England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
HER HONOUR JUDGE STEELE

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/08/2006

Lord Justice Latham:

1. On the 10^th November 2005 in the Crown Court at Liverpool before Her Honour Judge Steele, the appellant was convicted of two counts of indecent assault. He was subsequently sentenced to a concurrent term of five years imprisonment. He appeals against that conviction with leave of the single judge.
2. The appellant is the uncle of the complainant. During the relevant period, the complainant was between the ages of 6 and 7; and the appellant was a regular baby sitter when his sister, the complainants mother, was out at work. The period in question was between 1995 and 1997. As a result of allegations of sexual abuse made by another relative of the appellant, but not involving any allegations against the appellant, the complainant eventually alleged that she had been sexually abused not only by the appellant, but also by her grandfather, that is the appellants father, and her step-grandfather whom the appellants mother had married after she and the father had divorced.
3. The police were informed; and the complainant gave a video interview on the 17^th December 2005 in which she made detailed allegations against all three men. The appellants father was arrested and interviewed in January 2006. In his interview he admitted the allegations made against him by the complainant. He was charged with offences of indecent assault; but died before the matter reached court. On the 26^th September 2005, the step-grandfather pleaded guilty to four counts of indecently assaulting the complainant. The appellant denied the allegations.
4. At trial, the prosecution sought to put the contents of the grandfather's interview before the jury pursuant to the provisions of section 114 or 116 of the Criminal Justice Act 2003. The judge, in her ruling said as follows:

"I take account of all the matters to which my attention is directed under section 114(2). The circumstances in which that statement were made and reliability of the evidence of the making of the statement would certainly appear to be as absolute as one might expect, taped interview in a police station. I do consider that that statement is relevant and that there is probative value in that statement.

It has been argued before me that that is not permissible, not because of matters which are raised in section 114, but because under section 116(1)(a) had Brian Tinsley been alive that particular evidence would not have been admissible as oral evidence. I look at the wording of 116(1)(a) that reads:

"Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter."

It does not say admissible in respect of a particular count or counts. It does not say admissible in respect of the crucial point of the prosecution. It says "admissible as evidence of that matter". Plain English must in my view interpret that sub-section that that matter refers to the contents of the statement."

5. As far as the conviction of the grandfather was concerned, the prosecution sought to place that before the jury pursuant to the provisions of section 74 of the Police and Criminal Evidence Act 1984. As to that, the judge said:

"Again, balancing probative value against any prejudice I am satisfied that the scales come down, as it were, in favour of the probative value, and in any event the jury would be directed as to the limits on that assisting them as to the guilt or innocence of the defendant. I will do the usual direction."

6. In fact the only direction that the judge gave in relation to this evidence was in the following terms:

"I must make it clear that those admissions relate to matters affecting the grandfather and the step-grandfather. There is no evidence that this defendant knew of any abuse that was going on, and of course the admissions of abuse post-date his interview with the police."

7. Before us, Mr Wolff, on behalf of the appellant, submits that the two rulings made by the judge in relation to the evidence of the grandfather, and the conviction of the step-grandfather were wrong in law; and he further submits that the judge, in any event, failed to give the jury any help as to the use that they should put those pieces of evidence. His fundamental point in relation to the admissibility of the evidence is that it is not relevant to any issue in the case, which he submits is a pre-condition to its admissibility under any of the statutory provisions relied upon by the prosecution. The sole purpose of the evidence was to bolster the complainants credibility on the basis that the jury could more readily believe the complainant in relation to her allegations against the appellant because her allegations against her grandfather and step-grandfather were true.
8. Miss Whyte, on behalf of the Crown, submits that credibility being an issue, the evidence which she sought to adduce was directly relevant to that central issue in the case and accordingly the evidence was admissible, so far as the grandfather was concerned, under both section 114 and section 116 of the 2003 Act, and as far as the step-grandfather was concerned, section 74 of the 1984 Act. She further submitted that the evidence was in any event admissible under the provisions of section 100 of the 2003 Act, as being important explanatory evidence. She has referred us to paragraph 9.43 of the Law Commission Report (No 273) on Evidence of Bad Character in Criminal Proceedings, which reads as follows:

"9.42 As we explained in relation to bad character evidence to be adduced against defendants, some character evidence is not strictly speaking probative in that it does not of itself prove any fact, but it is nevertheless significant in making other evidence comprehensible. Some evidence about people other than defendants may serve this kind of purpose in a trial, and we therefore recommend that leave may be given to adduce evidence of the bad character of a person other than a defendant if it has substantial explanatory value.

9.43 Thus for example in a case of intra-familial abuse, it was not only abusive behaviour by the defendant on occasions other than that charged which was valuable in explaining the case as a whole to the jury, but also abusive behaviour by other members of the family."

9. That, she submits, is the explanation for the provisions in section 100 of the 2003 Act, as to which the explanatory note provides as follows:

"360. The term "explanatory evidence" is used to describe evidence which, whilst not going to the question of whether the defendant is guilty, is necessary for the jury to have a proper understanding of other evidence being given in the case by putting it in its proper context. An example might be a case involving the abuse by one person by another over a long period of time. For the jury to understand properly the victims account of the offending and why they did not seek help from, for example, a parent or guardian, it might be necessary for evidence to be given of a wider pattern of abuse involving that other person."

10. Dealing with her submissions under section 100 first, the difficulty Miss Whyte faces is that she did not ask for the evidence to be admitted pursuant to that section. If she had, she would have had to serve appropriate notice and the judge would have had to consider with care the provisions of section 100(2) which provides:

"For the purposes of sub-section (1)(a) evidence is important explanatory evidence if –

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) Its value for understanding the case as a whole is substantial."

11. We do not rule out the possibility that a court might consider the evidence relating to the grandfather and the step-grandfather to be important explanatory evidence. But, in the light of the fact that the judge was not asked for leave to admit this evidence, as section 100(4) requires, it would be wrong for us to approach this appeal on the basis the judge would have been prepared to admit this evidence under section 100.
12. Turning therefore to the basis upon with the judge did admit the evidence, the question we have to answer is a stark one. It does not, in our view, depend upon the provisions of section 114 or 116 of the 2003 Act, or indeed section 74 of the 1984 Act. The question is whether evidence that a complainant has made allegations against people other than the defendant which are true is relevant to the determination of any issue between the complainant and the defendant. Section 114(3) makes it plain that the general Common Law rules as to relevance as a precondition to admissibility remain applicable. Under section 116(1)(a), the statement by the witness who is unavailable has to be "admissible" if the statement were given orally. Admissibility, as we have just indicated always has as its precondition relevance. As far as section 74 of the 1984 Act is concerned, that again refers expressly to the fact that the evidence of a conviction has to be "admissible".
13. The general principle is that for evidence to be admissible as relevant, it must be logically probative (or disprobative) of a fact in issue between the parties. The question is therefore, what was it that the Crown intended to prove by putting this material before the jury? The fact that both the grandfather and the step-grandfather admitted abusing the complainant could not possibly be relevant, in itself, to the issue of whether or not the appellant abused the complainant. There was no suggestion that the appellant was involved together with either the grandfather or the step-grandfather in their activities with the complainant. It follows that the only purpose for which the material could have been put before the jury was to establish that because she had told the truth in relation to her grandfather and step-grandfather, the jury could be satisfied that she was telling the truth in relation to the complainant. But the mere fact that the complainant has told the truth on other occasions, even if in the same context, cannot be logically probative of the facts that she alleges in relation to the appellant. Whilst it is tempting to say that it is relevant in the sense that the complainant's credit was "in issue", that, in our judgment, cannot open the door to evidence being called simply in order to support the argument that the witness is a credible witness. It is, in effect, a form of "oath helping", which has never been permissible as a ground for admitting evidence.
14. Whatever might have been the position had the prosecution sought to put the material before the jury under section 100, therefore, the rulings of the judge were wrong in relation to the applications under section 114 of the 2003 Act and section 74 of the 1984 Act. The appeal must be allowed on that basis alone. In fact, the Crown frankly conceded that there was a further difficulty, namely the judge, although indicating she intended to, did not give to the jury any assistance as to how they could or should use this material. That of itself might not have been fatal to the convictions. But for the reasons we have given, the appeal must be allowed and a re-trial ordered in the terms that we indicated at the time of the hearing.