England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		21 August 2006

1. LORD JUSTICE HUGHES: This appellant is a dentist. In June 2006, in the Crown Court at Wolverhampton, he was tried on an indictment which alleged indecent touching of three teenage patients - one of those on three different occasions. He was convicted upon counts which related to two of the three patients but not on the three counts which related to the third. His appeal against conviction raises the question whether the jury should have been permitted to treat the evidence of one complainant as supportive of the evidence of another. The judge held that the evidence of the several complainants was cross -admissible providing that collusion or contamination between them could be excluded. The principal contention of the appellant is by way of challenge to that ruling.
2. In each of these cases the complainant alleged that the appellant had deliberately placed his hand on her breast and squeezed it. In each case the appellant denied that he had done any such thing. He said that in the course of examination he might have brushed the breast with his arm, as clearly, one would think, a dentist might. In the first case he said that he had rested a tissue on the front of the patient's shoulder whilst de -scaling her teeth and might have pressed down upon it to hold it in place whilst wiping clean the scaler on it. In the third case he said that when the girl was rising from the chair to leave the room they got in each other's way in what he described as a "near collision" so that his left hand contacted her shoulder. We understand from Mr Coker that it was not his contention that that encounter could possibly be capable of misinterpretation as the squeezing of her breast, so that in relation to that patient his case was that nothing resembling deliberate squeezing could have taken place but that his right forearm might have brushed the breast in the course of reaching to examine her mouth. It follows that in each case his contention was, as indeed it would have to be, that nothing resembling in any way the deliberate squeezing of the breast had occurred.
3. The first complainant, H, was 12 years old at the time of the examination, which was 10 years previously in June 1995. She was the patient upon whose shoulder the tissue was placed. So to place it was accepted as legitimate dental practice. She said that the appellant first brushed his arm across her chest in a manner that she thought might well be accidental but that he then squeezed her breast between three fingers and the palm of his hand in a deliberate motion whilst holding the scaler in his other hand. She reacted immediately. It was common ground that at a stage in the examination she got up, ran out of the room and complained straightaway outside to the nurse or receptionist there and to her mother who was waiting outside.
4. It appears that that complaint was reported promptly to the police. The complainant was interviewed using the video recording procedure and the appellant was seen by the police and interviewed about it. It was at that stage an isolated complaint and the decision was made that there should be no prosecution. Years later, however, when the third complainant made a similar allegation, this first complaint was remembered and in due course it formed count 1 on the indictment before the jury.
5. The second complainant attended on five occasions in all in the second half of 2004 at a time when she was just one side or the other of her 16th birthday. She alleged that on the second, third and fourth of those examinations the appellant had placed his hand on her breast and squeezed it. She described deliberate cupping or holding of the breast, in each case during the course of what was otherwise a dental examination. There was evidence that she had spoken briefly to a school friend at around the time of the incidents saying something to the effect that the appellant had put his hand on her breast. She had not, however, made any formal complaint; she had not spoken to the dental staff. Her complaint came to light when, following the third complainant's allegation, the dental authority circulated those who had been patients of the appellant with a letter stating that he had been suspended after serious allegations unrelated to the quality of his treatment.
6. The third complainant was 13 at the time of her examination on 8th April 2005. She went to the dentist with her grandmother. She said that while the nurse was temporarily out of the room and the appellant was leaning over her as she sat in the chair and in order to examine her, she felt first some pressure on her breast that she thought must be accidental, but then that his hand moved actually onto her breast and squeezed it. This complainant did not say anything at the immediate time of the examination but she broke down that evening in the company of her father and that is when the allegation first surfaced. An immediate report was made that evening to the police and, as we have already said, it was that third complaint which led to the first complaint being re -visited and, separately, to the second complaint reaching the police and being made public.
7. At the trial there was material which the jury needed to examine relating to the reliability and credibility of each of these three complainants. In the case of the first there was a background of unhappy family history. She had complained approximately two years earlier in 1993 that her mother's partner had molested her sexually. There had been then an intervention by Social Services. For a short while she had spent weekends either with an aunt or in one or two cases with foster parents in order to avoid contact with the partner. Then, because her mother proposed nevertheless to marry the gentleman, there had briefly been emergency protection proceedings brought by Social Services as a result of which she, then aged 11, had been removed to foster care. Within a matter of days she had unsaid the complaint she had made. Her evidence for the jury to assess was that the complaint was true but that she unsaid it in order to get home and live with her mother. There was in her case also the suggestion that she had made a similar complaint against the aunt's partner. That, however, the complainant denied and there was an issue about whether the complaint had been made or not. The jury had all that material properly before it and it was able to decide for itself whether it did or did not throw doubt upon the allegation which she made at the time of her dental examination when she brought the proceedings to an abrupt close.
8. In the case of the second complainant there was rather confused evidence about whether her mother was present in the examination room on the relevant occasions. The evidence both of the complainant and her mother was not always consistent, either the one with the other or for that matter internally. In the end, both her mother and the dental nurses at the practise said that mother had been there on each of the relevant occasions. Again, the jury had that evidence fully explored and it was able to decide whether it could be sure of the accuracy of the complainant.
9. In the case of the third complainant, she had at one stage told her father that the touching stopped when grandmother, with whom she had gone to the dentist, came into the room, whereas she said in interview to the police very shortly afterwards that grandmother came in soon after the incident. Here, on the one hand, there was an issue for the jury whether there was an innocent elision of events which were very close in time or on the other a material inconsistency such as undermined her reliability.
10. After hearing argument at the conclusion of the evidence, the judge ruled that the evidence of each complainant could be treated by the jury as admissible to support that of another, providing that the possibility of collusion or contamination between them was excluded. The scope for any complainant to be aware of the complaint of any other had been fully explored at the trial. These were girls who were not known one to another. The first and third had met the appellant at different surgeries some miles apart in the West Midlands conurbation and the alleged incidents were well spread in time.
11. After introducing the topic, identifying suggested similarities, reminding the jury that the defence argument was that there were significant dissimilarities between the allegations, and after stressing to the jury that they must consider each count separately, the judge said this in his summing -up:

"The important point is this. The similar fact principle only applies if you are sure that the witnesses have not colluded and their evidence has not been contaminated by gossip from others in the same small area of Sedgeley, and Mr Coker reminded you by reference to the plan of the proximity of addresses and schools, and so on. If you are sure that there was no collusion or contamination, the principle of similar fact evidence allows you to say, as the prosecution invite you to do, that it is an affront to common sense that three witnesses should independently make such similar allegations against the same person.

It is for you to say whether in your judgment the similarities do lead you to conclude that these three girls cannot independently have invented the same or similar false stories. When you consider this aspect of the case, consider the degree of similarity. The more similar the stronger would be this line of reasoning, the less similarity the less weight should be given to the similar fact evidence. I remind you of the submissions and argument made by Mr Coker to the effect that if people choose to make allegations against a dentist then his hands would be much more likely to be in proximity to their upper body and a sexual assault is likely to be alleged by way of an allegation to do with the breast rather than anywhere else. That kind of point is all there for you to consider. The principle, I hope, is now clear. It is for you to assess whether the degree of similarity does have the logical point that the prosecution ask you to bring to bear in this case. It is for you to decide."

12. This trial was taking place in June 2006. The relevant law is and was contained in the bad character provisions of the Criminal Justice Act 2003, sections 98 onwards. So far as we can tell, virtually all the argument before the judge and a certain amount of it before us, has proceeded upon the basis of the law as it stood before the 2003 Act was enacted. That, we think we should say, is an approach which carries with it some inherent dangers. The right way to deal with the new law is not first to ask what would have been the position under the old. In saying that, we do not doubt that some, perhaps many, of the familiar considerations of relevance and fairness which confronted courts before the 2003 act in cases of multiple allegations where they were said to be of a similar kind will continue to confront them dealing with such cases afterwards. Nor do we doubt that some of the answers may be the same. There has, however, been a sea change in the law's starting point. Such a sea change has been affected by the 2003 Act in a number of respects in relation to bad character generally. In the present case the important change is that whereas previously evidence of the defendant's propensity to offend in the manner now charged was prima facie inadmissible, now it is prima facie admissible.
13. Mr Coker's careful submission on behalf of the appellant is as follows:

A. Where two or more complainants allege that they have been sexually assaulted and the prosecution contends that the allegations are mutually supportive, an important matter at issue within the meaning of section 101(1)(d) is whether it would be an affront to common sense for them independently to make such similar false allegations.

B. The question of whether a complainant's evidence is capable of being mutually supportive in that way should be resolved in accordance with the similar fact principles - see R v Boardman [1975] AC; DPP v P [1991] 2 AC 447; and R v Cowie [2003] EWCA Crim. 3522.

C. Cowie was a case in which allegations similar to the present were made against a doctor. This court held that in the context of many thousands of intimate examinations of women it was not beyond acceptable coincidence nor an affront to common sense that there should be six mistaken complaints of sexual molestation by women who had misunderstood or exaggerated what the doctor did and perceived indecency where in fact there was merely proper intimate examination. Accordingly, it was there held that the evidence of the six complainants in that case did not pass the common law test of cross -admissibility as similar fact evidence. Says Mr Coker, the same should have been held here.

14. Section 99 of the Criminal Justice Act 2003 is a convenient starting point. The common law rules as to the admissibility of bad character evidence are abolished. Section 112(2) provides as follows:

"Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly." We agree that that means that where a defendant is charged upon several counts the evidence which goes to suggest that he committed count 2 is, so far as count 1 is concerned, bad character evidence within the Act. Accordingly, the evidence relating to count 2 can be admissible evidence in relation to count 1 if, but only if, it passes through one of the gateways in section 101. The same applies vice versa and however many counts there may be.

15. For the purposes of the present case the relevant gateway is section 101(1)(d). The evidence of the several complainants is cross -admissible if, but only if, it is relevant to an important matter in issue between the defendant and the prosecution. Mr Coker would have us define the important matter in issue as whether it would be an affront to commonsense for the complainants independently to make similar false allegations. The important matter in issue in relation to each count is whether there was an offence committed by the defendant or no offence at all and section 103 expressly provides that the matters in issue between the Crown and the defendant include whether the latter has a propensity to commit offences of the kind with which he is charged, except where his having such propensity makes it no more likely that he is guilty of the offence charged. It is that provision, together with the abolition by section 99 of the common law rules as to the admissibility of bad character evidence which effects the sea change to which we have previously referred. The present case is one in which quite clearly if the evidence did establish a propensity in the defendant occasionally to molest young female patients in the course of dental examination, that did make it more likely that he had committed the several offences charged. We do not understand Mr Coker to submit otherwise. Of course, where propensity is advanced by way of multiple complaints, none of which has yet been proved, and whether they are proved or not is the question which the jury must answer, that is a different case from the case where propensity is advanced through proof of a previous conviction which may be incapable of contradiction. However, the 2003 Act governs all evidence of bad character, not only conclusive or undisputable evidence.
16. It follows that in a case of this kind the critical question for the judge is now whether or not the evidence of one complainant is relevant as going, or being capable of going to establish propensity to commit offences of the kind charged. We wish to make it clear that not all evidence of other misbehaviour will by any means do so. There has to be sufficient connection between the facts of the several allegations for it properly to be capable of saying that they may establish propensity to offend in the manner charged. But the answer to the question whether the evidence does so is not necessarily the same as it would have been before the common law rules of admissibility were abolished by section 99.The test now is the simple test of relevance - section 101(1)(d).
17. This is a point whch has already been emphasised by this Court in R v Weir & Others [2006] 1 Cr App Rep 19 at page 303, 2005] EWCA Crim 2866. We draw attention in particular in that series of cases to R v Somanathan, in which the accused was a priest charge with rape of one of his congregation and the admission of other complaints of sexual misbehaviour by him, made by other women, was upheld. Attention should be paid to the observations at paragraphs 34 -37 of that judgment, to the effect that reasoning simply from DPP v P and from a supposed requirement for enhanced probative value in evidence of this kind do not give effect to the plain language of the statute.
18. That point, as it seems to us, is very clearly illustrated by Cowie's case. There the defendant was a general practitioner. The first complainant alleged that in the course of a vaginal examination for inflammation or itchiness the doctor had deliberately rubbed her clitoris and had inserted his fingers into the vagina. He said that he would indeed have explored the labia but did not specifically rub the clitoris and inserted fingers only to the extent necessary for examination. The second and fourth complainants contended that in the course of a stethoscope examination he had pulled up the bra and exposed the breast. His case was that he did no more than adjust the bra to enable the stethoscope to be applied to the relevant place. The third and fifth complainants alleged that when investigating complaints of stomach or chest pain he took the opportunity to caress or squeeze the breasts, asking whether there was pain in that area. His case was that his actions had been necessary to the examination and their purpose had been misunderstood. The last complainant said that when dealing with possible stomach pain he had lent on her breast and that he had then put his hand between her legs asking if there was any problem down there. He said that he had been listening to her abdomen and would have done no more than sweep his hand over the area of her private parts.
19. This court was dealing with that case under the common law. It held that although the decision in the DPP v P had removed the necessity for striking similarity in order to show cross -admissibility, much of the law remained as set out in R v Boardman. It relied upon the following observations taken from the speeches in Boardman. First, Lord Wilberforce in Boardman:

"The basic principle must be that the admission of similar fact evidence ... is exceptional and requires a strong desire of probative force."

Next, Lord Cross:

"The question must always be whether the similar fact evidence taken together with other evidence would do no more than raise or strengthen the suspicion that the accused committed the offence of which he is charged or would point so strongly to his guilt that only an ultra -cautious jury, if they accepted it as true, would acquit in the face of it."

This court observed as follows:

"These observations show that the evidence of other misconduct must show more than mere propensity to commit the offences for which the defendant is charged. Lord Salmon made the point directly [in saying]:

'The test must be: is the evidence capable of tending to persuade a reasonable jury of the accused's guilt on some ground other than his bad character and disposition to commit the sort of crime with which he is charged?'"

This court further relied upon the dicta of Lord Taylor, CJ, in R v Ryder [1994] 98 Cr.App.R 242:

"The rationale of similar fact evidence is that two or more people do not make up or mistakenly make similar allegations against the same person independently of each other ...

As the decision in P makes clear, there is an infinite variety of circumstances in which the question can arise. However, even though the need for striking similarity is gone, it is still necessary to identify some identifiable common feature or features said to constitute a significant connection and which go beyond mere propensity or coincidence." (Emphasis added)

20. Those several quoted observations, relied upon in this court in Cowie, accurately stated the common law in this respect, that evidence of mere propensity was not admissible; more was required. Exactly what more was required was a matter of continuing debate. But the common law in that respect has been set aside. Evidence of propensity is now admissible. Propositions of law which are founded upon the basis that it is not admissible will not reliably form the basis now of a decision upon admissibility. For example, it is plainly not now the law that in order to be admissible evidence of other offending must point so strongly to guilt that only an ultra cautious jury would acquit in the face of it. If that were the test, most bad character evidence would not be admissible. If that were the case, the jury would not have to be told, as it must, that they should never convict on the bad character evidence alone, nor would the situation contemplated by this court in Hanson arise of the judge being alert to exclude as a matter of discretion bad character evidence if all it does is to bolster an otherwise weak case and thus would have a disproportionate and unfair effect.
21. In the present case the judge distinguished Cowie. It does seem to us that there is a relevant distinction between that case and this on its facts. There the question was whether the complainants had misunderstood what the defendant substantially at least accepted he had physically done and whether they had exaggerated it, seeing indecency where there was none. Here the question was whether or not the defendant ever did squeeze the breasts of the girls that he was examining. There the defendant in substantially admitting what he had physically done said that there was good medical reason for it. Here, the defendant did not and could not suggest that there was any dental occasion for squeezing the breasts of the patients, nor did he say that he had done that. This distinction is of course, we accept, one of degree rather than of kind. To a limited extent the defendant in Cowie denied some of the detail of the physical actions alleged and here the defendant put forward the suggestion that entirely innocent actions of his had been misinterpreted by the patients. It nevertheless does seem to us to be a relevant distinction between the two cases on the facts. But whether or not that is so, the question for us is whether this evidence was admissible under section 101(1)(d). Was it evidence which tended to establish a propensity to commit offences of the kind charged? If it did, then it is admissible unless it is unfair to admit it and the question whether in fact it shows the propensity contended for is for the jury and not for the judge.
22. It seems to us that there can only be one answer to that question. Each complainant said that in the course of his dental examination of their mouths the appellant had taken the opportunity to squeeze their breasts, for which there was no colourable dental reason. Each said that he did it without any form of endearment or suggestive remark, or attempt to engage them in private conversation about their private lives and indeed without speaking, simply affecting to be concentrating upon his dental examination. Each was a patient. Each was a teenager. If it was accepted, that evidence does tend to establish a propensity occasionally to molest young female patients in the course of examination. There was, as it seems to us, sufficient connection and similarity between the allegations which were made to make them cross -admissible under the new Act. Put simply, if three girls, or for that matter two girls, said this it did make it more likely that it was true than if only one of them said it. That, as it seems to us, remains so notwithstanding that there were countless opportunities to commit such offences which there was no evidence whatever that the defendant had taken. Nor, as it seems to us, could it possibly be contended that the proceedings would be made unfair by the admission of this evidence.
23. Mr Coker has contended, as he did before the jury, that in the case of a dentist it is interference with the breasts which is likely to be alleged if false accusations of indecency are to be made, since that is the area to which his hands are nearest. That may or may not be so. There are in fact many other forms of indecency which one can readily contemplate a dental examiner committing if of a mind to do so and thus which might be alleged. But in any event that point does not bear on admissibility. When considering admissibility the judge is required to assume that the evidence is truthful unless no jury could reasonably believe it - section 109. Whether it is in fact truthful is for the jury. Secondly, propensity to commit an offence is still propensity to do so even if it be a common offence or one which can readily be imagined by someone bent on making a false allegation. Even before the passage of the 2003 Act, the suggestion which had at one time found favour in R v Brookes that similar fact evidence had to go beyond the so -called stock in trade of the sexual offender had been discredited - see DPP v P.
24. In saying what we have, we are not to be taken to hold that all evidence of other alleged offending is necessarily admissible under section 101(1)(d). That is very far from the case. As this court observed in Hanson at paragraph 9, there must in each case be an examination of whether the evidence really does tend to establish the relevant propensity. There will have to be sufficient similarity to make it more likely that each allegation is true. The likelihood or unlikelihood of innocent coincidence will, we are sure, continue to be a relevant and sometimes critical test. We do not, however, attempt here, any more than did this court in Hanson, to foresee the myriad of possible situations which may arise. By way of example we mention, as the court did in Hanson, that it may well be that one kind of assault will fail to be capable of establishing a propensity to commit a different kind of assault.
25. For those reasons, we are satisfied that this evidence was, as the judge ruled, available to the jury if it accepted it and if collusion and contamination was excluded on a basis of cross -admissibility each to support the other.
26. The appellant further submits that if the evidence was cross -admissible the judge should expressly have reminded the jury, whilst explaining the manner in which the evidence of one complainant could be used when considering counts relating to another, of the number of consultations with uncomplaining young female patients which the defendant had had over the ten year period covered by these allegations. That, says Mr Coker, went to a crucial question for the jury, namely, whether the making of independent allegations by three patients increased the probability that the defendant had done what they said to the point where the evidence of one could properly be taken into account in relation to another. We agree that this was an important part of the defence case, although this was not, as most such cases are not, a case where it was suggested that the defendant committed offences routinely against his patients; it was a case, as most similar cases are, where it was suggested that he did it occasionally.
27. The judge did not refer to the numbers point directly. Here in this court we need to remember that the jury was listening to the judge after a trial which had lasted some six days and immediately after what was clearly a powerful speech by Mr Coker in which the numbers of patients over a 10 year period that there had been had received, we have no doubt, all proper emphasis. The numbers were not in dispute. What the judge did was to remind the jury immediately after his explanation of the approach to cross admissibility of the agreed admissions in the case. Those set out the fact that the police had obtained details of this appellant's dental practice from 1990 to date, had contacted the appropriate people within the National Health Service Management of Dental Services in relation to each part of his several practices in order to enquire whether there had been any complaints about him during that period and there had been none. The judge specifically reminded the jury of the importance which the defence attached, understandably, to that admitted fact. The jury of course also had the evidence that the dental authorities had written plainly to a very large number of patients and that had elicited the solitary complaint of the second complainant.
28. In those circumstances we do not consider that there was any misdirection in the way in which the judge dealt with the volume of patient evidence. In the event, the jury convicted on the counts relating to the first and the third complainants and acquitted on those which related to the second. We do not of course know, nor should we, the basis of their decision in relation to the second complainant. It may have been unsure about her evidence because it thought that her mother appeared to have been there, or it may have felt that there was a real chance that her complaint, which was not spontaneous, had been influenced by gossip or by the enquiry which came from the dental authorities. As we say, we do not know and it is not for us to enquire. Above all, the jury saw these witnesses and those ranged against them and could judge their reliability. The verdicts do show that the jury did not simply proceed from the three separate complaints to the conclusion that anything said about this defendant by his patients must be true. The judge had expressly reminded the jury right at the outset of his summing -up that they must not adopt that approach and must be careful to avoid reasoning by counting heads.
29. We do not consider that it was incumbent upon the judge to anticipate in advance the possibility that the jury might acquit of some counts and warn them that if they did so the evidence of the relevant witness should be disregarded so that there were then fewer allegations to support each other. In fact, the judge did, in the course of summing -up with some care, when dealing with the evidence of each complainant make a passing reference which was very much to that effect. In the case of the first complainant he said this:

"You may then consider whether there is such similarity between her complaint and that of either or both of the other girls so that you can say that these two or three people have not independently made up or mistakenly made similar false allegations against the same person. It is for you to decide Count 1."

And there were similar observations in relation to the other complainants.

30. Mr Coker's submission is rather more subtle. It is that once the jury has acquitted on the counts relating to the second complainant, that destroys or at any rate weakens the proposition that you cannot get independent complaints as similar as this unless they are true. But in cases of multiple similar complaints the proposition which the jury has to consider is not that you cannot have independent similar false complaints. Obviously you can have similar independent false complaints. The proposition that the jury has to consider is that each similar complaint makes each other similar complaint the more likely.
31. In any event, we are quite satisfied that this jury cannot have failed to realise that in finding that the counts relating to the second complainant were unproved it was saying that there were independent and similar complaints against this man which were not or may well not be true. It was, we are quite satisfied, not necessary for the judge to attempt what seems to us to be an extremely difficult exercise of foreseeing at the time of summing -up all possible scenarios of conclusion to which the jury could come and directing it hypothetically and separately in relation to each. This summing -up, we are quite satisfied, not only put the defence case fairly; it also put squarely and fairly the use to which the mutual support of each complaint to which it could properly be put. In those circumstances, although these cases are always, both at trial and in this court, anxious ones, we are satisfied that it was for the jury to gauge the evidence overall and to determine whether or not it was sure that the defendant was guilty. Our task is to say whether anything occurred which renders the jury's conclusions unsafe. We do not believe that it is possible to say that and in those circumstances the appeals against the convictions returned upon counts 1 and 5 must be dismissed.