may not have led to the view that this was defective, but the final sentence in the passage that we have quoted was, in our view, a serious defect. It significantly undermined the effect of what had gone before. In saying, probably meaninglessly, that that passage begs the essential question of where the truth lies, since it begged no such question at all, the judge failed to direct the jury that this evidence of good character was, as many decisions of this court teach, of evidential significance. The essential importance of good character evidence is that the jury should not reach a concluded view as to the truthfulness of a complainant's evidence without taking into account the two important features of the good character of the defendant, both of which are relevant to the assessment of the truthfulness of the complainant's account. In other words, the process by which the jury reached a conclusion as to the truth of the allegations requires, in accordance with proper directions from a judge, the jury to take into account the good character of the defendant. The vice in the directions given by this judge was that it sought to separate those two issues.
14. There was a further defect, in our view, in the directions given by the judge. As we have indicated, the complainant's evidence was given by a pre-recorded video and she was cross-examined through the video link. The judge said in his summing-up:

"You have also witnessed a young person giving evidence through a video-link. That is entirely routine these days. There is nothing special about this case in that regard."

That is correct, so far as it goes, but it did not follow the specimen directions of the Judicial Studies Board. That is not to say that every judge must slavishly follow the precise words contained in that guidance but the defect in the summing-up in fact given in this case is that no explanation was given to the jury as to why it was necessary to do so, in other words to enable the witness to be more at ease, nor was any warning given that it should not be considered prejudicial to the accused.

15. There was a further serious defect in the failure of the judge to draw attention to certain comments made by the questioners during the course of the interview with the complainant. As commonly occurs, words were uttered by the interviewers designed to put the witness at rest, to give her peace of mind and to encourage her. Such words were spoken during the course of the interview, for example, the complainant said:

"...I just don't want it to happen to my sisters.

Q. Okay. Nobody deserves to happen to them. You've got the perspective right; he is wrong, not you."

Other similar expressions were uttered by the interviewers. It was, in our view, in this particular case incumbent on the judge, if those matters were to be before the jury -- and we make no criticism of the decision to allow them to go before the jury -- to warn the jury that the apparent approbation of the interviewers was not any indication as to where the truth lay.

16. All these defects in the summing-up are most unfortunate, but they lead to our conclusion that this applicant did not have a fair trial. What then should be done? There was, as we have said, substantial delay between the trial and the attempt by this applicant to obtain assistance from his current solicitors, but we are persuaded that that was due to the fact that his then counsel gave only oral advice and did not draw attention to any of the defects which in our view were quite apparent in the summing-up. We have had no explanation as to why that was. His counsel then is now a judge. But, in our view, it was incumbent upon his counsel at the time to identify the defects which we have identified: it is not difficult to discover them; they must have been even more apparent to anyone who was listening. We take the view that the substantial delay was due to the inadequacies of the advice that he was given at the time. The applicant is not a sophisticated man, with any experience of criminal procedure. Others, particularly his wife, sought to obtain assistance and eventually they were well served by his current solicitor and counsel. There has been no delay attributable to him since he sought advice. But the consequence has been that he has served his sentence and therefore it would be wholly wrong to order a new trial.
17. Yet one must not forget that the complainant herself will have suffered as a result. She has never had her accusations tested in accordance with a fair and proper trial. So she too suffers if the appeal is allowed in consequence of the delay.
18. We are satisfied that the verdicts are unsafe, by reason of the serious defects we have identified in the summing-up. In those circumstances, we shall allow the application, extend time for leave to appeal, give leave to appeal and allow the appeal. It would, as we have said, now be wrong to order a retrial. It is in those circumstances we allow the appeal but we do not do so without making one thing quite clear. Our decision today has no relevance to the truth or otherwise of the allegations. They simply have not been tested in accordance with a fair and proper trial procedure. We require, therefore, an appropriate person to obtain a transcript of this judgment and to tell the complainant precisely what has happened and to explain carefully to her why that has happened. That person should explain the reasons for allowing the appeal and why we do not mean that she has been disbelieved but rather that the procedure by which the conviction resulted was wrong. Equally, we should make clear to this appellant, and his family, that nothing we have said means that we are making any comment one way or the other on the truth of the allegations. They simply have not been properly tested. He was subjected to an unfair trial procedure and it is now too late to test those allegations since he has already served a prison sentence.
19. We should mention that other grounds were raised. In particular, it was sought to adduce evidence of an expert in memory. We say nothing as to the appropriateness or otherwise of such evidence, had it been necessary to consider it.
20. For the reasons we have given, the appeal is allowed.