England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Chelmsford Crown Court
HHJ Hayward Smith QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/07/2007

This is the judgment of the court :

1. The appellant, Mark Lamb, is a teacher who has been convicted of sexual activity in breach of trust with two 17 year old girl pupils whom he taught at his school. The anonymity of the girls in question is protected by statute. We will refer to them as AB and CD respectively. We will not name the school other than to say that it is in Essex. We allowed the appellant's appeal and quashed his convictions at a hearing on 4 May 2007, but reserved our reasons, which are now contained in this judgment.
2. The appellant was convicted on 9 August 2006 following a six day trial in the Crown Court at Chelmsford before HHJ Hayward Smith QC and a jury on two counts charged under section 16(1) of the Sexual Offences Act 2003 (abuse of position of trust: sexual activity with a child). On count 1 (concerned with AB) the conviction was by a majority of 11-1; on count 2 (which concerned CD) the verdict was unanimous. On 25 October the appellant was sentenced to 40 weeks imprisonment suspended for 2 years on each count to run concurrently, with a requirement to carry out unpaid work for 100 hours.
3. The appellant was aged 33 at the time of trial. He was of previous good character. He had taught religious education at his school, where he was also head of the sixth form. He was popular with both teachers and students, and was known as an excellent teacher. A female colleague (Miss Bennett) and the head-master (Mr Hammond) were called to give evidence by the prosecution, but what they had to say was entirely in his favour. He called numerous pupils in his defence, all of whom spoke well of him.
4. The incidents which gave rise to the two counts occurred a year apart, in each case at the end of the school's annual Leavers' Ball, in May 2004 and May 2005 respectively. The ball was held at a hotel. Alcohol was available. The protagonists were all, to a greater or lesser degree, drunk or tipsy.
5. AB's complaint was that at the end of the ball in May 2004, the appellant was in her room at the hotel and there attempted (unsuccessfully) to kiss her and touched her bottom. CD's complaint was that at the end of the ball in May 2005 she and the appellant had kissed passionately a number of times on the hotel patio, and that on the third occasion the appellant had put her hand on to his groin, where she could feel his erect penis under his trousers. The appellant acknowledged the occasions in question, but denied any wrongdoing. He said that in May 2004 he had gone to AB's room because he had heard that she was upset, and that there he had done no more than put an arm round her shoulders to comfort her; and that in May 2005 CD had tried to kiss him, but he had resisted her advances. It was alleged that the two girls were lying, but for independent reasons, for no collusion was suggested: AB in order to get back at her boyfriend with whom she was out of humour that night; and as for CD, he did not know why she should fabricate her account, for he had a good relationship with her, and all he could think of was that he had decided against making her a "midday assistant".
6. Despite the unattractive nature of this defence, the complaints had nevertheless had a chequered history.
7. AB made no formal complaint until July 2005, some fourteen months after the May 2004 incident of which she complained. In the meantime: (1) that same night she had told her boyfriend, Dan, that, as he put it in his evidence, the appellant had been kissing her on the neck and touching her stomach, her bottom and her leg; (2) Dan tried to persuade her to report the incident, but she chose not to, saying at trial that it would ruin her A levels and "I also thought that it was a mistake as to what happened, that he didn't mean it and everyone makes mistakes"; (3) five months later, in October 2004, she made an entry in her diary "Lamby tried it on with me. We cuddled and kissed, but I told him to go. Miss Bennett kept ringing. Told Dan. Dan extremely pissed off"; (4) in May 2005 she heard about the incident involving CD, through a mutual friend, Kirsty, and she then "felt partly responsible that it had happened again" and decided that "I must do something about it"; (5) even so she did not make a report until after a school trip to Mersea Island in July 2005, when, after two days discussions with CD and Kirsty, she finally persuaded the reluctant CD to join with her in a report: "It took me two days to persuade [CD] to report it because she didn't want to".
8. The essential issue on this appeal was whether the judge had directed the jury on the cross-admissibility of the evidence on the two counts in terms which did justice to the danger, not of guilty collusion to lie about the terms of the girls' complaints, but of innocent contamination of their evidence arising from their conversations together.

AB's evidence

9. At trial, AB gave evidence as follows. She had gone to the ball in May 2004 as the guest of her boyfriend, Dan, who was a leaver. She remained in school the following year, when she was deputy head girl. She was sharing a room at the hotel with Dan. She and he had been bickering all night "mainly brought on by the alcohol". She had become upset that Dan had been dancing with a number of other girls, including an ex-girlfriend. She was feeling a bit jealous about this. (In his evidence, Dan said that after he had danced with another girl, he and AB had had a falling out and that they almost ignored one another there after. At one point of the evening she declined Dan's request for a dance and, as "a way of getting my own back" told him "Oh no, I'm dancing with Lamby", as the appellant was known. She took the appellant on to the dance floor. Towards the end of the dance, he lifted her up and "I put my legs round his waist". That came from her witness statement, which she verified in cross-examination. In her evidence in chief she had said that "he put my legs around his waist".
10. At between midnight and 1 am she and Dan went to their room, but Dan left her there for the bar. She was visited in her room by a friend who tried to persuade her to join others in the bar, but she declined. A little later the appellant knocked at her door, saying that he had spoken to Dan and had come to see if she was OK or upset. (The appellant in his interview and in evidence said that he was concerned that AB was upset and wanted to check that she was OK. He told his colleague, Miss Bennett, that he was going to check on AB in her room. Miss Bennett knew that he was there, because she rang him there later.) AB and the appellant sat on the bed talking. She felt comfortable and regarded the appellant as a friend who had come to see if she was OK. She said that he put his right arm around her, and she did not think anything of it, at the time.
11. According to her evidence the mood changed when the appellant said that in the next year she would no longer be a student, things would be different and they could get a room together. (She agreed in cross-examination that this did not make sense, as she would still be a student next year.) She got up, but did not ask him to leave. She said that at one point she was kneeling on the bed facing him as he stood and he put his hand on her bottom and said "Oops, I'm touching your bum." And he tried to kiss her, a number of times, leaning towards her, and she pulled away. She thought he was drunk.
12. Dan arrived back in the room and asked her to come to the bar with him. She said no, and Dan left again. Miss Bennett phoned, a number of times, to speak to the appellant, and he said he would be down in a minute. (Miss Bennett said she phoned three times, AB in her witness statement said at least five times and possibly as many as ten times.) But he only left when AB opened the door for him to go. He had been in her room for about half an hour.
13. Five minutes later, a friend arrived to invite her again to join others at the bar. She agreed, and did not say anything to her friend, since they were not that close. At the bar she saw Dan, and asked him to come with her back to the room. There, she broke down crying and told him "everything". (In due course, Dan's evidence of what he was told went well beyond AB's evidence of the incident. He said that she told him that "he was kissing her on her neck and touching her stomach, her bum and her legs".) She was cross-examined on the basis that she told Dan a story to make him jealous, and that none of it had happened, but she denied that. He urged her to report the incident, but she did not want to. She thought it would ruin her A levels, also that it was a mistake, that the appellant "didn't mean it", and everyone makes mistakes.
14. On the following Monday, back at school, AB met the appellant, who said: "We had a funny conversation on Friday night." He also suggested that it was "best to keep it to ourselves". There was no apology. After that AB did not continue with religious studies (presumably at A level) in the appellant's class. She was angry and annoyed, because their previous friendly relationship (she also spoke of an extremely good relationship, and of vying with another girl student for his attention) could not continue as before. She did, however, ask the appellant to write her a university reference in October 2004, since she preferred it to come from him, as head of the sixth form, to one from her form tutor, who she felt did not know her so well.
15. I have referred above to AB's diary entry of October 2004. I repeat it here for convenience: "Went to Leavers' Ball. Lamby tried it on with me. We cuddled and kissed, but I told him to go. Miss Bennett kept ringing. Told Dan. Dan extremely pissed off."
16. In May 2005, AB went to the Leavers' Ball again. That is the occasion of the incident involving CD. AB was now a leaver herself. Her chronology of what happened thereafter is not clear from the judge's account of her own evidence, but it appears from other evidence at the trial that two days after the 2005 ball CD told her friend Kirsty, who was also a very good friend of AB, about the incident involving the appellant and her, that is to say that they had kissed and that he placed her hand on his penis; that CD had then pulled away and the appellant had said "okay, fine". Kirsty was shocked and phoned AB for advice. AB then told her that "the same thing" had happened to her the year before.
17. In July 2005, the three girls, AB, CD and Kirsty met up at a school trip to Mersea Island. AB's evidence about what happened on this trip was as follows:

"It was brought to my attention that there had been an incident that following year with [CD] and it was for that reason that I reported it. I felt partly responsible that it had happened again because I didn't do anything about it the year before. That is when I decided that I must do something about it. It took me two days to persuade [CD] to report it…because she didn't want to...[CD] and I had many discussions about reporting it. She was very upset. I told her I was going to report it whether or not she did. She eventually said that she would support me. I only reported it because of what happened to [CD]. I didn't tell anyone because I thought it was a one-off drunken mistake. When it happened a year later, I realised that it was not and I realised that I should report it in case it happened again."

CD's evidence

18. CD was a year behind AB. In May 2005, she was 17 and, although not a leaver herself, had been invited to the ball. She knew the appellant quite well and had a friendly student/teacher relationship with him. She would chat to him regularly in his office about school matters. She drank 10-12 bottles of Smirnoff Ice, a vodka alcopop, and accepted that she was "drunk up to a point". She danced with the appellant.
19. Towards the end of the ball, she was at the bar with other students, the appellant and another master. She cuddled the appellant and the other master. She acknowledged herself as flirtatious, bubbly, fun and mischievous. She kissed them both on the cheek. She encouraged them to kiss her on the cheek and then moved her head so that the kiss came on the lips. "It was all good fun." She thought that the appellant was drunk. Still later, after returning to her room and then to the bar, she found the appellant and the other master still there. The appellant wanted to fetch his camera from the ballroom, and CD said she was going that way and accompanied him. They were holding hands. The appellant went outside on the patio, and first she lost him and then she followed him outside and found him there. "We ended up kissing", then stopped and then started again, then stopped. The appellant said: "I can't do this, I'm married." They were interrupted by a passing couple, but there was then a third kiss. It was then that he guided her hand to his crotch area, where she felt his hard penis. She moved her hand away, saying "Stop, this isn't right." The appellant said: "Fine, fuck off".
20. The next morning, at the hotel, the appellant sought her out and apologised. She said sorry too. She asked him not to say anything.
21. That day, and again two days later, CD met Dan's sister, who was also a student at their school. She said that she had seen CD and the appellant kissing. On both occasions CD said that nothing had happened. (The sister also gave evidence: her account was that CD had asked her not to tell anyone as the appellant could lose his job.)
22. Back at school, CD told the appellant about her conversations with Dan's sister. She was worried and upset, and in this state told Kirsty. She heard from Kirsty about AB's incident the previous year.
23. In July 2005, she went on the school trip to Mersea Island, where she spoke to AB, who told her "it has happened to me. We must make sure it doesn't happen again." Although CD reported her incident, her position remained as she put it in her witness statement, viz –

"I still feel guilty and responsible for the trouble this will lead to. I took part in the kissing of Mr Lamb willingly, but I did not consent or willingly touch his penis through his trousers."

24. She was cross-examined on the basis that she had made her story up, but she said it did happen.

The appellant's evidence

25. The appellant was a married man with a young child. He had been to eight Leavers' Balls. He was extremely close to AB. He described her as a perfect student. He said that at the time of his arrest he did not think that there was any reason for her to have made her allegations, but that subsequently he felt that they had been escalated to make Dan jealous. He accepted to being tipsy at the May 2004 ball. He had gone to AB's room because he was fond of her, was slightly annoyed that her boyfriend was not bothering with her, and felt sorry for her. She looked upset. He put his arm around her, to console her. He denied the gravamen of the complaint against him: that he had tried to kiss her, had touched her bottom, or had spoken of sharing a room the next year. He was in the room half an hour. He was getting a lift home with Miss Bennett and her fiancé, and when she started ringing, it became a joke to keep her waiting. On the following Monday he did not ask AB not to tell anyone.
26. As for May 2005 and CD, he could not think of why she should make an untrue allegation. He was reasonably drunk. On leaving the bar with CD he did not hold hands with her. They did not kiss, but CD leaned towards him to kiss him. He attempted to avoid it, but failed. He was kissed on the lips. He pushed her away. They did not kiss three times. He did not put her hand on his erect penis. He did not say "fuck off". That was a lie. He did seek her out the next morning, but that was to reassure her about her own behaviour.

The ground of appeal

27. There is one essential ground of appeal, although it has gone through some development and reformulation. However, as explained at the hearing of the appeal, the real complaint is that, in circumstances where the new provisions regarding bad character contained in section 101 of the Criminal Justice Act 2003 (the "2003 Act") permitted the evidence on each count to be cross-admissible on the other, it was important for the judge to direct the jury carefully about the dangers of innocent contamination of the girls' evidence, especially in the light of the events of the Mersea Island weekend (but also to some extent because the two incidents were not in themselves very similar, but appear to have been regarded by the girls, and the judge, as being substantially similar, if not identical).
28. Thus there was discussion before the judge about the 2003 Act. The issue of cross-admissibility was not pressed to a ruling. Rather Miss Kamill, on behalf of the appellant, then the defendant, accepted that the jury would be directed that the evidence on the two counts would be cross-admissible. There was also to some extent discussion about the manner in which the judge would direct the jury in this connection. Miss Kamill's complaint, however, is that the judge's direction differed from that which she had anticipated in two important respects: primarily, in that the judge failed to attach significance to the dangerous aspect of the lengthy discussions between the girls at Mersea Island, and in this connection omitted an important part of the standard JSB direction in relation to cross-admissibility; and secondarily, in that the judge included a passage on "coincidences" which Miss Kamill submitted went well beyond what the evidence allowed.
29. On behalf of the Crown, Miss Nash was disposed to accept that the judge ought to have given a direction about innocent contamination (or what the standard JSB direction describes as conscious or unconscious influence) as well as guilty collusion, but that in circumstances where there had been no case of collusion at all, nor of innocent contamination, but only a defence that the girls had been independently lying for their own reasons (or for none), the convictions were nevertheless safe.

The Criminal Justice Act 2003

30. Section 98 of the 2003 Act provides:

"98. References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –

(a) has to do with the alleged facts of the offence with which the defendant is charged,…"

31. Section 112(2) provides:

"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."

32. Section 99(1) provides that the common law rules governing the admissibility of evidence of bad character are abolished.
33. In R v. Chopra [2006] EWCA Crim 2133, [2007] 1 Cr App R 16, Hughes LJ said (at para 14):

"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 through one of the gateways in s.101. The same applies vice versa and however many counts there may be."

Hughes LJ emphasised the "sea change" in the law's starting point for the admission of similar fact evidence, viz section 101: see para 12.

34. Section 101 contains the gateways for the admission of evidence of bad character. It provides –

"101.(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if –

…

(d) it is relevant to an important matter in issue between the defendant and the prosecution…

(2) Sections 102 to 106 contain provision supplementing subsection (1).

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

35. There are further provisions in section 103 relating to the gateway in subsection (1)(d) of section 101. For instance –

"103.(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include –

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not accepted that the defendant's case is not untruthful in any respect."

36. Section 107 emphasises the importance of the absence of collusion or innocent contamination of such bad character evidence. It provides –

"107.(1) If on a defendant's trial before a judge and a jury for an offence –

(a) evidence of his bad character has been admitted under any of the paragraphs (c) to (g) of section 101(1), and

(b) the court is satisfied at any time after the close of the case for the prosecution that –

(i) the evidence is contaminated, and

(ii) the contamination is such that, considering the importance of the evidence in the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers there ought to be a retrial, discharge the jury…

(5) For the purpose of this section a person's evidence is contaminated where –

(a) as a result of an agreement or understanding between the person and one or more others, or

(b) as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings,

the evidence is false or misleading in any respect, or is different from what it would otherwise have been."

37. In the present case, there was the clear possibility that the two complainants had been consciously or unconsciously influenced in their complaints or their evidence about them by hearing of, and discussing with one another, the circumstances of their respective incidents. For instance, AB's evidence was that, until she heard about CD's incident, she had put her own experience down to "a mistake as to what happened, that he didn't mean it". She therefore re-evaluated her own experience in her own mind as a result of hearing about CD's experience. That is perfectly natural, but it is also, at least potentially, highly relevant to the jury's view of the weight of the evidence.
38. Section 107 is dealing with the situation where in the course of a trial the judge is satisfied that false or misleading evidence has been given, or even that "evidence is different from what it would otherwise have been". That situation did not arise at trial, but, as will appear below, Ms Kamill was nevertheless concerned that the judge should direct the jury about the ramifications of the prolonged discussions at Mersea Island between the two complainants. What is the position, therefore, where an issue of collusion or innocent contamination arises before the jury, now that common law principles governing the admissibility of evidence of bad character have been abolished?
39. In his Evidence of Bad Character, 2006, Professor J R Spencer QC explains the matter as follows:

"5.32. The basic rule is that the weight (if any) to be given to any piece of evidence is a matter for the jury, not the judge…

5.33 To this rule, there are a number of exceptions where the judge is required or permitted to stop the case because he considers the prosecution evidence to be of poor quality…To these exceptions, the CJA 2003 adds a new one relating to evidence of bad character. Where the case against a defendant consists of a series of incidents, described by a series of witnesses, the court must stop the case if it comes to the conclusion that the witnesses have colluded, or that their evidence is the result of suggestion, to the point where a conviction on the evidence would be unsafe. Section 107…

5.34 This provision comes from the Law Commission, which thought that the existing law did not provide sufficient safeguards against the problem of 'contaminated evidence' in such cases. In R v. H^[1] the House of Lords took the position that the question whether the evidence was 'contaminated' was a matter that affected its weight, and therefore a matter for the jury…The Law Commission, by contrast, thought that where the judge himself was satisfied that there had been 'contamination' of the evidence, he should be required to stop the case.

5.35 Unfortunately the provision is not clearly drafted – and has the potential to cause difficulty and confusion as a result. One of the obscurities is the meaning of 'contaminated': an expression that section 107(5) does little to clarify. The word 'contaminated' and what is now section 107(5) both originate from the Law Commission's Report^[2], at p 223 of which the following explanation is given:

"By virtue of subsection (5), evidence might be 'contaminated' as a result of: deliberate fabrication of allegations resulting from an agreement between witnesses; concoction of an allegation by one person (no conspiracy); collusion between witnesses to make their evidence sound more credible falling short of concoction of allegations; deliberate alteration of evidence or unconscious alteration of evidence, resulting from having become aware of what the evidence of another will be or has been."

From this it seems that evidence can be 'contaminated' by accident, as well as by design…

5.37 By section 107(1)(b), the duty that section 107 imposes on the judge to stop the case only arises where 'the court is satisfied…that the evidence is contaminated.' The court has no duty – and indeed no power – to stop the case merely because it thinks the evidence may be affected by collusion or suggestion. Where the court is satisfied that the evidence is contaminated , then it must consider 'the importance of the evidence to the case against the defendant.' If it concludes that its importance is such that a conviction based wholly or partly on such evidence would be unsafe, it must stop the case.

5.38 Where the issue of suggestion or collusion has been raised, but the judge is not persuaded that the bad character evidence has been contaminated in this way, the case should be left to the jury with an appropriate warning; and, similarly, if the judge takes the view that the contamination is not such as to make a conviction on the evidence unsafe."

40. Prior to the 2003 Act, the standard JSB direction (direction 20.3 of April 2003) where there was cross-admissible evidence arising from similar incidents included the following language:

"1. Ask yourselves: Are you sure that W, X and Y did not put their heads together to make false accusations against the defendant? If you are not sure of that, the evidence of X and Y is of no value, and you must ignore it…

2. You must then ask: Is it reasonably possible that the three persons, independently making the similar accusations which you have heard, could all be either lying or mistaken? If you think that is incredible then you may well be satisfied that W was speaking the truth. In answering this question you must consider two important aspects of the evidence:

(i) The degree of similarity between the accusations. The greater the degree of similarity, the more likely it is that independent witnesses are speaking the truth, for you may think that it would be a remarkable coincidence if they hot upon the same lies or made the same mistakes as to matters of detail. On the other hand, the less the degree of similarity, the less weight should be given to this evidence; and

(ii) Whether W, X and Y may have been consciously or unconsciously influenced in their evidence through hearing of complaints made by others. If you think it is possible that they, or any of them, may have been influenced in making the accusation at all, or in the detail of their evidence, you must take that into account in deciding what weight, if any, you give to their evidence."

41. Miss Kamill's primary submission on this appeal is that the judge failed to address the important content of direction 2(ii) above relating to innocent contamination, and that this made the convictions unsafe.

R v. Chopra

42. In Chopra the defendant was a dentist charged with indecent touching of three teenaged patients. The judge ruled that the evidence of the three patients was cross-admissible provided that collusion or contamination between them could be excluded. The dentist was convicted on the counts relating to two of the patients, but not on the counts relating to the third. The appeal was essentially based not, as here, on the nature of the directions given, but rather on the disputed ruling of cross-admissibility. This court held that in such circumstances the rules of the common law had been replaced by the provisions of the 2003 Act and in particular those relating to the section 101(1)(d) gateway. There was no issue of collusion or contamination, however, – for the patients did not know one another – other than arose from the typical situation where one formal complaint led to the discovery or re-discovery of other complaints.
43. The following extracts from the judgment of this court given by Hughes LJ are relevant to the present appeal. They emphasise the significance of the exclusion of collusion or innocent contamination in a case where the section 101(1)(d) gateway renders evidence from several complainants cross-admissible on several counts.

"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 the 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. I remind you of the submissions and arguments made by Mr Coker…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."…

15. For the purposes of the present case the relevant gateway is s.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…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 s.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 a propensity makes it no more likely that he is guilty of the offence charged. 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…

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-applicability each to support the other."

44. We cite these passages from Chopra because, although as it turned out, it became common ground that the evidence of the two girls was cross-admissible on both counts, and indeed it was accepted by Miss Kamill, as stated above, that that was so: nevertheless, it became important for the judge to warn the jury in adequate terms of the danger of innocent contamination. That was done by the judge's directions in Chopra, even though in that case the chance of collusion or contamination was extremely small.

The summing-up and the judge's directions

45. On the question of cross-admissibility, the judge directed the jury as follows (at pages 12/13 of the transcript of his summing-up):

"Now you know that the allegations in each count are similar and I repeat that you must be careful to consider the evidence in relation to each count separately, but how are you to approach the fact that there are two counts which are similar? Can you use, in any circumstances, one count to assist you on the other?

That is a matter which you should approach with care, but there are circumstances where you can use the evidence on one count to assist you with the other. First of all, you must ask yourselves in this connection whether the girls have colluded. In other words, have they put their heads together and cooked up false allegations against the defendant? If that had happened or might have happened, it would be dangerous to rely upon the evidence of either of the girls.

Before you place reliance on what they say, you must be sure that they have not put their heads together and made up false allegations. In other words, you must be sure that they have not, what the lawyers call, colluded or connived together.

You may think, however, that there is no evidence that they have colluded or connived together to fabricate a false story, false allegations. It was never suggested to them during their evidence that that had happened and, on the contrary, you may think that the evidence points to them not having connived together or colluded together.

The allegations are a year apart in time. The evidence is that [AB] told her boyfriend, Dan, soon after the incident which she said had happened in the bedroom and that [CD] told her friend, Kirsty, a couple of days or so after the incident what she said happened in that door or at that door, just outside the corridor.

There is no evidence that [AB] and [CD] spoke together about these allegations until long after the allegations had both happened and each girl had told at least one other person about them soon after the event.

So you may think that you can be sure (and it is a matter for you), but you may think on the evidence you can be sure that there was no connivance or collusion between these two girls to fabricate a false story."

46. It may be observed that the judge emphasised at length, and repeatedly, that the jury had to consider an issue of collusion or connivance, by which he made clear he meant false fabrication, even though that issue had not been raised or suggested in cross-examination, and even though there was, as the judge reminded the jury, "no evidence" of such collusion or connivance. However, the judge did not go on to direct the jury about the possibility of innocent contamination, even though that alternative is a standard part of the JSB recommended direction, and even though on the evidence there plainly was room for concern about such conscious or unconscious influence.
47. At the end of the summing-up, Miss Kamill asked the judge to address that concern. Inappropriately, she used the word "collusion" to describe it, but she nevertheless made clear that what she was speaking about were the two days of discussions between the two complainants and Kirsty at Mersea Island. The judge immediately took the point, and agreed to remind the jury of the Mersea Island trip. On the jury's return, he told them this (at page 74 of the transcript):

"I directed you about whether the two girls…had spoken together. You will remember the direction in law I gave you about that. They did of course, speak together at some length on Mersea island during that trip. I am sure you remember that and I think I reminded you of the evidence about that, so they were certainly talking together at length then and some persuasion was going on, you remember, as to whether or not they should report it. I have reminded you of the evidence. I am not going through it again, but I remind you of that. All right?"

48. The difficulty about that, Miss Kamill submits, is that, coming right at the end of the summing-up, divorced from the direction about cross-admissibility and collusion, it would have lost all impact. In any event, if the jury had connected these further remarks with the direction about collusion, it would merely have been added in to a direction which had all but removed the whole concept of collusion from the jury.
49. Miss Kamill also complained about a further passage in the summing-up, where the judge spoke about the similarities between the two incidents, albeit the judge used the term "coincidences" to describe such similarities, in order to raise the issue "whether the explanations for such apparent coincidences is that the allegations are true". This passage came immediately after his direction about collusion. He said (at page 14 of the transcript):

"You may think that points of coincidence include the following: both girls…were 17 at the time they made the allegations; both girls thought the defendant was an excellent teacher; both girls thought highly of him as a teacher and as a person. They liked him and they are both making allegations against someone they were fond of.

Both girls flirted with him…Both girls allege incidents that took place after a Leavers' Ball; an occasion which is an emotional occasion, when alcohol has been consumed.

Both girls said that they were very upset afterwards; both girls told another person about what they had said had happened; both girls said they were very reluctant to report the incident.

Did each or either girl misunderstand the defendant's intentions at the time? Did each or either girl make up the allegations? For example, did [AB] make it all up to get back at Dan?"

50. Miss Kamill submitted that in this passage, which had not been foreshadowed in his discussions with counsel, the judge over-emphasised the similarities between the incidents, speaking like an advocate. He made no allowance for any dissimilarities. Moreover, many of the factors relied on as making the incidents similar were not relevantly so: thus it did not go to the significance of similar fact evidence that both girls thought highly of the defendant as a teacher, or that they were upset afterwards, or that they were reluctant to report. Those factors might, outside the consideration of similarities, go independently to support the individual complaints, but not as a matter of cross-admissibility.
51. Finally, the judge directed the jury about propensities. He warned them that they could not use evidence about which they were unsure on one count to support evidence about which they were unsure on another count. It was only if they were sure of guilt on at least one count that they could use that to assist them on the question whether on the other count the defendant was telling the truth or had a tendency or liability to act in a sexually inappropriate manner when in drink. Miss Kamill had no complaint about that direction.

Discussion

52. There was some debate before us as to the nature of the defence advanced on behalf of the appellant at his trial. It was common ground that it was said that each of the two girls was lying, but that they had not colluded to do so. So much was also clear from the summing-up. There was a dispute, however, as to whether it had been suggested that the complaints might have been the product of innocent contamination, a conscious or unconscious reinterpretation of the events in the light of the girls' extended conversations about them. Miss Kamill said that it formed an important part of her final speech, although she accepted that it was not something that she could have very easily cross-examined about. Miss Nash, on the other hand, asserted that the Mersea island discussions were never explored in depth and that innocent contamination was never made an issue in Miss Kamill's final speech. Miss Nash nevertheless accepted that the fact of the two days' discussions between the girls at Mersea Island may well have made a direction about innocent contamination necessary. However, she submitted that the convictions remained safe.
53. Ultimately, we think that this is a short point. It is unfortunate that there is a different recollection between counsel as to the conduct of the trial on the point of innocent contamination. It may be that Miss Kamill thought that she gave the point greater prominence than she did. Moreover, even when reminding the judge about the Mersea Island discussions, Miss Kamill had used the inappropriate term of "collusion", a matter which it is common ground was never an issue at trial. In these circumstances, it is possible that in their discussions with the judge the alternative of innocent contamination had not been given appropriate or any prominence. Nevertheless, we think that the point was plainly there, and there to be seen, and that the nettle needed to be grasped. The judge could not afford to leave it out. It was inherent in the judge's question to the jury (in another context) quoted above – "Did each or either girl misunderstand the defendant's intentions at the time?" In circumstances where AB originally told a story to her boyfriend which went vastly beyond her ultimate complaint, but at the same time originally put down her incident "as a mistake as to what happened" etc (which is not consistent with the account she gave of the incident to her boyfriend), and where she only made a report after learning of CD's complaint and discussing it with CD; where CD never wanted to report her incident and only did so after extensive discussions and pressure from AB; and where AB interpreted CD's experience as revealing new insights as to her own, a matter on which there would obviously have been discussions between the girls: in these circumstances, we think that the standard JSB direction encompassing innocent contamination as well as dishonest collusion should have been clearly explained to the jury, as well as its significance to the facts of the case. The fact that all the parties were more or less drunk or tipsy at the time of the incidents is also relevant, if their acts, intentions and the way in which they were perceived are subsequently to become the subject matter of prolonged discussions.
54. What in fact happened, was that the judge instead repeatedly and at some length directed the jury only on the matter of dishonest collusion, an issue which had not been raised at trial, and which the judge effectively withdrew from the jury at the very same time as he was giving it such emphasis. So, not only was the necessary point not made, but the wrong point was emphasised. The jury would have been likely to think that, having rejected collusion, as they were invited to do, they were entitled to give the cross-admissible evidence full weight on each count. Whereas they should have been warned that they must take the possibilities of conscious or unconscious influence into account when assessing the weight of the complainants' evidence. The subsequent direction that they could use guilt of which they were sure on one count to assist them on the other count on the question of propensities, which in theory might have limited the cross-admissibility of the evidence on the two counts, would have been unlikely to have deterred them from using the evidence collaterally. What otherwise was the point of the judge's directions as to "coincidences"?
55. Although the judge mentioned the evidence about the Mersea Island discussions in the course of his summing-up, and again, as cited above, at its end at the request of Miss Kamill, he never tied that evidence in to the question of innocent contamination.
56. We think that the importance of a proper direction as to the significance of similar fact evidence in respect of counts on an indictment where possibly contaminated evidence is cross-admissible has been emphasised by section 107 of the 2003 Act, even if that section in terms only relates to the judge of the trial himself. Professor Spencer's observations about this section are pertinent (see especially his paras 5.35, 5.37, and 5.38 cited above). The importance of a proper direction has also been emphasised by this court in Chopra.
57. In our judgment, therefore, the judge's failure to warn the jury about the danger of innocent contamination was a material misdirection, which went to the heart of this case. We do not suggest that the judge was wrong not to have stopped the case himself, something that was never suggested, but we do think that in the circumstances the jury's verdicts are as a result of the judge's misdirection themselves unsafe. In this connection, the manner in which the judge dealt with the question of similarities, although it would not in our view by itself have called the verdicts into question, did not assist. As Hanson [2005] EWCA Crim 824, and Chopra have emphasised, sufficient similarity raising the issue of the likelihood or unlikelihood of innocent coincidence is a relevant and sometimes critical test. It is therefore necessary for the judge, if he outlines the similarities to the jury, to give a balanced and accurate account of them, so far as they evidence a propensity which makes it more likely that a defendant has committed an offence.
58. It was for these reasons that we allowed this appeal and quashed the convictions.

Note 1   [1995] 2 AC 596    [Back]

Note 2   Evidence of Bad Character in Criminal Proceedings (Law Com no 273, Cm 5257, October 2001), [2001] EWLC 273      See: Clause 13     [Back]