England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Blackfriars Crown Court
His Honour Judge Blacksell QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 November 2008

Lord Justice Moses :

Introduction

1. This is an appeal against conviction for a series of sexual offences allegedly committed by this appellant between 1978 and 1985 against three children coming from different families with whom the appellant was living at the time. The issue of significance in the appeal concerns the approach of the judge once one of the complainants collapsed, unable to complete her evidence and thus depriving the defence of a proper opportunity to cross-examine her.
2. The appeal is against twelve convictions on one ground with leave of the single judge; this relates to the adequacy of his direction to the jury once the witness was unable to proceed. The single judge referred to this court a further ground relating to the adequacy of the judge's directions concerning the defence case. He refused leave to challenge the judge's refusal to discharge the jury once the witness was unable to continue. This ground, which is closely allied to the main ground of the appeal, was renewed. A further ground was not pursued.

Facts

3. The appellant lived with LF between 1978 and 1985. She had two children, by a previous marriage, one of whom was L. The appellant was alleged to have indecently assaulted L (Counts 1 and 2), incited her to gross indecency (Count 3) and raped her (Counts 4,5,7,8 and 9) from the age of 7 to 13. There was no evidence independent of L to support her allegations.
4. During a period when the appellant's father, now deceased, was staying with the family she alleged also that he indecently touched her and that the appellant had made it clear that he knew about it.
5. The relationship between LF and the appellant was alleged to have been violent. She alleged that on an occasion between January 1980 and December 1983 he had falsely imprisoned her in a loft for three days (Count 3). The relationship came to an end when, on 17 March 1985, he was alleged to have assaulted her by pushing a plastic cup into her face and stomach (Count 11) and, on the same day, attempted to bugger her (Count 12).
6. The appellant subsequently married SO. They had one son, C, born on 4 January 1987. SO had a daughter by a previous marriage, M born on 24 June 1974. M met the appellant when he started to live with her mother SO. In October 1988 SO gave birth to a daughter LL, the appellant's child, and sister to C. M alleged that when she was about 12 the appellant had indecently assaulted her (Count 6). The Judge directed that the appellant should be acquitted unless the jury were sure that the offence had happened when she was under 13. The jury acquitted. The appellant and SO divorced. SO married another man but died in 1999. C and LL went to live with their father, the appellant. LL alleged that the appellant would become drunk and violent. He would kiss her on the lips. She went to Spain with him where, she said, he abused her emotionally, sexually and physically. The sexual abuse started when she was 14. Subsequently, he raped her (Counts 7-9). She left home when she was just 17, on 18 November 2005.
7. The chronology in relation to the complaints is important and was relied upon by the defence because it showed that the trigger for the revelation of the allegations was LF.
8. Between 1989 and 1990 L was living with AY. After about 6 months, when there were difficulties in the relationship, the couple were watching an episode of Eastenders relating to the sexual abuse of a child. According to the evidence-in-chief of L and the evidence of AY, her partner at the time, this prompted an allegation by L that she had been abused as a child by the appellant. She repeated that allegation to a friend, CK, in 1990. AY made no further mention of the allegation until, when in drink, he passed on the complaint to AM, the son of LF and the appellant. AM made no mention of this until July 2006 when he told BF, L's brother and son of LF during the marriage which preceded LF's relationship with the appellant.
9. BF told his mother. LF telephoned her daughter L who was at that time in Spain. L denied that the appellant had sexually abused her. But when she returned from Spain her mother confronted her again with the allegation. L then told her that the allegation was true. LF then spoke to M and to LM. She first informed the police on 6 August 2006, telling them of L's allegations. She told them of her belief that LM and M had also been abused and on 14 August 2006 told them that she had spoken to both LM and M.
10. The defendant was interviewed on 21 December 2006. He proffered a prepared statement denying the allegations but did not answer questions. He gave evidence denying the allegations. He accepted that some of the arguments with LF were violent but described occasions when she had herself treated him with violence. He called a number of witnesses to establish that when they lived with him he was loving and was not violent. In particular, two of the appellant's nieces, the children of his sister, gave evidence as to the absence of violence. C, the appellant's son from his relationship with SO, denied that the appellant had been violent. Two of his sisters and a number of other friends and relations gave evidence to similar effect. Where the details of the evidence are relevant to grounds of appeal advanced on behalf of this appellant we shall deal with their particularity later.

The Collapse of L

11. L gave evidence-in-chief over a period of one day. The following day a juror was ill and L's evidence continued the day after. But after a short passage of cross-examination the witness appeared to sustain a panic attack and could not continue. We should make it clear that the collapse could not in any way be attributed to the conduct of the defence. Mrs May, appearing both before us and on behalf of the appellant at trial, argued the case with conspicuous clarity and fairness. There has never been any suggestion that it was her manner of cross-examination which had contributed to the collapse.
12. The Judge decided that the witness could not continue. That decision is not criticised. But his refusal to discharge the jury is the subject matter of a renewed application for permission to appeal. The Judge accepted that the evidence of L was "an integral part of the prosecution case". He noted that it was also an essential aspect of the defence that the three complainants had concocted the allegations under the orchestration of LF, her mother. He noted that there was evidence, independent of that witness, which seemed to contradict what she had said. The Judge referred to authorities as to the approach a trial judge should adopt in what was said to be similar circumstances and concluded that the jury could properly consider her evidence, subject to what he described as "very careful warnings" and "proper directions".
13. There will, undoubtedly, be cases where the fact that a defence is deprived of the opportunity to cross-examine a witness will be fatal to the fairness of the trial and a breach of a defendant's rights, enshrined in Article 6 of the European Convention on Human Rights. In R v Lawless and Basford [1994] 98 Cr.App.R. 342 a co-accused pleaded guilty and gave evidence, as an accomplice, against two co-defendants. Before any cross-examination on behalf of either, the accomplice suffered a heart attack and was unable to complete his evidence or to be cross-examined. The summing up was criticised for its inadequate direction as to corroboration and the suggestion by the trial judge that the jury should err on the side of caution and assume that the accomplice's evidence would be weakened or destroyed. If that was his view, the Court of Appeal pointed out, the jury should have been directed to ignore his evidence altogether. But the essential basis upon which the appeal was allowed was that it was doubtful whether any direction, however strongly expressed, could have overcome the only damning evidence, untested by cross-examination, of the accomplice (page 351).
14. The Court of Appeal contrasted Lawless and Basford with R v Stretton and McCallion [1988] 86 Cr.App.R. 7 in which an epileptic and mentally handicapped woman had been unable to continue with her evidence after a substantial period of cross-examination as to the essential issue of consent. In that trial, HH Judge Gower QC allowed the trial to continue but invited the jury to acquit if they were not sure that the cross-examination had sufficiently probed and tested the complainant so as to enable the jury to judge fairly her credibility.
15. The essential principle is that a defendant must be given an adequate and proper opportunity to challenge and contest the evidence on which the allegation and conviction are based. In Lawless and Basford the defence were deprived of that opportunity because the only means by which they could challenge the accomplice's evidence were cross-examination and their own evidence of denial. By way of contrast, in Stratton and McCallion, the defendants did have a fair opportunity to challenge the complainant's evidence and the trial remained fair, despite the fact that the cross-examination was curtailed when considered in the context of the directions given to the jury.
16. At the stage when the Judge ruled that he would not discharge the jury he had to consider whether a fair trial was possible. He ruled that it was, provided that clear warnings were given. It was plain that he was influenced by the prospect of further delay which would aggravate the strain which witnesses had already suffered. Further, he remarked that L's statement or transcript of her evidence could have been read to the jury under the Criminal Justice Act 2003.
17. We comment that whilst, of course, a judge must take into account the strain on witnesses, particularly in relation to cases where sexual offences are alleged, and the impact of delay on those witnesses and on the criminal justice system, such considerations can never trump the requirement to ensure a fair trial. Further, it does not seem to us that the power to permit a statement to be read pursuant to S 114 of the 2003 Act is a relevant factor in deciding whether to discharge a jury in the circumstances which were raised in this case. The judge had to consider two distinct effects of L's inability to continue. Firstly, her evidence-in-chief had been emotive and emotional. Her collapse was bound to have an impact on the jury which was potentially detrimental to the defence. The jury was given no reason as to why she could not continue but they could see her distress with their own eyes. Moreover they had heard the evidence live. Such circumstances are wholly distinct from the read evidence of an unseen witness, the impact of which is bound to be diminished by the mere fact of the jury hearing the evidence read. The Judge was under an obligation to diminish the emotional impact of her evidence, exacerbated as it was by her collapse.
18. However, although, in our view, the Judge was incorrect in seeking to draw an analogy with the circumstances of a statement being read it does not follow that his conclusion was incorrect. The Judge was in the best position to assess whether a fair trial was possible despite the fact that the defence was deprived of the opportunity of cross-examination. This court, therefore, should not interfere with that judgment unless it was outwith the range of reasonable conclusion as to the issue of discharge.
19. Although we have reached the conclusion that the Judge was incorrect in drawing an analogy with the situation where a statement is read there remains the question as to whether his conclusion was outwith the range of reasonable conclusion. This seems to us to turn on the question as to whether he was right to rely upon the ability of the defence to challenge L's evidence and to contradict it without the opportunity properly to cross-examine her. We do not think that we should dispose of that issue without turning to the next ground (which was Ground 3) in respect of which the Judge has given permission, namely as to the adequacy of the Judge's directions to the jury.

The Directions to the Jury Concerning the Evidence of L

20. The Judge said during the course of giving his reasons for refusing to discharge the jury:-

"A jury will require very careful warnings in this case and I have carefully considered whether the matters could be adequately dealt with such directions (sic), and I have come to the conclusions that the interests of justice, which I have very much in mind, can be adequately dealt with in the interests of this case for both sides."

Later he concluded that a jury could quite properly consider the defendant's case "appropriately with proper directions".

21. Early in the summing up, the Judge considered whether there was any motive for the allegations made. The defendant had suggested that witnesses were seeking compensation and the judge commented that that was not a suggestion put to any of the witnesses. In commenting on the failure to make that allegation in cross-examination he continued:-

"Of course that has to be tempered by the fact that we shall come to in due course. You are asked to remember that in the case of L the cross-examination was truncated and was terminated."

Later in his summing up he referred to the fact that L had been cross-examined but said that the jury were to remember that it was not for very long. He then referred to a number of points made by Mrs May for the defence which contradicted L's evidence.

22. It is plain that none of the directions which the judge envisaged it was necessary to make were in fact given by him to the jury when it came to the summing up.
23. The Judge never directed that they should not speculate as to the reason for L's collapse, nor did he direct them that they were not to use the fact of her collapse in a manner adverse to the defendant. He should have given those warnings at the time and repeated them in the summing up. He commented that there had been what he described as "a huge amount of emotion in this case". He warned them not to be influenced by that emotion. But he never diffused the impact the collapse of L must have had on the jury.
24. Nor did he give any appropriate warning as to how they should view L's evidence in the circumstance that the defence had been deprived of the opportunity to cross-examine her. The Judge ought to have drawn a clear contrast between her evidence and that of the other witnesses where the defence had been unable to test the evidence of cross-examination. It is, of course, important that this court is not too prescriptive as to the terms in which a jury in such circumstances is directed. The precise terms to be adopted will be a matter for the trial judge dictated by the particular circumstances of that witness in the context of the case as a whole. But as a bare minimum the jury should have been warned to be cautious about acting on the basis of her evidence when they have been deprived of the opportunity of seeing the consequences, both to the witness herself, and to her evidence, of the test of rigorous cross-examination. In Stretton and McCallion the Court of Appeal approved his Honour Judge Gower QC's clearest possible warning in the following terms:-

"If you feel that [defence counsel] was deprived of the opportunity, and that means that his clients were, of properly testing and probing her evidence, why then my advice to you would be that you should acquit both these defendants because unless you feel sure that you as the jury are in a position to make a proper assessment as to her credibility, this case does not get off the ground and I am sure you realise that."

We do not suggest that the precise terms of that direction is of universal application. But the virtue of a direction with a similar thrust is that it warns the jury that it should not act upon evidence which the defence has been unable properly to challenge. But we add this word of caution. In many cases it ought to be clear to the judge whether the defence had been deprived of a fair opportunity to challenge a witness's evidence. If the judge comes to the conclusion that the witness has been deprived of that opportunity then the jury should either be directed to ignore that evidence or if it is crucial to the case, discharged. Save in cases similar to that of Stretton and McCallion where the cross-examination was almost complete, the likely conclusion will be that which was reached in Lawless and Basford namely, that the judge should have discharged the jury. After all, the jury will not be in as good a position as the judge properly to assess what difference cross-examination would make: the very problem with the direction in Lawless and Basford. Unlike a judge, experienced at seeing the effect of cross-examination, a jury may well be unaware of the utility of observing a witness's reaction to challenges advanced by way of cross-examination.

25. No proper warning of any kind was given by the Judge in the instant case although he had clearly envisaged the necessity for such a warning. However, the question we have to decide is the sole question permitted to us within the confines of our jurisdiction. The question for this court is whether it follows, by reason of the failure of the Judge to give proper directions, that the verdicts are unsafe. Our conclusion as to the safety of the verdicts must be reached in the context of further criticisms advanced as to the summing up. There were a number of criticisms focussed on the failure of the Judge to remind the jury of essential features of the defence. We mention three aspects of these alleged failures, which formed the subject matter of a separate ground of appeal in respect of which permission was refused.
26. Firstly, the prosecution had made an admission, which was before the jury, that between 2002 and 2003 the defendant had sought treatment for penile erectile dysfunction for which he had been prescribed medication by way of injection in 2003. There had, apparently, been some questioning on behalf of the prosecution as to whether he had been able to achieve an erection in the morning. The judge said:-

"It has not been suggested on one occasion by the defendant that he actually was not able to obtain an erection. I think his evidence, again counsel correct me if I am wrong, was that he had some trouble in the mornings is what he said in evidence."

No counsel corrected the Judge and, accordingly, we cannot think that the way in which the Judge directed the jury has any significance. The jury had, after all, the admission in writing when it considered its verdicts.

27. Secondly, it was suggested that the Judge had unfairly diminished the strength of the defence's reliance on the trigger for the complaint by LL. The defence contended that it could establish that no complaint was made by LL until after she had been contacted by LF. LL had written a letter on her computer to the appellant accusing him of physical and emotional abuse without mention of sexual abuse. That letter was found by her aunt CJ. In consequence she was referred by her aunt, via her general practitioner, to a social work therapist. The statement from the therapist, Eileen Gregson, read to the jury, showed that at the first meeting she made no reference to any sexual abuse. The first mention was on 27 September 2006. LL was asked whether the complaint as to sexual abuse followed phone calls from LF. She denied that she had received details of the allegations that L was making. But the evidence of CJ suggested that LL's complaints as to sexual abuse came only after a number of telephone calls from LF to LL. The Judge invited the jury to compare the evidence of CJ, the aunt, with that of LL.
28. By reference to that evidence and the admissions as to when LF first reported L's complaints and her suspicions as to M and LL to the police, followed by LF's information to the police that she had made contact with LL and M on 14 August, suggested, so the defence argued, that allegations of sexual abuse came after LF's telephone calls. The Judge commented that the evidence was not as certain as that, but again invited counsel to correct him if that was wrong. There is no justifiable criticism. If the evidence was as clear as the defence suggest then it was open to counsel to intervene and to the jury to act upon it.
29. The third criticism relates to evidence given by two witnesses called by the defence, TL and LO, who gave evidence that LL had told them long before she made complaints of sexual abuse against the defendant that she had lost her virginity to a boyfriend when she was 14. Her evidence was that she had lost her virginity to the appellant. The Judge is criticised for diminishing the effect of that point by saying that even if she had told TL that she had lost her virginity to a named boyfriend:-

"It does not necessarily mean it is true. Some people do say things which are not necessarily true."

This comment does seek to diminish the effect of the defence argument. But in the context of the case as a whole it does not seem to us to be of significance. From time to time during a summing up a judge may make comments favourable to one side or the other which, with hindsight, might have been better left unsaid. But that does not afford any ground of appeal when the jury have been told that if they disagree with the comment of the judge they should ignore it.

30. None of these complaints, to which others were added, afford a ground of appeal. But the more substantial ground must be considered in the light of these criticisms. That ground is that the Judge failed properly to identify features of the evidence which contradicted the evidence of L.
31. In her clear and cogent written submissions Mrs May identifies thirteen features of the evidence which either undermine or contradict the evidence of L. Firstly, her evidence that the first occasion on which she was raped was when her mother was out getting bottles for her baby was contradicted by her recorded "ABE" interview in which she said that no sexual approach had occurred on that occasion. Secondly, the trigger for her first complaint was during a difficult period in relation to her partner in the context of a fictional account of child sex abuse. The complaint was made only in the most general terms. Thirdly, she had given the defendant a photograph of herself with her younger brother after the alleged abuse. Fourthly, she had arranged for him to decorate her new flat and had thanked him in a demonstratively affectionate fashion in front of others. Fifthly, she was present at functions for his family with whom she had no relationship at all. Sixthly, it was apparent that she could shout for help from the window of where she was living during fights between the appellant and her mother. Seven, there was evidence of association between herself and LM before complaints had been passed to the police. Eight, she never told her own father, during her frequent visits to him, of the unhappy circumstances, as she alleged, of her life with the appellant. Nine, her brother BF apparently remained unaware of what was happening. Ten, there were no signs of bleeding or blood-stained clothing, still less complaints of pain, all of which she had apparently managed to conceal from her mother. Eleven, she never complained about the appellant's father's behaviour towards her. Twelve, she never complained to her mother once she had grown up and long after the association with the appellant had ceased. Thirteen, it was her mother who had reported the allegations to the police; she had not done so.
32. The significant feature of each and every one of these factors on which the defence relied to counter the evidence of L is that their source was distinct from and independent of the evidence of L herself. In contrast to a case such as Lawless and Basford where the truth of the accomplice's allegations against the defendants could only be tested by cross-examination and depended entirely on who was to be believed, in the instant case it was for the jury to form a judgement on whether the thirteen factors, from independent sources, undermined the credibility of what L had said in chief. For example, the jury had to weigh whether the undoubted discrepancy as to when the first occasion of rape occurred led to the conclusion that what she was saying was untrue. They had to consider whether her apparently friendly and affectionate behaviour after the alleged occasions of abuse cast doubt on whether such abuse had occurred. It is true that the jury was deprived of the opportunity of seeing L's reaction to the cross-examination, but the absence of cross-examination did not deprive the defence of the foundation to its arguments as to why L was not to be believed.
33. We take the view that whilst a defendant is generally entitled to cross-examine one who gives live evidence, accusing him of an offence, the inability to do so is not automatically and always fatal to the fairness of the trial. Where the grounds for challenging the evidence of a complainant and undermining that evidence derive from a distinct source all that has been lost is the opportunity for the jury to weigh the reaction of the witness once those factors have been put. Had she been able to continue, she would either have admitted that her evidence was false, an unlikely reaction, or sought to explain it away. In her absence, the prosecution could only seek to avoid the impact of the other evidence, it could not rely on that witness to deny it. Thus the disadvantage which a defendant suffers from not being able to cross-examine as to those points is not substantial. Indeed, it may even be an advantage since the complaining witness has lost the opportunity which she would otherwise have of explaining why, for example, she demonstrated affection or, for example, had not made an earlier complaint. The obligation of the defence to put those points to the witness is, after all, not only to contradict them but also, if she cannot, to avoid their suggested impact on the credibility of her own evidence. Once the witness herself was deprived of the opportunity to explain them, the defendant has an unrestricted opportunity to rely upon those factors as tending to a conclusion that the complainant's evidence was false.
34. We wish to make it clear that we are not seeking to minimise the importance of cross-examination as a legitimate tool for assisting a defendant. But, as any defence advocate will know, cross-examination, particularly of an obdurate and distressed witness, may be a forensic weapon of limited use. We take the view that in the particular circumstances of this case, and bearing in mind the nature of the factors on which the defence sought to undermine L's evidence, the inability of defence counsel to do more than start her cross-examination did not lead to unfairness in the trial.
35. We must also acknowledge that when the Judge reminded the jury of the points on which the defence relied, he identified only four, the gift of a photograph, a visit to her on the occasion of the appellant's father's death, her denial to her mother and the delay in contacting the police. The Judge was under no obligation to remind the jury of all thirteen of the points but those four demonstrate how the defence was able to rely upon the factors we have identified without any explanation or challenge from the witness herself.
36. We have already identified the failure of the Judge to give any assistance to the jury as to how they should approach the evidence of the witness absent any opportunity to cross-examine her. But despite that failure, in the particular circumstances of the case, we take the view that the defendant did have a fair and proper opportunity to challenge what she said.
37. We have to consider the safety of the verdicts as a whole. Whilst the defence case turned on the suggestion that false allegations had been orchestrated by L's mother the very history of how the complaints emerged lends, in our view, force to the prosecution case. The reluctance of L to complain until long after either she or her mother needed to have anything to do with this appellant teaches powerfully as to where the truth lies. The allegations made by LM of rapes between October 2002 and May 2004 after a period of some 20 years again powerfully suggest that there was no concerted attempt to make false accusations against this appellant. We acknowledge that once the jury concluded that the complaints were independent they could be deployed to support the truth of the individual allegations. But we cannot accept that the jury were convinced of the truth of the complaints made by M and by LL, the daughters of separate families, as a result of such support as could be derived from the complaints made by L. Three separate families were concerned and the jury were plainly entitled to reject any suggestion that for some unexplained and inexplicable reason those complainants had agreed to make false allegations against this appellant.
38. In those circumstances, despite the failures of the Judge we have identified, we do not think that the appellant's trial was unfair nor do we find the verdicts unsafe. The appeal against conviction is dismissed.
39. The appellant applies for permission to appeal against his sentence. In respect of the rapes against L and LM he was sentenced to imprisonment for life with a minimum term of seven and a half years (a notional determinate sentence of fifteen years). In respect of a rape between April 2004 and 30 November 2005 he was imprisoned for public protection with a similar minimum term of seven and a half years. He received fixed terms to run concurrently in respect of the other offences. The application centres on the order that he serve life imprisonment with a minimum term of seven and a half years. They were passed without the benefit of a report. A report has now been prepared. This shows that the appellant suffers from poor health but also shows that he represents a high risk of harm to children, in particular, females in a family setting. The applicant committed a series of rapes against a young girl in relation to whom he was in effect a stepfather and against his own daughter after her mother had died. He persists in saying that he was not guilty of those offences but these sentences have to be considered on the basis of our conclusion as to the safety of the verdicts. In the light of the gravity of those offences and the report that we now have, in our view it is not possible reasonably to argue that the indeterminate sentences or the minimum terms were manifestly excessive. In those circumstances the application in relation to sentence is refused.