England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16th October 2007

1. SIR IGOR JUDGE: This is a profoundly troublesome case, referred to the Court by the Criminal Cases Review Commission, on fresh evidence which demonstrates that the appellant's convictions are unsafe.
2. On 15th December 2000 in the Crown Court at Lewes, before His Honour Judge Brown and a jury, this appellant was convicted of four counts of sexual crime with a girl, KJ, and four further cases on similar counts with her sister, LJ. There were two counts of rape and two counts of indecent assault in relation to each sister. He was sentenced to a total of 10 years' imprisonment: 10 years for each offence of rape; 3 years for each offence of indecent assault, all the sentences to run concurrently. An appropriate order was made for registration under the 1997 Sex Offenders Act.
3. KJ was born in December 1983, LJ was born in April 1985. As children both were subject to moderate learning disabilities. We do not know their precise condition now, and in particular we have very little information about the state of mind and ability of KJ. The appellant is their uncle, the brother of their father.
4. The girls' parents were involved in a very acrimonious divorce in the early 1990s. Numerous allegations and cross allegations were made about the way one said that the other had ill-treated the children. One allegation made by the mother was that the appellant had made threats to break her legs and kill her then partner if she made further complaints to the police or the social services about his brother's care of the children, or if she sought access to them.
5. The allegations against the appellant emerged in March 2000. KJ told one of her teachers that the appellant had sexually assaulted her. Accordingly both girls were interviewed by the police at their foster home. They disclosed a history of alleged rape and indecent assault. KJ alleged that the appellant had repeatedly indecently assaulted her at her grandmother's house when she was about 12 years old until about Christmas 1999. Those were specimen counts 1 and 3 in the indictment. She also alleged that he had regularly raped her during the same period. Those were specimen counts 2 and 4, and that these incidents also happened when she was visiting her grandmother's house every Saturday when her grandmother, her father and her other brothers and sisters were absent.
6. She described how the incidents happened in some detail. This judgment will not be enriched by setting them out. She said she had not told her father about the incidents because he would not have believed her and did not go out shopping with the others because she was not allowed to.
7. When counsel for the defendant, as he then was, cross-examined KJ, he was able to deploy material obtained from the social services' records of the West Sussex County Council. This material showed, among other things, that KJ had made a number of allegations against other people. It was suggested to her that she had made complaints about her grandmother hitting her with an iron bar in 1999. She admitted that she had lied. It was suggested that she had lied about receiving numerous harassing telephone calls from a boy at school. Again, she admitted that she had lied and she also admitted lying about the behaviour of another boy at school towards her, but said that she did not remember what she had alleged he had done - in fact it was an allegation of indecent assault. She admitted to lying when she wanted to move away from either parent by alleging that someone had done something to her, but when all these lies were admitted, she robustly denied that she had lied about the defendant and what she alleged he had done to her. She also denied that she and her sister had invented stories about him.
8. There was medical evidence before the court. One of it consisted of a report in January 1992, following an allegation made against her mother's then boyfriend of sexual assault. The medical report suggested that it was most unlikely that any penetration had taken place within the preceding 2 weeks. The second report followed an examination in March 2000 and the report confirmed that she had had repeated sexual intercourse with someone prior to that examination.
9. The allegations made by her sister, LJ, were very similar in nature. Again, there is no need to repeat how the incidents were described. LJ said that she did not tell anyone because she was scared that no one would believe her. She said that she had reported these incidents now because KJ had told her that the appellant had been having sexual intercourse with her, so she told her sister about the things that he had done to her. The next person she told was her social worker who had come to the home to investigate KJ's allegations.
10. In cross-examination LJ confirmed that she wanted to stay with her sister. She was aware that her sister wanted to leave their father's house. She denied that her sister had admitted that she had lied about the allegations she made against their grandmother and their brother. She also denied that KJ had told her what she should say when she was interviewed or that she and KJ had made up the allegations so that they could leave home together.
11. Medical evidence in her case was also before the court. The first report, from 1992, found beyond doubt that there had never been any penetration of her vagina. A report in March 2000 confirmed that LJ had had repeated sexual intercourse at a time before her examination.
12. The defendant gave evidence. He confirmed what he had said in interview to the police. He strongly and adamantly denied any offence of indecency of any kind with either girl. The essence of his defence was that the evidence given against him represented a complete fabrication. In the context, again, it is unnecessary for us to set out his detailed denial of these matters.
13. No criticism has been directed or ever was directed at the way in which the judge summed the case up to the jury. Appropriate directions of law were given and the issues which arose from the evidence were fairly left to the jury for the jury to consider and decide. The jury convicted the appellant. No appeal was brought because at the time, one assumes, no grounds were considered reasonably arguable by counsel who then appeared for the appellant, and no doubt the appellant accepted that advice.
14. In 2002 the Commission was invited to consider the safety of the convictions on the basis that KJ had made a false allegation of rape against her brother in 2001, that is after this appellant had started serving his sentence. At that stage, however, all that had happened was that it had been decided that a prosecution should not be pursued. There was no evidence to suggest that this allegation was a false allegation, and so, rightly, the Commission decided that there was no basis on which to refer the case. However, in late 2006 the appellant again invited the Commission to conduct a review of his convictions, on the basis that KJ had been cautioned for wasting police time following allegations of sexual abuse that she had made against her stepfather.
15. As a result of that material coming into the possession of the Commission, a thoroughly detailed and meticulous investigation was made. It produced some alarming conclusions. We mean no discourtesy to the valuable work done by the Commission in this case if we do not set out in narrative form how they proceeded with their investigation. It is sufficient to say that it involved a considerable effort. We shall reflect on the results.
16. It will be remembered that KJ admitted at trial that she had told a number of lies and made false allegations. However, events after the trial demonstrated that she had a proved tendency to make false allegations that she was a victim of sexual crime. In 2001 she made a complaint that from the age of 12, until she left the family home at the age of 16, that is to say before this appellant was convicted and indeed before a complaint was made by her against this appellant, her brother had been physically abusive towards her and raped her when she was alone in the house with him. Her brother was interviewed. He denied the allegations. She later told the officers investigating the complaint that she did not want to give evidence at court but she did not want either to withdraw the complaint. So this complaint was filed as "undetected". Then, in December 2002 she made a complaint of rape against a customer at her place of work. This allegation was that he had offered to walk her home but while they were in an alleyway he had fondled her breasts and then raped her. He was interviewed. He asserted that they had had sexual intercourse; it was consensual; he had used condoms and, following a police investigation, those condoms were retrieved by the police from his bin. They were submitted for forensic examination but owing to a delay and some matters which we do not know about, a result was never achieved. The investigating officer decided not to pursue this enquiry on the basis that: "it could only discredit the victim". So the matter was not pursued by the police because there was no corroborating evidence. It is fair to say, however, that the interviewing officer and KJ's foster mother both doubted the truthfulness of her complaint.
17. The next matter arose in April 2004. KJ made an allegation of rape against her then boyfriend. They were living in housing designed for people with different levels of learning difficulties and they were warded. They entered into a sexual relationship. They became engaged on 14th February 2004. The alleged rape was reported to a support worker of the residents a week after it was said to have happened. Advice was sought from the Crown Prosecution Service. They advised against proceeding owing to "doubt about the reliability of [KJ] as a witness", her mental age which was 13 and the absence of any physical evidence.
18. The next matter arose in June 2006. KJ made a complaint against her stepfather that he had raped her on about 20 occasions between April and June 2006. The abuse ended when she left her stepfather's home. She said that the rapes and other forms of sexual assault occurred while she was alone with him in the house. The allegations were made in great and no doubt convincing detail. Indeed the officers found her to be, they thought, a convincing complainant. Naturally her stepfather was interviewed. He was able to provide what looks to have been an unshakeable alibi for two of the occasions when he was supposed to have raped KJ. The alibies were verified. Following the investigation the facts were put to KJ. She admitted that she had fabricated the allegations against him because she did not like him. As a result she received a police caution for wasting police time.
19. Even after these convictions were referred to the Court by the Commission, a further problem arose. In June 2007 KJ made a complaint of rape against a former boyfriend. According to a letter we have received from the police station at Horsham, dated 3rd September 2007, the matter was investigated and later that same day KJ was seen by officers. A number of inconsistencies in her original account were put to her. She, according to this letter, accepted that her allegation had been a false allegation. She could offer no reason why she had made it up.
20. We can now stand back and look at the issue of KJ's credibility. A moment's glance at the facts narrated in this judgment would demonstrate that this new material would severely undermine any confidence that any jury could have had in KJ's evidence. With the knowledge we have now, and without any other supporting evidence, the credibility of this witness is damaged beyond repair. The appellant's convictions of rape and indecent assault on her are flawed: they must be quashed.
21. We must consider the impact of this new evidence on the way in which the evidence of LJ was viewed by the jury. As we have indicated, she denied lying about any of the allegations against the appellant, although she admitted that, above all else, she wanted to stay with KJ. It is also clear from the papers that she only made the allegations she did after she was aware of the allegations made by KJ.
22. The judge specifically directed the jury about the issue of the allegations made by both sisters in this way:

"The fact that there are allegations from two girls does not increase the weight that you can attach to the evidence of either girl. They do not, as it were support, or add support to each other. The reason for that is this, that they are not independent of each other. In other words, they had the opportunity, if they chose to take it, of putting their heads together and making up a story."

23. In our judgment, the evidence that we now have would have had a direct impact not only on the jury's judgment of the allegations made by KJ, but also those made by LJ, simply because of their close relationship and the desire she had expressed to stay with KJ really ahead of any other consideration. There was also a telling similarity in the accounts which they had given.
24. Basing ourselves on the circumstances of this particular case, we have concluded that the convictions in relation to LJ cannot safely be upheld: they too will be quashed.
25. We must express our gratitude to the Commission, which in this case has performed precisely the function for which it was created and has investigated a difficult problem in close detail and produced an extremely helpful analysis of all the relevant issues.
26. There is a final general observation. We are not implying criticism of the particular decision taken in this case, that following the discovery of the falsehood of the allegations made by KJ against her stepfather, all that happened was that she was given a police caution. We emphasise, we do not know the reasons behind that decision, and there may have been some justification for it. So we are commenting generally. Rape is a repulsive crime. It requires substantial punishment. No one doubts that the victims of rape should be treated with every possible consideration by the criminal justice system. On the other hand, just because rape is a repulsive crime, a false allegation can have dreadful consequences, obviously and immediately for an innocent man who has not perpetrated the crime. But also, and this is not to be overlooked, because every occasion of a proved false allegation has an insidious effect in public confidence in the truth of genuine complaints, sometimes allowing doubt to creep in where none should in truth exist. There cannot be very many cases, although this may be one of them, where the offence of attempting to pervert the course justice, on the basis of a false allegation of rape, certainly one which is set out in detailed formal form statement or pursued to the door of the court, should not be prosecuted for what it is. It is only in the rarest of cases that a police caution sufficiently addresses either the criminality of a false allegation of serious sexual crime or (and this is no less important) the possibility of the need for appropriate treatment which will address the problems which have led the complainant to fabricate the allegations she has made. Those last observations, of course, do not impinge on the safety of these convictions. These convictions are demonstrably unsafe and will be quashed.