England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		29 February 2008

LORD JUSTICE DYSON:

1. On 1 October 2007, at Bristol Crown Court, the appellant was convicted on counts 1, 4 and 5 of indecent assault and on counts 2 and 3 of rape. He appeals against conviction by leave of the single judge.
2. The case concerned allegations of sexual assault made by three complainants, JR, DW and NK. The first allegations related to the indecent assault and subsequent rape of JR which occurred in January 1990 when she was 17 years of age. The second complainant in time was DW, who alleged that she was indecently assaulted on one occasion in late 1991 when she was 13. The third complainant, NK, alleged that she was indecently assaulted on one occasion eight years later in 1999, when she was 14 years of age.
3. The appellant was about 31 years of age when he started a relationship with KB who was then about 16 years old. The relationship lasted over 20 years. The couple had a son, Richard, born in 1988. At that time the appellant and KB were running their own taxi business and working hard. In late 1989 KB arranged for her cousin, JR, to come to live with them for a while to look after baby Richard. In January 1990 the family moved into a bungalow in Wells, Somerset. JR remained living there until April, when she moved back home to live with her parents. She alleged that the appellant first assaulted her when KB was working in the taxi office. One evening he was at home with her in the living room. He made advances towards her and told her to lie down on the floor. He lay on top of her and moved as if simulating sexual intercourse. The incident ended when the family's dog jumped in and the appellant shouted at it to stop. JR went to her bedroom and went to bed. Those facts were the subject of count 1.
4. Later that night JR was sleeping as usual in the same room as the baby, who was in his cot. She was sleeping on a camp bed in a sleeping bag. She woke up to find that the appellant had unzipped her sleeping bag, removed her underwear, penetrated her with his penis and was having intercourse with her. She did not know whether he ejaculated before he moved from on top of her. Those were the facts which gave rise to count 2.
5. JR also alleged that the appellant raped her in a similar way on several other occasions. Those facts gave rise to count 3, which was a specimen count of rape.
6. In April JR decided to move back to her parents' home in Devon. In May she told her parents that she had been raped by the appellant. They confronted him in KB's presence. He strenuously denied the allegations. A rift then ensued in the family. JR did not speak to the appellant or to KB for many years thereafter.
7. The next allegation in time related to DW. It was said to have occurred on 15 November 1991, the night of the Wells Carnival. DW was 13 at the time. Her mother and father both worked in the taxi business with the appellant and KB. DW alleged that she had stayed the night of 15 November 1991 with the appellant in the mobile home in which he, KB and Richard were living at the time. Richard was asleep. KB was working in the taxi office. DW, who was alone with the appellant, had gone to sleep on a bench in the living area of the mobile home while the appellant watched television. She awoke to find him kissing her neck and moving his hand down to her breasts and towards the area of her vagina. He did not penetrate her. She rolled over on to her side and he removed his hand. She then went to sleep. She did not tell anyone at the time what had occurred, but a couple of months later she said that she had told her mother what had happened. Nothing was done and nothing was said to the appellant.
8. NK alleged that she was assaulted eight years later, in 1999, when she was aged 14. She together with her brother and sister had been staying for a "sleep over" with the appellant, KB and Richard. Her brother was a good friend of Richard, who by now was about 11 or 12 years old. She alleged that the appellant arranged for her to be alone downstairs when all the others had gone to bed. He then invited her to sit on his knee. He offered to pay £40 for a school trip, which her parents could not afford. He stroked her breasts under her bra and moved his hand towards her groin. She jumped off his lap and went upstairs, where she telephoned her aunt to ask her mother to come to pick her up. Her mother arrived. NK told her what had happened. There was a brief confrontation. NK and her mother left. NK did not want to pursue a complaint at the time, but her mother reported the incident to the police and a record was kept of it.
9. With the exception of the report by NK's mother, nothing was said to the police about what had occurred until May 2006. By this time the appellant and KB were going through an acrimonious separation which had started in late December 2005. KB had involved the police on several occasions.
10. The defence maintained that KB had encouraged the complainants to go to the police to help her win her separation battle with the appellant. It was clear that KB had approached JR through her mother after she had separated from the appellant. She said that this was to apologise for not believing JR when the allegation was first made in 1990, but the defence suggested that it was to stir up trouble for the appellant.
11. DW and NK went to the police within hours of each other on the same day, apparently coincidentally, and DW played a role in putting the police in touch with JR.
12. The appellant denied all the allegations. He suggested that the three complainants must have acted together to resurrect the old allegations made by JR and NK and that DW had joined in the campaign against him. He pointed out that DW's and NK's parents still worked with, and were friendly with, KB, and that JR's mother had a significant amount to lose financially during KB's separation from the appellant.
13. Prior to closing speeches the judge raised with counsel the issue of how the jury were to be directed in relation to the admissibility of evidence on one count to support the evidence on another. At the outset of his summing-up the judge directed the jury as follows:

"But you must look at each count separately and it does not by any means follow that your verdict on one count must be the same as your verdict on another count. Of course, you may, in the end, come to that conclusion but you must not start off by saying to yourselves, 'Oh, well, if count 1 is proved then count 2 is proved', because that obviously would be nonsense."

Towards the end of his summing-up the judge gave this direction to the jury in relation to the cross-admissibility issue:

"I remind you of what I said about treating each count separately, and that is the overarching principle. Mr Large is quite right in stressing that you should not be saying to yourselves, 'There's no smoke without fire'. What should be your approach to the fact that we have three young girls making similar allegations? The first thing you must ask yourselves is: are you sure that the three girls did not put their heads together to make false accusations against the defendant? There are cases, of course, where this does happen. In this case, of course, the allegations are separated by some quite considerable time and the allegations were all made at the time, although in [DW's] case the defendant was not confronted with the allegation. You remember [SW] told us that she said to the defendant, 'My children tell me everything, and I mean everything, Ron' and she hoped that would get through to him but perhaps it did not.

If you are not sure that they did not put their heads together to make false accusations it will be quite wrong to take a view that the evidence of one girl provides any support for the evidence of another. If you are sure that the three complainants did not put their heads together to make false accusations, you must ask yourselves whether it is reasonably possible that the three complainants, independently making similar accusations, could all be lying. If it is your conclusion that it is not reasonably possible then you may consider that the evidence of one girl supports the evidence of the others.

However, there are two important aspects of the evidence that you must consider. You must look at 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 it would be a remarkable coincidence if they hit upon the same lies. Mr Large, I think, would urge you to say that there is not much similarity between the allegations, and that is a matter for you.

You have also to consider whether the three of them have been consciously or unconsciously influenced in their evidence through hearing of the complaints made by the others. If they have been so influenced then you must take that into account in deciding what weight, if any, you give to their evidence."

14. The first ground of appeal is that the judge was wrong to direct the jury that they could treat one count as providing support for another. It is submitted that he should have directed them to treat each count separately. Mr Large submits that the question for the judge was whether to direct the jury that it was open to them to decide that the evidence in support of one count was capable of going to establish the appellant's propensity to commit offences of the kind charged on the other counts. In assessing this, the judge should have had regard to the circumstances of each allegation and the sort of issues identified by this court in R v Hanson [2005] 2 Cr App R 21 at paragraphs 9-12, [2005] EWCA Crim 824, particularly the nature and number of offences involved and the interval of time between them. Mr Large submits that the allegations made by JR were very different from those made by DW and NK. The indecent assault on JR was forceful and resisted, and was followed by rapes committed while she lay asleep in bed. The indecent assaults on the other two girls did not involve simulated sexual intercourse and were not followed by rapes. Further, the allegations relating to JR pre-dated those made by NK by about nine years. It is conceded by Mr Large on behalf of the appellant that it is more arguable that the allegations of indecent assaults made by DW and NK could be mutually supportive to demonstrate a propensity to commit offences of the type charged, but they were separated by eight years during which time no offending was alleged to have taken place.
15. It seems that the judge was not given much (if any) assistance by counsel as to the approach that he should adopt when deciding whether to direct the jury that one count was capable of providing support for another. It has been made clear by the decision of this court in R v Chopra [2007] 1 Cr App R 16 that the question of cross-admissibility must be determined by an application of the relevant provisions of the Criminal Justice Act 2003 ("the 2003 Act") and not by an application of the common law rules which found expression in decisions such as DPP v P [1991] 2 AC 447. The relevant common law rules were abolished by section 99(1) of the 2003 Act.
16. For the purposes of this case the relevant provisions are section 101 which, so far as relevant, provides:

"(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 ...."

and section 103 which, so far as relevant, provides:

"(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; ...."

17. Accordingly, the judge should have considered whether the evidence supporting one count was capable of going to establish propensity to commit offences of the kind charged on the other counts. The judge did not do this. It is clear from the content of the directions that he gave to the jury that he considered that the question of cross-admissibility was governed by the abolished common law rules.
18. For the Crown, Mr Davies accepts that the test for cross-admissibility was relevance within the meaning of section 101(1)(d) and 103(2). He submits that these offences were in reality sufficiently similar to justify their cross-admissibility. Each involved a girl in her early to mid-teens being sexually assaulted by the appellant when staying in his home and when he was in a position of trust. The fact that matters progressed to rape in the case of JR does not of itself make her allegations dissimilar. A further point of similarity is the fact that both JR and DW alleged that the appellant sexually assaulted them or commenced the assaults when they were asleep or believed by the appellant to be asleep. These alleged offences were about 18 months apart. Although the offence concerning NK was in 1999, the facts of that offence are similar to the facts relating to the offence concerning DW.
19. It is clear that the trial judge did not apply his mind to the section 101(1)(d) and 103(2) test. If he had decided to direct the jury that they should consider whether the evidence in support of one count was capable of establishing the appellant's propensity to commit offences of the kind charged on the other counts, we doubt whether such a decision could have been successfully challenged in this court. It seems to us that the real question arising on this part of the appeal is whether the judge gave adequate directions to the jury on the issue of cross-admissibility.
20. Mr Large submits that the jury should have been directed that they should consider the evidence relating to each count separately; that if they were sure of the appellant's guilt on one count, they could use the evidence in relation to that count as providing some support for the Crown's case on the other counts if they were satisfied that a conviction on the first count showed a propensity to commit offences of the kind with which the appellant was charged on the other count or counts; that in deciding whether the appellant had such propensity, they should take into account the nature of the alleged offences, the differences between them and the length of time between the alleged offence against DW and that alleged against NK; that they should be careful not to attach too much weight to a finding of guilt on one count when considering the evidence in relation to another; that they should consider whether all or any of the complainants may have put their heads together and made up false allegations against the appellant; and that they should also consider the possibility that one or more complainants may have been influenced in their evidence, consciously or unconsciously, by hearing of the complaints made by the others.
21. Mr Large makes the following particular criticisms of the directions that the judge gave: first, the judge failed to say that if the jury were not sure that the girls had not put their heads together to make false allegations, they should acquit; instead, the judge said that if they were unsure whether the girls had put their heads together to make false allegations, it would be wrong to treat the evidence of one girl as providing support for the evidence of another. Secondly, he submits that the direction that if it was not reasonably possible that the three complainants could all be lying then the jury could consider that the evidence of one girl supported the evidence of the others went further than the bad character provisions of the 2003 Act. Thirdly, the judge did not give the warning that the jury should not attach too much weight to a finding of guilt on one count when considering the evidence in relation to the other.
22. Mr Davies submits that the judge gave what was required, namely a succinct and readily understandable direction as to why the evidence of one count may be relevant to the jury's deliberations. The jury knew that they had to approach carefully the fact of three complainants making similar sexual allegations, and they had to exclude deliberate collusion or unconscious inference by hearing of the allegations by the others. The similarity was for them to consider and in essence if the allegations were similar, the relevance would be the greater.
23. As to the suggestion that the judge should have directed the jury by reference to propensity, Mr Davies submits that in a case where the evidence of bad character is comprised in different counts in the same indictment, it is artificial and unnecessary to direct the jury of the need to be satisfied that propensity is established before the evidence on one count can be relied upon in support of a finding of guilt on another count.
24. In our judgment the judge's directions were defective in two important respects. First, he failed to direct the jury that they could only take into account the evidence on one count in support of another count or counts if they were satisfied that the evidence showed that the appellant had a propensity to commit offences of the kind with which he was charged in that other count or those other counts. It seems to us that, in the light of the decision of this court in Chopra, it was necessary for the judge to direct the jury in a way which reflected the provisions of sections 101(1)(d) and 103(1)(a). That necessarily imported a consideration of the question of propensity. The judge directed the jury:

"If it is your conclusion that it is not reasonably possible [that the three complainants could all be lying] then you may consider that the evidence of one girl supports the evidence of the others."

By that direction the judge took the issue of propensity away from the jury. On the basis of that direction the jury could rely on the evidence on one count in support of the case on another count, provided that they were satisfied that the girls were not lying. They did not additionally need to be satisfied as to propensity. In our judgment the lack of a reference to propensity was a material omission.

25. Secondly, the judge did not warn the jury that they should not place undue reliance on the evidence on one count in reaching their decision on the other counts. This, too, was a material omission. In our judgment the judge's directions to the jury should have contained the essence of the points (although not necessarily in the precise words that we have earlier given) which Mr Large submits should have been included.
26. A further criticism made by Mr Large of the summing-up concerns the way in which the judge dealt with the issue of recent complaint. In the course of his summing-up the judge gave no direction as to how the jury should approach the evidence of the first complaints made by each girl. At the end of the summing-up this omission was pointed out by counsel. The judge then said this to the jury:

"The point is that the complaints were made pretty soon after, and that is something which you will consider, I have no doubt, in deciding whether they are true allegations."

Mr Large submits that this was an inadequate direction. Section 120 of the 2003 Act provides, so far as material:

"(4) A previous statement by the witness is admissible of any matter stated of which oral evidence by him would be admissible, if --

(a) any of the following three conditions is satisfied, and

(b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.

....

(7) The third condition is that --

....

(d) the complaint was made as soon as could reasonably be expected after the alleged conduct...."

27. The Judicial Studies Board specimen direction on recent complaint where section 120(4) and (7) apply is in these terms:

"The law permitted this because X said he believed that [he made] the previous statement [and that it] was true, and because it consisted of a complaint of [part of] the offence now being tried, made by X [to Y] shortly afterwards. If you accept the evidence of X [and Y] about the complaint, the complaint itself is evidence you may take into account, if you think fit, when considering X's liability as a witness and when considering your verdict[s]. (If the issue(s) arise(s):) When deciding whether or not to take the complaint into account, consider whether or not it was [made as soon as could reasonably be expected] [made as a result of a threat or promise] [drawn from X rather than being volunteered by him]."

28. Mr Large submits that the judge should have directed the jury how to approach this type of evidence and identified and directed them as to the circumstances in which the complaints were made. In this case JR did not complain to her parents at the time, although she had opportunities to do so when they visited the appellant or when she returned home from her holidays. DW's complaint was elicited in response to questions by her mother some weeks after the events in question, yet no action was taken on the complaint. Only NK's complaint was made contemporaneously. In short, Mr Large submits that the judge should have given a more focused direction on this important aspect of the evidence rather than saying in a broad-brush way that the complaints were made "pretty soon after". Mr Davies submits that the importance of the complaints made at or close to the time of the alleged offences was that they were made at all. The time when the complaints were made completely undermined the suggestion of collusion. To have said more at this stage of the summing-up could only have served to highlight the fact that each girl had given a consistent account close to the time of the alleged offences.
29. In our judgment the criticism of the judge's direction is well-founded. One element of the third condition for admissibility imposed by section 120(7) of the 2003 Act is that the "complaint was made as soon as could reasonably be expected after the alleged conduct". Thus before the evidence of the complaints to JR's mother could be admitted as evidence in support of the case against the appellant in respect of counts 1-3, the jury had to be satisfied that the complaint was made as soon as could reasonably be expected. Far from directing the jury to this effect, the judge took this issue away from them. He said that the complaints were made "pretty soon after". In other words, he directed the jury in effect that the complaints were made as soon as could reasonably be expected so that they should take them into account as part of the evidence against the appellant. In our judgment that was wrong.
30. In our view, therefore, for these reasons this appeal must be allowed. The combined effect of the misdirections on (1) the cross-admissibility point and (2) the recent complaint issue leads us to conclude that these convictions are not safe.
31. Mr Davies, do you seek a retrial?
32. MR DAVIES: My Lord, yes. There is no reason to think that the complainants will not be prepared to give evidence again and my instructions are that if the appeal is allowed, there will be a retrial and that is the application I make.
33. LORD JUSTICE DYSON: Do you seek to resist that?
34. MR LARGE: My Lord, the only observation I can properly make is that these are already old allegations. They date back eighteen years now to 1990, at their oldest, and at their youngest about ten years ago. So these are old allegations, and when considering whether a retrial is in the interests of justice I would ask the court to take that into account.
(The court conferred)
35. LORD JUSTICE DYSON: We propose to allow the appeal and to quash the convictions on all the counts. There is to be a retrial on all the counts. We direct that a fresh indictment be preferred and that the appellant be re-arraigned on the fresh indictment within two months. There is the question of bail or custody?
36. MR LARGE: My Lord, I do not have an address to put before the court today and I do not have a client here.
37. LORD JUSTICE DYSON: Then we must direct that he remain in custody for the time being and if you want to make an application then you make it to the appropriate court. The question of where the retrial is to take place will be determined by the presiding judge on the Western Circuit. We will make a representation order for the retrial for counsel and solicitor.
38. MR LARGE: My Lord, may I make one point in relation to your Lordships' judgment?
39. LORD JUSTICE DYSON: Yes.
40. MR LARGE: My understanding is that the Judicial Studies Board have removed the direction in relation to bad character, but the direction in relation to cross-admissibility, which is what the learned judge dealt with in this case, is still on the JSB web-site.
41. LORD JUSTICE DYSON: Oh, I see. So that part has not been removed?
42. MR LARGE: The last time I looked, which was in the last couple of weeks, it is still there. Whether your Lordship wishes to say anything about that, of course, is a matter for your Lordship.
43. LORD JUSTICE DYSON: I will check when I receive the transcript.
44. MR JUSTICE MADDISON: It is right that, following the decision in R v Campbell, the existing specimen direction on bad character was removed. That direction cross-referred to direction number 20 on cross-admissibility, but suggested that that direction be given in the context of a bad character direction overall. The bad character direction overall deals with the matters to which my Lord has referred and reminds the jury not to place undue weight on the question of evidence of bad character. But it is right, as I understand it, that the Judicial Studies Board have only removed the direction dealing specifically with bad character.
45. LORD JUSTICE DYSON: There is to be no report of today's proceedings until after the retrial or further order. Thank you both very much.