England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Harrow Crown Court
His Honour Judge Sanders
T20030685

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/04/2006

Lady Justice Smith :

1. On 6^th April 2004 at the Crown Court at Harrow the appellant was convicted by a majority verdict of two counts of indecent assault. They were counts 1 and 3 on the indictment. He was acquitted of count 2, indecent assault. The jury was unable to agree on a fourth charge of indecent assault and the appellant was discharged. He now appeals against his convictions by leave of the full court.
2. At the time of these offences the appellant was a general medical practitioner. At his surgery in Pinner, Middlesex, in addition to his regular practice staff, he employed two schoolgirls, whom we shall call A and N, as part-time filing clerks. N, who was 14 when she began to work for the appellant some time in 2001, complained that, on many occasions during her employment, the appellant indecently assaulted her by touching her intimately, by placing his hands round her waist, touching her bottom and back and breathing on her neck. That was Count 1. These actions were accompanied by inappropriate remarks, mainly compliments of a personal nature. These actions made N feel uncomfortable in the appellant's presence.
3. As to count 2, N also complained that, on a specific occasion the date of which she was unsure but probably in about June 2002, the appellant had examined her chest with a stethoscope inside her blouse and under her bra for no good medical reason. The appellant was acquitted of that.
4. As to Count 3, the complainant A, who was 15 when she started to work for the appellant in April 2002, alleged that during the course of her employment, the appellant touched her indecently and made inappropriate remarks. Her complaints were broadly similar to those of N.
5. As to Count 4, A alleged that, on 3^rd May 2003, while she was in the nurses' room at the surgery, the appellant rubbed her breasts inside her top and put his hand between her legs, in the area of her vagina. The jury was unable to reach a verdict on that count. Thus it was that the jury convicted the appellant of what might be described as more general allegations of indecent assault but either acquitted him or could not agree in respect of the more specific allegations.

N's Evidence

6. In evidence, N said that she had started working at the surgery because the appellant had offered her work during a medical consultation when she attended the surgery with her mother. Initially she worked at the surgery two evenings a week and on Saturday mornings. For about the first six months, there was no problem. There were many occasions when the appellant was not at the surgery. However, after a while the appellant began to behave in an over-friendly manner whenever he was there. He paid her compliments about her appearance. He would feel her back and ask her if she played a lot of sport, remarking that she was very fit. He would come up behind her, asking how she was getting on and his body would be touching hers. If she were working from a ladder, he would put his hands on her bottom and round her waist. She thought that the receptionists noticed his conduct. If ever his wife was in the surgery, the appellant did not speak to N. N claimed that, because of his conduct, she decided to give up working on Saturday mornings. When she told him of this decision, he asked her if she knew of anyone else who would like the work. N said that she asked whether it could be either a boy or a girl but the appellant said that it should be a girl as 'they were more focussed'. N had introduced her friend A. N said that the appellant had already started touching her when she suggested to A that she might like to work for the appellant. But she said she had not told A about the 'worst things'.
7. Some time after A had started work, she and A started talking to each other about the appellant and they discovered that the appellant was behaving in a similar way to both of them. N said that, in about July 2002, she told her mother that she felt uncomfortable in the appellant's presence because of him touching her. She understood that her mother then spoke about N's discomfort to a receptionist called Bobby, who suggested that she should speak to the appellant's wife, who was the practice manager. The mother did not do so but advised N to go to the surgery when the appellant was not there. She was to tell her mother if anything happened. Later, Bobby advised N to speak to the appellant about her problem but she did not wish to do that. In January 2003, N decided to stop working for the appellant.
8. It was put to N that she and A had put their heads together and had made up complaints about him. She agreed that she and A had talked about the appellant but they had not made anything up. It was suggested to N that she had a grievance against the appellant because her work had been criticised as slow and inaccurate. N denied that. She said that she had not been criticised. Far from it, she had been told that she was very good.
9. N agreed that she had talked to A about the appellant on a chat line on the internet. She agreed that she had also talked about the appellant in front of a friend of A's called G. She said that A had made a specific complaint to her about what the appellant had done on Saturday 3^rd May 2003. A had said that the appellant had pushed her against a wall, had touched her nipples and had put his hand down her trousers. It was then that they had decided that what the appellant was doing was not right and that they should do something about it. They had spoken to a counsellor at school on the following Monday.
10. N also gave evidence, in respect of Count 2, about an occasion when the appellant had examined her medically without the presence of either her mother or another member of staff acting as chaperone. She said that this had occurred while she was at work at the surgery. She said that the appellant had put his stethoscope inside her bra. The appellant denied that he had ever examined her without the presence of her mother or a chaperone. He was acquitted and we say no more about it.

A's Evidence

11. A said that she went to work for the appellant for two hours on a Saturday morning. N had suggested it. The appellant was not there much at first but then he started coming in more frequently. He chatted to her about her hobbies and school. He started to pay her compliments about her appearance, her clothes and her figure. He asked her if she played sport; although she said that she did not, he would ask her again the next week. She thought this was weird. Then he began touching her as he squeezed past her in reception. The passageway was narrow but it was not necessary to touch. The appellant would move her out of the way by holding her hips. He would put his arms round her and tell her that she was really fit and had a great body. He would touch her and squeeze her.
12. A thought that it was in November 2002 when she and N had first talked to each other about what the appellant was doing.
13. She described an incident on 3^rd May 2003 when, she said, a more serious assault occurred. She said that the appellant had asked her to find some files for him and to help him by inputting information on the computer records. They went into the nurse's room and were sitting side by side in front of the computer. He started rubbing her, including her breasts. And then he partly unzipped her jacket and was able to put his hand down her inside top. He was breathing heavily. At one stage he wanted to measure her height and he pushed her against the wall where the measuring stick was and kept her there. From time to time, he would leave the room while she put one file away and took out another. When he returned he would resume. He started to touch her legs so she crossed her legs so that he could not get his hand in between. A did not tell him to stop doing this but she did not like it and was very upset. When she left work that morning, she met her friend G and told G what had happened. G had gone to speak to the appellant as he was leaving in his car but she did not hear what was said. She also told N what had happened and they decided to speak to the counsellor at school. A decided that she would not go back to work at the surgery.
14. In cross-examination, A said that, when N suggested she come to work at the surgery, she had not said anything about the doctor touching her. She talked to N about what the appellant did and also to her friend G. She agreed that she and N had talked about the appellant on an internet chatline and that this had included speculation about his relationship with another member of staff. On 6^th May both A and N had told a counsellor about their experience. A said that she had hesitated to tell the counsellor as she had been reluctant to get the appellant into trouble. At one stage she thought perhaps she had provoked the appellant into behaving as he had by wearing unsuitable clothes so she changed what she wore. She said that she had not told her parents what had happened or that she was at court as she was not close to them.
15. A denied that anyone at the surgery had ever said that the filing was behind and that the appellant had ever said that she was not working hard enough. She said that when the appellant's wife was in the surgery, (which was only once or twice) the appellant did not speak to her or acknowledge her. She said that on one occasion the appellant had brushed his face against her cheek; it was not a proper kiss but she might have told N that the appellant had kissed her. Finally, it was put to her that she and N had put their heads together and had fabricated all the allegations. She denied it that and asserted that what she had said was true.

Other Prosecution Evidence

16. A's friend G gave evidence. She said that on the morning of Saturday 3^rd May 2003, she met A outside the surgery. A told her that the appellant had indecently assaulted her. She saw the appellant come out of the surgery; he was about to drive away. G said that she shouted at the appellant, accusing him of being a pervert and 'doing stuff' to A. G claimed that the appellant had said that he was sorry and would not do it again. G described the appellant's car as dark red and like a Volkswagen Golf but it appears that the appellant had never had such a car. The judge gave a warning that the jury should be particularly careful about her evidence.
17. Jennifer Singh was the counsellor who had been consulted by both girls on 6^th May, three days after the alleged assault on A in the nurse's room. In cross-examination, she said that A had complained that on 3^rd March she had been in a locked room alone with the appellant. On other occasions the appellant would come up close behind her, breathe heavily and on one occasion he had kissed her.
18. N's mother confirmed that it had been the appellant who had suggested that N might work at the surgery. She said that N had enjoyed her work to begin with but the time came when she did not want to go. The mother had asked her what the problem was and N had explained that she was uncomfortable when the appellant was there. The mother agreed that N had not specifically said that the appellant had been touching her. The mother spoke to a receptionist called Bobby, in confidence, and the receptionist said that she had not noticed anything amiss but that if the girls were uncomfortable they should speak to the appellant or his wife.
19. Bobby the receptionist said that she had not noticed anything unusual at the surgery on 3^rd May. She had left at about 11.30, at the same time as A.
20. In cross-examination she said that N's mother had never raised any concerns with her. She explained that if any young female patient had to be examined there was either a parent present or a chaperone. She had never seen the appellant behave inappropriately with either girl. As for the 3^rd May, she did not recall that A had been missing from the reception area on that day and she would have noticed if she had been gone for any time. She remembered that the doctor went upstairs to the nurse's room with a handyman who had arrived at about 10am. A had remained in reception all the time. After the handyman had left, she told A to get ready to leave. A was not upset and made no complaint. She and A left at the same time. The appellant would lock up and leave soon afterwards. As she was walking away from the surgery, she saw the appellant leaving in his grey hatchback.
21. She considered that both girls were very slow at their work and she had to encourage them to concentrate. N was all right to begin with but later became slow; A was always slow. She had told the appellant and his wife, who was the practice manager, about that. She denied that she had ever said to A that she thought the appellant fancied her. She denied that she had anything other than a professional relationship with the appellant.
22. Dr Patel, who worked as a locum doctor, said that the appellant was nice, caring and approachable. Neither A nor N had raised any concerns with her.
23. Another receptionist, Mrs Taylor, said that she was unaware of any problems between the appellant and the girls. They had not complained and she had not seen anything inappropriate. Both were slow at their work and she had told the doctor about A being slow shortly before A left. She assumed that that was why A had left. She said that N had left 'for her own reasons'.
24. Three other receptionists and the practice nurse said that they had not seen anything amiss with the appellant's behaviour. They thought that both girls were slow with the filing.
25. The appellant was arrested on 24^th June and interviewed on the following day. He denied all the allegations, including the alleged encounter with G. He said that A had never used a computer at the practice. The alleged assault on that day had never happened. They had not been in the room together and he had not touched her ever. He said that he had never complimented either girl on their appearance or their bodies. When asked whether he could think of any reason why the girls would make up allegations about him, he said that he did not know but that it might possibly be because their work had been criticised by one of the receptionists and the nurse. He said that he had spoken to them both about being slow with the filing. He had spoken to N in about January and to A in about April. When A left in May, he understood that it was because she was working for exams. The appellant did not mention a number of specific details which he was to mention when he gave evidence at trial.
26. The Crown confirmed that the appellant was of good character and that, so far as was known, there had been no complaints about him as a doctor or as a citizen.

The Defence Case

27. The appellant gave evidence. He had been a GP for 30 years and no complaint had ever been made about him. He said that the suggestion that N should work at the surgery had come not from him but from N and her mother. He said that the girls must have made up the allegations but he did not know why they would do so save that they might have had a grievance because their work had been criticised as slow. The staff had grumbled about their work. He had spoken to N on two occasions, although he did not criticise her directly as he didn't want to put her under pressure. After the second time she had stopped coming. A's work was more strongly criticised by the staff. He spoke to her twice in 2002. Records were not being properly filed. He did not behave in a different way when his wife came to the surgery. He was never alone with either girl. There was no special relationship between him and Bobby.
28. He then gave a detailed account of the events of 3^rd May. He said that he was due to go to a wedding ceremony that day. He arrived at the surgery at 9.30; Bobbie was on reception and A was filing. He said that he told A that it would be better if she concentrated on her studies and it would be all right if she stopped working the next week. He saw two patients, signed repeat prescriptions and went through the post. A handyman arrived soon after 10am. The appellant showed him upstairs at 10.15. Then he went to his office to do some work. Then he had to input some information into a patient's notes and he went into the nurse's room to do it. While he was there the handyman came to mend the curtain rail. A was not with him. The patients' entrance was locked at 10.30. The handyman left about 15 minutes before he (the appellant) left. Bobby and A left at the same time, only a minute or so before him. He saw them go in opposite directions. He went off in his grey car. As he was leaving, a neighbour waved and asked him in for a cup of tea. He declined because he was going to a wedding. He drove off. He had no conversation with G.
29. When he was arrested on 24^th June, it was a complete shock and before he was interviewed he had had no opportunity to look in his diary to see what he had been doing on 3^rd May. He had wished to be interviewed on 24^th June but he had been kept in the cells until 25^th and had not slept well.
30. So far as concerned the specific allegation made by N that he had conducted an inappropriate medical examination, he said that patients were always seen with a parent or chaperone. If listening to a patient's chest he would not put the stethoscope under the clothing and he would avoid the breasts.
31. In cross-examination, he said that he had never touched the girls while in the reception area, not even when he squeezed past them; it was wide enough to pass without touching. He said it appeared that he had been wrong to say in interview that A had never used the surgery computer; he had then been focussing on 3^rd May; he now knew that Bobby had shown A how to use the computer.
32. As for 3^rd May, he agreed that there was a measuring stick in the nurse's room but he said that A did not go in there that day. He himself had worked in there for about an hour that morning. The handyman had arrived. When he was interviewed, he had forgotten about the handyman. The handyman was with him in the nurse's room for about 25 minutes. A was not in the room. He agreed that, in interview, he had not mentioned seeing a neighbour as he was leaving the surgery on 3^rd May.
33. Asked why he thought the girls might have made up untruthful allegations about him, he said that there were many complaints about their work. He had never dismissed anyone before but he did ask each of them to leave. He agreed that, in interview, he had not said that he had dismissed them. That was because he was tired and shocked; he had not been concentrating well. His answer in interview in connection with what he had said to N about the criticisms of her work was put to him and he acknowledged that it was different from what he was now saying. He said that his brain had not been functioning properly in the interview. He said that he had been tortured by the police for 36 hours and they had not been humane. It appears that he did not mean that literally; just that he had found his incarceration to be torture.
34. Various witnesses were called to confirm the accuracy of the some of the details of his evidence. The neighbour confirmed that he had asked the appellant in for a cup of tea but he had refused because of the wedding. The priest who performed the wedding ceremony was called. The handyman described his movements in some detail; this confirmed the appellant's evidence about the 3^rd May. Also the appellant's wife gave evidence that the girls' work had been poor.

Discussions between Counsel and the Judge

35. In the course of cross-examination, prosecuting counsel put to the appellant that he had said a number of things in evidence that he had not said either in the course of his interview or in his defence statement. Objection was taken by the appellant's leading counsel to this reference to the defence statement and the judge directed that there should be no further challenge related to that. It was, of course, accepted that prosecuting counsel was at liberty to cross-examine about inconsistencies between what the appellant had said in interview and what he had said in evidence. The judge remarked briefly that 'inferences could only be drawn at my discretion – as a result of silence or failure to make a point in the interview and to rely on it later'.
36. Later, when prosecuting counsel addressed the jury, she drew attention to the inconsistencies between what the appellant had said in interview and what he had said in evidence. In particular she reminded the jury that he had said that he had spoken to each girl about their work but not immediately before each of them left. He had not said that he had dismissed them. Yet in evidence he said that he dismissed each of them. She also reminded the jury about the lack of precision about 3^rd May in interview and the detailed account he had given in evidence. However, notwithstanding reliance on those differences, there was no discussion between counsel and the judge before the summing up began about whether the judge should give the jury an adverse inference direction. He did not do so. If either counsel had been concerned about this, there were several opportunities for the point to be raised both during the summing up and at its end.

The Appeal

37. Following his conviction, an application for leave to appeal was made based upon grounds of the appellant's own drafting. Leave was refused by the single judge. The appellant then instructed fresh counsel, Mr Barlow, who advised renewal on different grounds of appeal. The initial grounds were abandoned. The full court gave leave in respect of three new grounds.
38. Mr Barlow submitted first that the judge had failed to warn the jury of the danger of what he called 'innocent contamination' of the evidence of the two complainants. The two girls had made no secret of the fact that they had talked to each other about the appellant's behaviour towards them. They had talked over an internet chatline and they had talked to A's friend G. Mr Barlow said that the record of the chatline should have been made available. A request had been made for its production and the defence had been told that the records were only kept for 24 hours. Mr Barlow claimed to know that that is not so. He did not suggest that this court could do anything about it. It was a concern that he wished to draw to our attention.
39. Mr Barlow accepted that the defence case had been that the allegations were completely untrue and fabricated. Although there was no obligation upon him to explain why the girls should make untrue allegations, the appellant had suggested that perhaps they had a grievance about criticism of their work. Counsel had put to the girls that they had made up their allegations and that there was no truth in them. The judge had dealt with that contention fully in the summing up. At the trial it had not been specifically suggested by the defence that the allegations had come into existence as the result of these two teenagers talking to each other; in other words that the genesis of the allegations was innocent teenage gossip. Nonetheless, submitted Mr Barlow, the judge should have warned the jury of that possibility. He should have given the sort of direction suggested by this Court in R v Alan 2003 EWCA Crim 3461. That was a case in which there was a possibility that the complainants might have been influenced by what they had heard other people say by way of complaint. The court there advocated that, in such cases, the jury should be warned that, if they thought it possible that a complainant might have been influenced in making an accusation or in respect of any detail by what he or she had heard from others, they should take that into account when assessing that complainant's evidence. The absence of such a direction made the convictions unsafe.
40. For the Crown, Miss Halsall, who also appeared at the trial, submitted that this had never been a case of innocent contamination. The defence case was specifically that the allegations were false from first to last. They were an invention. Although the girls had made no secret of the fact that they had discussed the appellant's actions on many occasions, it had never been suggested that the allegations had grown innocently out of those discussions. This was not a case of similar fact evidence where a specific warning had to be given. She submitted that in these circumstances, no warning was called for and the absence of any such warning did not render the convictions unsafe.
41. We can understand why no such warning was given. The dispute in the case was whether there was a word of truth in what these girls were saying. It had never been suggested that the girls had misconstrued something the appellant had said or had exaggerated something he had done and had then talked about it so that the allegations had grown out of a misunderstanding. Nor had it been suggested that the allegations had grown from nothing as the result of teenage chatter. If either of those suggestions had been made, then such a warning would have been called for. It may be that, in an ideal world, out of an abundance of caution, the judge should have warned the jury even though no such suggestion had been made. If the judge had merely mentioned such possibilities, it would have served as a warning. However, we do not think that the judge's failure to give this warning is a matter for criticism.
42. Nor do we think that the absence of such a warning would in any event make the convictions unsafe. We think that juries are well aware of the possibility that young girls might gossip to each other about sexual matters. It seems to us that the jury was very careful about the truthfulness and accuracy of the evidence of these girls. They acquitted on count 2, which was a rather more florid allegation than count 1. Some of them were unsure about count 4, the most serious allegation made by A. Yet, they convicted on the less serious allegations made by both girls. It seems to us that the jury must have had well in mind the possibility that the girls had exaggerated about some matters; yet they were satisfied about the general allegations of indecent touching.
43. We turn to the second ground of appeal. It is said that the judge erred in the way in which he summed up the law relating to recent complaint. Beginning at page 7 line 17, the judge said:

"The evidence that A made her last complaint soon after the alleged assault and the terms of that complaint she made to her friend G that Saturday, cannot as a matter of law be treated as evidence that it happened or evidence of how it happened. Indeed, although it is not suggested that she made other recent complaints, she has said that she spoke to several other people about what went on in the surgery, as did N, and in some cases, for defence purposes, those witnesses have been asked what either girl said to them.

The only relevance of complaints made in this way therefore, if you accept that they were made, is that they may show that A's conduct after the alleged incident was consistent with her evidence about it, in the same way as N was tested to see if what she said to people at the surgery, or in authority, was consistent with what she said to you on video and in cross-examination. Complaints of this kind do not support either A or N's evidence since that evidence does not come from a source independent of the girl making the complaint. I hope that is clear. It simply goes to show consistency."

44. Mr Barlow's complaint was that N should not have been included at all in this direction relating to recent complaint. He accepted that there was evidence that A had made a recent complaint to G. But, he submitted there was no evidence that could possibly amount to a recent complaint in relation to N. However, Miss Halsall told the court that it had been accepted by the defence that N's evidence that she told her mother that she felt uncomfortable about the appellant's behaviour towards her amounted to a recent complaint. Accordingly, the judge was right to include N in the direction on recent complaint. Mr Barlow had to accept that but then submitted that the judge had failed to refer to the inconsistency between N's evidence and her mother's. N said she had told her mother she was uncomfortable about the appellant touching her. The mother said that actual touching had not been mentioned. Miss Halsall pointed out that the judge had reminded the jury about that inconsistency when summing up the evidence. She submitted that the mother's evidence broadly supported N's about the fact of the complaint having been made.
45. In our view, the direction of law relating to recent complaints might have been more clearly expressed. It would have been better to deal with each girl separately at that stage. However, we think that the direction was adequate to get across to the jury the main message that, if they accepted the evidence, it was not independent evidence of the truth of the complaint but could only go to consistency. We do not think that this ground of appeal is made out.
46. As his third ground, Mr Barlow complained about the way in which the judge dealt with the discrepancies between what the appellant had said in interview and what he said in evidence. He submitted that the discrepancies were such to amount to a failure to mention in interview a fact relied on at trial such that an adverse inference direction should have been given pursuant to section 34 of the Criminal Justice and Public Order Act 1994. He complained that, instead of giving a full direction as he should have done, the judge drew attention to the discrepancies and left the jury to make of them what they wished, without providing all the safeguards of a full direction. In order to consider this submission, it is necessary to set out the relevant passage from the summing up.
47. At page 71, the judge referred to the way in which prosecuting counsel had cross- examined the appellant about his failure to mention the handyman in his defence statement. He explained that there was no obligation on the appellant to do so. He went on:

"However, members of the jury, although you must disregard that aspect of the case, do look at the interview carefully. You are entitled to consider it and the absence of any detail of the handyman in there, or indeed of the neighbour to whom he said he had words and shook hands, or waved, who invited him in to tea. They do not appear in his interview at all.

Of course, the defendant was told, and it is the law, that he needn't say anything but he did elect to give a very full explanation of his position with regard to these allegations and they are omitted. The interview was on 25th June last year and that would have been only eight weeks after 3^rd May. It may be the conditions in which he was kept all night clouded his memory, his tiredness from not sleeping at all, having been up all day the previous day with pressure and worry on his mind. But, there it is, it's a fact that you are entitled to take into account, and he's been tested on it, he doesn't mention those matters in his interview."

48. The judge then went on to remind the jury that Bobby had confirmed the appellant's evidence about the presence of the handyman on 3^rd May. Then he turned to the evidence in relation to the neighbour. The appellant had accepted in evidence that he had only contacted the neighbour very recently to ask him to remember the events of 3^rd May. He reminded the jury about the appellant's explanation for not having contacted the neighbour earlier; he had not thought it necessary to contradict G's evidence which was obviously wrong, as she claimed he was in a red car. But, as the prosecution were still pursuing the allegations, he thought he had better get some more evidence.
49. Mr Barlow submitted that these passages amounted to an invitation to the jury to draw an adverse inference, if they wished, without giving them any warning about the conditions which must be satisfied before they could properly do so. These were that they should not draw an inference unless they were satisfied that the appellant could have been expected to advance his full defence in interview, that the only sensible explanation was that he had no answer at that time which would have stood up to scrutiny and that the prosecution's case was so strong as to call for an answer.
50. It was pointed out to Mr Barlow that the adverse inference direction for which he contended went to the appellant's failure to tell the police about the handyman and the neighbour, both of which pieces of evidence related only to count 4. The jury had failed to agree on that count and the appellant had been acquitted. Mr Barlow was asked how the judge's failure to give an adverse inference direction about those matters could have affected the safety of the convictions on counts 1 and 3. His reply was that the jury might have drawn an adverse inference against the appellant on count 4 and this might have affected his general credibility. In any event, said Mr Barlow, the judge had drawn attention to inconsistencies between what the appellant had said in interview about speaking to the girls about their poor work and what he had said in evidence, namely that he had dismissed them. This went to counts 1 and 3 as well.
51. We examined the way in which the judge had summed up this part of the evidence. He quoted the appellant's evidence about having dismissed the girls, reminded the jury of his explanation for not having said that in interview and reminded the jury of what the appellant had actually said in interview on the subject of the girls' poor work. In so doing, he did not pass any comment and he did not give any implied invitation to draw an adverse inference from the differences.
52. In response to this ground, Miss Halsall submitted that there was no requirement for an adverse inference direction in the circumstances of this case. However, she accepted that it might have been better if she had asked the judge to give such a direction. Then at least there could have been argument about it and the defence stance would have been known. As it was, the matter was never discussed. It must be inferred that the defence did not think it appropriate to raise the point with the judge. The judge had said that an adverse inference could only be drawn at his discretion. Miss Halsall submitted that the giving of an adverse inference direction can be damaging to the defence. It gives prominence to evidence which the defence might prefer not to emphasise.
53. We say at once that we can see some force in Mr Barlow's submission that the judge encouraged the jury to consider the differences between the interview and the evidence at trial, in respect of the handyman and the neighbour. That might well have encouraged them to doubt the appellant's credibility. However, the first question we must answer is whether there was any duty on the judge to give an adverse inference direction. In respect of the appellant's failure to mention the handyman and the neighbour, we think that section 34 was potentially engaged in that there was a failure to mention matters later relied on in evidence. In respect of the evidence about the shortcomings of the girls' work and whether they had been dismissed, we do not think that section 34 was engaged at all. The appellant had not failed to mention something in interview; he had given one account in interview and a different account in evidence. It is important to remember the origin and purpose of section 34. It was introduced at the time when the accused's right to silence became qualified. If he chose not to answer questions in interview or to mention facts that he would later rely on in his defence, an adverse inference might be drawn subject to the various warnings that the judge had to give. This section was never intended to apply where a defendant gave one explanation in interview and said something different in evidence. That frequently happened in trials before 1994 and there was no duty on the judge to give any particular warning about it. Everyone knew that the change in explanation might cast doubts upon the defendant's credibility. He would do his best to explain why it had happened but it was a matter for the jury to make of it what they wished. Accordingly, we are quite satisfied that there was no requirement for any direction or warning as to the jury's approach to the evidence relating to the girls' dismissal. Indeed, Mr Barlow has not suggested that there was.
54. As we have said, the evidence relating to the handyman and neighbour did potentially engage section 34. In our view, as prosecuting counsel had cross-examined on the failure to mention the handyman or the neighbour in interview and had addressed the jury on those issues, she ought to have raised with the judge the question of whether he would permit the jury to draw an adverse inference. It seems to us that the Crown might well have been justified in seeking a section 34 direction. It appears that the defence probably did not want such a direction. Their case was that the appellant had not had access to his diary; without it he could not remember what had happened on 3^rd May. The full blown direction might well have done the defence case more harm than good.
55. If addressed, the judge would have had to make a ruling. If he decided that this was a case in which the jury could properly draw an adverse inference, he would have had to give the full direction. If he decided that this was not a case for an adverse inference, he should have told the jury that they could not do so: see R v McGarry [1999] 1 Cr App R 377. What he ought not to have done was to leave the jury to draw an inference if they chose without giving any warning at all. We think that the words he used had that effect.
56. Accordingly, we conclude that the judge did err in the way in which he summed up the evidence relating to Count 4. Had the appellant been convicted on that count, we would have been concerned about the safety of that conviction. However, he was not. Mr Barlow submitted that the inadequacy of the direction under count 4 affected the appellant's credibility so as to render the other convictions unsafe.
57. We do not accept that submission. We have already said that the judge was not under any duty to give a warning about the appellant's shifting evidence in relation to his claim that he had dismissed both girls. Because of the differences between what he had said in interview and what he said in evidence, his credibility was called into question. It was open to the jury to draw an adverse inference from that inconsistency if they chose to do so. The grounds for doing so were far stronger than they had been in respect of the handyman and the neighbour. It was entirely credible that, without access to his diary, the appellant might have forgotten what he had done on 3^rd May and might have forgotten about the handyman and the neighbour. But in respect of the evidence about dismissing the girls, he had no such explanation for the change. The jury would be entitled to conclude that he must always have known whether he dismissed the girls as he claimed in cross-examination or only gave them encouragement to improve, as he claimed in interview. In short, the attack on the appellant's credibility was far stronger in respect of counts 1 and 3 than it was on count 4. The judge summed up the facts in relation to that point very even-handedly and left the jury to make their minds up. That was a perfectly proper approach. We do not think that the fact that the judge had wrongly permitted the jury to draw an adverse inference in respect of Count 4 on which they did not convict undermines the safety of the convictions on Counts 1 and 3.
58. We recognise the damaging nature of these convictions for the appellant. In addition to considering the three grounds of appeal, we have stood back to consider whether we feel anxiety about these convictions for any other reason. We have in particular considered whether there is any reason for concern that the jury convicted on some counts but not others. If the jury were uncertain of a complainant's reliability on one count, could they sensibly accept her on another? This point has not been argued by Mr Barlow, in our view rightly. We consider that there are sensible distinctions which the jury could have drawn between counts 1 and 2 and between counts 3 and 4.
59. For these reasons, the appeal must be dismissed. We do not consider that this is a case in which any order should be made for the recovery of defence costs.