England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 20 November 2007

1. LORD JUSTICE KEENE: I will ask Irwin J to give the judgment of the court.
2. MR JUSTICE IRWIN: On 6 March 2007, at the Crown Court at Gloucester at a trial in front of HHJ Picton, this appellant was convicted of three counts of gross indecency of a child and three counts of rape of a female under 16, contrary to the 1956 Act. He had earlier pleaded guilty to making an indecent photograph of a child, a count not relevant to this appeal.
3. On 26 March 2007, he was sentenced to 10 years' imprisonment on counts 2, 4 and 8, that is to say, the rape of a female under 16, and three years' imprisonment on counts 1, 3 and 7, that is to say, the gross indecency with a child count, and 18 months' imprisonment on Count 9, the photograph count, all to run concurrently. It is right to say he was acquitted of five further counts of a rape of a female under the age of 16. He appeals against his convictions on all counts, but for the photograph count, by leave of the Single Judge.
4. The facts can be summarised as follows: the appellant met the complainant through his estranged wife in the latter part of 2002 when she was 14 and they formed a kind of relationship. The complainant alleged that this relationship was of a sexual nature which began with kissing, before proceeding to consensual sexual intercourse in February 2003 when she was not yet 15 years of age. She alleged between then and November 2004 there were a series of incidents of sadomasochistic sexual activity between her and the complainant, including penetration of the mouth and vagina without her consent. The complainant turned 16 in March 2004.
5. In early 2004 the complainant was sent by her mother to live with her aunt and uncle in Scotland, where she was to stay until at least her 16th birthday. While she was there her aunt, Isabel Johncock, read extracts from the complainant's personal diary which contained references to her relationship with the appellant.
6. The account given by the complainant was denied by the appellant. It was accept that the complainant did visit him at his flat and that they had consensual sexual intercourse together in August 2006 after her 16th birthday. They saw each other again in 2005, but without sexual activity. The complainant first contacted the police with these allegations in October 2005 and the appellant was subsequently arrested.
7. The prosecution case on counts 1, 3 and 7 was that the appellant made the complainant engage in oral sex with him whilst she was below 16 years of age and counts 2, 4 and 8 was that he forcibly penetrated the complainant's vagina without consent.
8. The defence case was straightforward. It was that there was no sexual activity with the complainant before her 16th birthday.
9. The complainant gave evidence in the trial. The detail of her evidence is not necessary to recite. She gave evidence which supported the allegations in counts 1, 2, 3, 4,7 and 8, which were appealed, and specifically gave evidence of sexual activity before her 16th birthday. We accept all these counts relate to that period. It will be clear therefore that the evidence of the complainant incorporated acts of both consensual sexual intercourse, although she was too young to give proper consent, and matters which took place against her will.
10. When cross-examined she had put to her properly a number of alleged and factual inconsistencies between her statements to the police and her evidence in court. She confirmed that her evidence in court was correct, although of course that was in issue, as was her credibility. She had had a troubled background, which is why she had been sent to her aunt in Scotland and why the episode of the diary came about, which forms the basis of this appeal. It is necessary to consider this in a little more detail.
11. When he gave his ruling on the matter, the learned judge summarised the facts as follows:

"Mrs Johncock says this. Having found the diary when [F] was out, she says 'I cannot remember exactly what I read and I didn't read every page. She had written about Pete, that she would do anything to please him, even though some stuff had hurt. He had made her feel good. She didn't like clothes pegs being used but would do anything to keep him. He had been with someone else who was young, but although he had left this girl when pregnant that wouldn't happen to [F] if she pleased him enough. There was also mention of her feelings towards her family and us [that is to say the aunt and uncle] for keeping her from her friends; none of it complimentary. She felt that when she was 16 we wouldn't be able to keep her and she would return to her old life. Some entries describe what he had said when phoning her while she was with us. I can't remember exactly what, but it seems she was confused about his feelings for her."

She then went on to say:

"I did confront her about what was in her diary. We discussed if someone does things that hurt you physically, it can't be love. She was angry that I had read her diary, and after that she burned it and other letters."

That is the end of the quotation from the Judge's ruling.

12. The appellant advances the complaint about the admission of this evidence on three grounds. Firstly, that the judge should not have admitted the evidence of the content of the complainant's diary as recalled by Isabel Johncock at all. Secondly, that even if admissible in principle, that evidence should have been excluded as being unfair, pursuant to section 78 of the Police and Criminal Evidence Act 1978. Thirdly, that once admitted, and if admitted, the summing-up did not deal with how the jury should approach it fairly or adequately.
13. We address those points in turn. The Crown submitted to the judge, and in writing to us, that this evidence is not hearsay evidence, but direct evidence. They rely on the provisions of section 115 of the Criminal Justice Act 2003 and on the analysis of this court in the case of N [2006] EWCA Crim 3309. Section 115 sets out, in effect, a definition of evidence capable of being hearsay evidence, to which the provisions of Part 2, Chapter 2 of the 2003 Act applies. The section reads:

"(1) In this Chapter references to a statement or to a matter stated are to be read as follows.

(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been-

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

This section was interpreted in N, a case which also concerned a diary made out by a young complainant in a case of underage sexual activity. In that case the complainant's diary was still extant and extracts were introduced into evidence as the basis for suggesting that they were inconsistent with the complainant's evidence. The Crown then in that case sought to rely on the diary extracts as evidence of the truth of their content, pursuant to section 120 of the Act, and the judge ruled in favour of the Crown.

14. When the matter was heard on appeal, McCombe J, giving the judgment of the court dealt with the arguments on appeal as follows, beginning at paragraph 15:

"The argument adduced by the Appellant is straightforward. It is this. The diary was compiled on the basis that no one but L would see it. [L being the complainant] Therefore, the purpose of the statements were not 'to cause another person to believe the matter' contained in it within the meaning of s 115(3(a) of the Act. On the contrary, its purpose was L's use alone."

The judge went on to say:

"[16] To our mind it would be a very strange state of the law if a Defendant could introduce a diary such as this on the basis that it is an inconsistent statement, but yet it remained outside the provisions made by Ch 2 of the Act for the regulation of the admission of statements other than those made in court. Nevertheless, if that is the conclusion which the statute compels, we must give effect to it. In our judgment the fallacy in this argument is the underlying assumption that if the diary is not admissible hearsay, it cannot be admissible at all. The rule against hearsay is, was and always has been an exclusionary rule. That is to say, it operates to render inadmissible what would otherwise be relevant and thus admissible. The rationale has always been that assertions out of court may be false either because they are untruthful or because innocently inaccurate, and, unlike sworn testimony, those possibilities cannot be rectified by being tested in examination and cross-examination."

McCombe J then continues at paragraph 21 as follows:

"If, as the Appellant contends, the diary was never intended to be read by anyone, it was not hearsay because it did not fall within s 115. But that does not mean it is not admissible. On the contrary, if relevant it is admissible. It is real or direct evidence outside the hearsay rule. The statutory restrictions upon the admissibility of hearsay have no occasion to apply to an action by the Complainant which never had as its purpose, principal or supplementary, that any other person should believe or act upon it."

15. Against that legal background we return to the facts of this appeal. The unchallenged facts here are that the complainant's diary was seen by her aunt, that her aunt raised the contents with her, that she was angry with her aunt and then destroyed the diary. Those facts seem to us to point directly to the conclusion that the diary was meant to be secret and was not written for others. The judge made this point in the course of his summing-up to the jury. He said this:

"This is evidence of some potential importance if you accept that [F] wrote the diary in the terms that she and her aunt describe that she did. It would seem that she did so never intending that anyone should read it and a very long time before she made any complaint to the police about that which she says the defendant did to her."

16. She described the contents of the diary in this case, at page 21 of the summing-up as follows:

"[F] said that in the diary she had recorded some of what had gone on between herself and the defendant and the feelings towards him. Mrs Johncock gave evidence to you about what she read in the diary and the nature of the advice she gave to [F] as a result."

At letter E:

"And Mrs Johncock said this, 'There was an obvious relationship that had been going on between herself and Pete. Some of it I found quite disturbing. I cannot remember the exact words. There were things about things that had happened, that had happened to her that had hurt her physically. There was something about clothes pegs being used and things that hurt, that she had not done it much so if she kept on it would get easier. She indicated that she would do anything to keep him."

17. Thus at trial the complainant did say, at least in general terms, that the diary entries had been true and it was suggested to her that they were untrue. What was not explored with her, and this is, in our judgment, of significance, was the question of whether the diary was written, even potentially, for reading by anyone else. Counsel has been frank in telling us that he did not begin that exploration or make that suggestion.
18. It is suggested now by the appellant that this diary might have been intended to be read by a fellow teenager, to attract sympathy or admiration, or to excite interest. It appears to us that runs contrary to the evidence before the court and was not explored as a proposition. Thus it appears to us that this diary clearly fulfils the test on the evidence as presupposed by the terms of section 115, or as applied in N. This diary was not a hearsay statement. It was not written for others. There is no evidence to run counter to that. Therefore, it forms direct evidence of the contents of the test.
19. It follows from that conclusion that an account of those contents coming from Mrs Johncock cannot be double hearsay as suggested by the appellant. Indeed, it is not hearsay at all. If Mrs Johncock had described what the complainant said to her, that would be single hearsay because the complainant would be making a representation of fact to her within the meaning of section 115. But the very point of the decision in N and the terms of section 115, namely that the diary entries are not representations but direct evidence, is that Mrs Johncock's account of that direct evidence is to be thought of as parallel to observing someone fleeing, or lashing out in reaction, or being in an embrace with someone, or blushing at a significant moment: an account of direct evidence by an observer explaining the reactions of the observed person. Properly analysed this evidence is neither single nor double hearsay and it is admissible.
20. The next point taken is that it should have been excluded under section 78. As counsel has frankly acknowledged in the course of the hearing, it is rare that the court will wish to interfere with the exercise of discretion under section 78 by the trial judge. In essence, three points are advanced. Firstly, that the account of the text was imprecise and therefore unreliable, and that it was difficult to test in cross-examination because inconsistencies within the text itself could not be explored, and that it was evidence of potential importance.
21. In our judgment there is nothing in any of these arguments. The evidence was imprecise, but its impact was general. It was that there had been inappropriate sexual activity before the complainant's 16th birthday. It could not be relied on by the Crown to co-operate detail of allegations precisely because the diary was absent and the detailed text was not available, but that cut two ways. It was perfectly possible, in our judgment, to test the evidence both of Mrs Johncock and of the complainant as to what they were saying about the diary. The evidence was general. Their evidence could be tested as to that general import of the content of the diary.
22. Of course it was of potential importance, but so is much other evidence which has to deal with remembering events from a considerable period before, particularly in cases of this nature. The jury could perfectly well assess both the complainant and Mrs Johncock as to their accuracy and veracity. In our judgment there was nothing to mean that the learned judge should have excluded this evidence under section 78.
23. The third ground of complaint is that the summing-up did not deal with this matter properly to the jury. In short, this has not been pressed by counsel in the course of the hearing and in our judgment there is nothing in the complaint. At page 23, letters G to D the learned judge dealt with it perfectly properly, warning the jury that Mrs Johncock had to try and recall things she had read before she came to make her statement and that this all dealt with events some considerable period before the trial. In our judgment that was a perfectly adequate approach to dealing with this evidence before the jury.
24. For all these reasons, this appeal is dismissed. Thank you very much.