England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Hughes OC
sitting at Mold Crown Court
T20077098

		Royal Courts of Justice Strand, London. WC2A 2LL
		07/05/2008

Lord Phillips of Worth Matravers C J :

1. On 25 October 2007 at the Crown Court at Mold before His Honour Judge Hughes QC and a jury the appellant, R. L, was convicted of five counts of indecent assault (Counts 1-5) and four counts of rape (Counts 6, 8, 10 and 12). He was sentenced on 22 November 2007 to 12 years imprisonment for each rape and four years imprisonment for each indecent assault, all to run concurrently, less time spent on remand.
2. Permission to appeal against conviction was granted by Davis J. At the end of the hearing we dismissed the appeal stating that we would give our reasons later. These are those reasons.

The Complainant's evidence

3. The complainant gave lengthy and detailed evidence, but it can be shortly summarised. She was the appellant's youngest daughter, C, born on 12 November 1987. She suffered from partial deafness and speech problems.
4. In October 2006 she left the family home and went to live in a flat in Bromborough. Her parents visited her in the flat that month and stayed the night. She returned home over Christmas because of trouble with her neighbours, and then went back to the flat with the appellant on 9 January 2007 to prepare to move out of the flat.
5. On 19 January 2007 C complained to the police that she had been raped by her father in the flat on 9 January. He had locked the door and had forced her to have sexual intercourse with him on the sofa. This cumulated in her father withdrawing and ejaculating on the sofa and the floor. He had then wiped himself on a towel. She said this was the latest attack by the appellant but he had subjected her to indecent assaults repeatedly through her childhood, from the age of 10 until she was 16. Thereafter the assaults had amounted to rape. This had happened twice in the flat (the other time being at the time he helped her to move in) and also during her stay at the family home over Christmas.
6. On 19 January 2007, the police examined the flat and seminal fluid from the appellant was found on the carpet near the sofa and on a towel lying on the sofa.
7. The appellant was arrested. In his first interview he explained the finding of his semen , by stating that he had had sex with his wife on the sofa when they had stayed at the flat in October 2006.

The charges

8. The appellant was charged with 5 specimen counts of indecent assault of the complainant, one when she was 11, one when she was 12, one when she was 13, one when she was 14 and one when she was 15. He was charged with 3 pairs of alternative counts, which were also specimen counts, alleging rape and sexual activity with a family member when the complainant was 16, 17 and 18. Finally he was charged with the same alternative offences in relation to the events alleged to have happened on 9 January 2007.

The wife's statement

9. While the appellant was in custody, the police approached his wife, Mrs L, and asked her about the stay in the flat. She stated as follows:

"As far as I remember, we all went to bed at the same time. I do not recall having sexual intercourse with [the appellant] that evening but it could have been when I was asleep. This would have been while we were in bed. I have never had sex in any other part of C's flat."

Prior to the wife being called to give evidence she told the Witness Service that her statement was all lies, made up by the police.

10. At the trial the prosecution called Mrs L as a witness. She was sworn in but gave evidence only to identify herself as the appellant's wife. The jury was then sent out while the issue of whether she could be compelled to give evidence against her husband was raised. The judge accepted that her evidence related to offences which took place at a time when C was aged 19 and that therefore she was not a compellable witness against her husband (pursuant to s 80 Police and Criminal Evidence Act 1984 ('PACE')). Mrs L was permitted to take advice from a solicitor and declined to give evidence.
11. Counsel for the prosecution then applied to admit the statement given by Mrs L to the police under s 114 Criminal Justice Act 2003 ('CJA 2003').

Relevant statutory provisions

12. The relevant statutory provisions considered by the judge were as follows:

"Police and Criminal Evidence Act 1984

80.. .Compellability of accused's spouse or civil partner

(1) ….

(2) In any proceedings the spouse of civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person.

(2A) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable -

(a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or

(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.

(3) In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if-

(a) it involves an assault on, or injury or threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;

(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or

(c) it consists of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.

Criminal Justice Act 2003

114 Admissibility of hearsay evidence

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-

….

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (l)(d), the court must have regard to the following factors (and to any others it considers relevant)-

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.

(3) Nothing in this Chapter affects the exclusion of evidence of a statement on the grounds other than the fact that it is a statement not made in oral evidence in the proceedings.

….

Principal categories of admissibility

116. Cases where a witness is unavailable

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are-

….

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) 'fear' is to be widely construed and (for example) includes fear of death or injury of another person or of financial loss.

Application to admit the wife's statement

13. Mr Scholz for the Prosecution submitted to the judge that the provisions of s 116(2)(e) CJA 2003 were satisfied, as Mrs L was in fear of the likely consequences to the accused. Alternatively he submitted that it was otherwise in the general interests of justice for the statement to be admitted (s 114 (l)(d) CJA 2003).
14. Taking the factors set out in s 114(2), he submitted that:

a) the statement had critical probative value as to the issue of how the appellant's semen came to be on the towel;

b) other evidence on the issue had been given by the complainant;

c) it supported the evidence of the complainant and was therefore important in the context of the case as a whole;

d) the statement had been taken by police in the formal setting and contained a declaration of truth;

e) the statement painted a coherent picture;

f) the evidence of the making of the statement was entirely reliable;

g) oral evidence could not be called on the matter by the prosecution; and

h) the statement could be disputed by putting the maker's credibility in issue and challenged by the appellant in his evidence.

15. Mr Philpotts for the defendant submitted to the judge that the case did not fall within section 116(2)(e) of the 2003 Act. He further submitted that the admission of the statement would be contrary to, or would wrongly circumvent, the provisions of section 80 of PACE. Accordingly it should be excluded in accordance with section 114(3) of the 2003 Act. Alternatively, he submitted that it was contrary to the interests of justice to admit the statement and that, for this reason, section 114 of the 2003 Act was not satisfied. In the further alternative he submitted that it was unfair to admit the statement and the judge should exclude it in accordance with the provisions of section 78 of PACE. Mr Philpotts buttressed these submissions by arguing that Mrs L should have been advised by the police before being invited to make a statement that she could not be compelled to give evidence against her husband.
16. The judge ruled that the case did not fall within section 116(2)(e). He held, however, that he had power to admit the statement under section 114 and that it was in the interest of justice that he should do so.
17. The judge summed up the case to the jury on 25 October 2007. He referred to Mrs L's statement and the weight to be given to hearsay statements, but made no reference to her subsequent statement that what she had said was untrue.
18. After the jury had retired, Mr Philpotts made an application to discharge the jury. It had come to his attention that, contrary to the impression obtained by the judge, Mrs L had told the prosecution a month before the trial that she was intending to give evidence against her daughter at the trial. He submitted that if this had been made known to the defence they could have taken different procedural steps. It also cast further doubt on the wife's statement. The prosecution contended that this additional matter made no difference to the position and the judge agreed that his decision would not have been affected by it.

Submissions on appeal

19. At the outset of Mr Philpott's submissions we raised two matters that had concerned us on reading the papers. The first was the question of whether the appellant's wife could have been compelled to give evidence. The appellant had been charged with a course of sexual abuse of his daughter that started when she was 11 years old and which culminated in the rape that had been alleged to have occurred on 9 January 2007. The evidence in relation to that final incident was relevant to the issue of whether the earlier incidents that made up the course of conduct had occurred. While her evidence related specifically to the events on 9 January, could it not also be said to be 'in respect of the offences that were alleged to have taken place before the complainant was 16, these being 'specified offences'?
20. When he came to make his submissions Mr Scholz adopted this suggestion. He explained that the issue of whether the wife was a compellable witness had only arisen when she was called to give evidence and in these circumstances he had had little time to give detailed consideration to the effect of section 80 of PACE.
21. Mr Philpotts accepted that the proposition that we had put to him was arguable. He was, after all, contending that the admission of the wife's statement should result not merely in the quashing of the conviction on the last count, but on all the earlier counts.
22. Mrs L could not be compelled to give evidence against her husband in relation to the last count, that being the count to which her evidence was most directly relevant. We think that it is a nice point whether she could have been compelled to give evidence on the basis that her evidence was also of relevance to the counts relating to the earlier specified offences. For reasons that will become apparent we do not have to resolve this issue.
23. The other matter that concerned us was whether it could be said that the admission of the wife's statement, if unlawful, rendered the appellant's conviction unsafe. The complainant had given evidence that her father had raped her on the sofa of her flat on 9 January and wiped himself on a towel. The appellant had sought to explain this by saying that he had had sexual intercourse with his wife on the sofa when they had spent the night in the flat with his daughter some three months earlier. Such an explanation was incredible in the extreme. Quite apart of the unlikelihood that the appellant would have had intercourse with his wife on the sofa on that occasion, rather than in the bedroom that their daughter had provided for them, it was incredible that the towel would still have been on the back of the sofa three months later. Added to that, it would be an extraordinary coincidence for the daughter to have fabricated a story that dovetailed so precisely with the finding of the appellant's semen on the carpet and the towel.
24. Mr Philpotts accepted that the only explanation consistent with the appellant's evidence was that the complainant had observed her parents having intercourse in October and the use that her father then made of the towel and deliberately kept the towel in order to invent the account of rape that she gave to the police three months later. We asked Mr Philpotts whether this scenario had been put to the complainant in cross-examination. He said that it had not.
25. In these circumstances, we were unable to see any grounds for saying that the appellant's conviction was unsafe, whether or not the wife's statement should have been admitted in evidence and could have dismissed the appeal on that ground alone. We shall, however, deal with the points made in relation to the wife's statement, for we have been told that there are other cases in which similar points have arisen.
26. The issues raised in this case are as follows:

a) Should the police have told the appellant's wife that she could not be compelled to give evidence against her husband before taking a statement from her?

b) Should the wife's statement have been automatically excluded pursuant to s. 80 of PACE on the ground that she was not a compellable witness?

c) Should the wife's statement have been excluded under s. 114 of the 2003 Act and section 78 of PACE on the ground that it is contrary to the interests of justice to admit the evidence of a witness who is not compellable and who does not wish to give evidence?

d) Should the wife's statement have been excluded on the ground that it was contrary to the interests of justice to admit it having regard to the factors set out under section 114(2)?

e) Should the judge have told the jury that the wife had said that her statement was untrue?

f) Should the judge have withdrawn the case from the jury when he discovered, after the jury had retired, that the wife had indicated that she would give evidence against her daughter?

Policy

27. Before considering these issues, it is helpful to consider the policy behind the current restrictions on the compellability of a wife to give evidence against her husband. The rule against compelling a wife to give evidence against her husband has its origin in the common law. It used to be the case that, subject to limited exceptions, a wife not merely was not compellable, but was not competent, to give evidence against her husband in a criminal trial. In Hoskyn v Metropolitan Police Commissioner [1979] AC 474 Lord Wilberforce at p. 488 said that this was because of

"the identity of interest between husband and wife and because to allow her to give evidence would give rise to discord and to perjury and would be, to ordinary people, repugnant"

28. It was, however, not obvious that it was repugnant to permit, or even require, a wife to give evidence against her husband in all circumstances. In some circumstances at least it might be said to be repugnant that, through absence of a wife's evidence, a husband might fail to be convicted of serious criminality. Thus Wigmore on Evidence, 3^rd ed. (1940), p.232, described the rule that precluded a wife from giving evidence against her husband as:

"the merest anachronism, in legal theory, and an indefensible obstruction to truth, in practice"

29. In the interests of the due conviction of the guilty, Parliament has severely curtailed the restriction upon a wife giving evidence against her husband. A wife is now a competent witness against her husband in all circumstances - see section 53 of the Youth Justice and Criminal Evidence Act 1999. A wife is compellable where her evidence is in respect of offences of violence towards herself or violence or sexual offences against children under sixteen years of age. Compellability in the latter instance reflects, inter alia, the desirability of convicting fathers who have committed violent or sexual offences against their children; offences in relation to which a wife may well be both a cogent and a reluctant witness.

Should the police have told the wife that she was not compellable?

30. We believe that we can summarise Mr Philpotts' submission on this point as follows. If the circumstances are such that the police would be obliged to caution a husband before taking a statement from him, they should tell his wife that she cannot be compelled to give evidence against her husband before taking a statement from her.
31. We can see no basis for such a requirement. The need to caution a suspect arises from the fundamental principle that a person cannot be required to give evidence that may incriminate himself. The policy against compelling a wife to give evidence against her husband is not the same. To caution a wife before taking evidence from her could inhibit the investigation of crime. We do not think that the policy that prevents a wife from giving evidence against her husband requires such a limitation upon the powers of investigation of the police to be implied.
32. Our conclusion is supported by the facts of this case. The appellant gave an explanation for the discovery of his semen which, while improbable, was one that the police would properly wish to check. The obvious and desirable way of doing so was to ask the wife for her version of events during the relevant period, without giving her any indication of what her husband had said and without saying anything that would discourage her from giving evidence.
33. For these reasons we have concluded that there is no requirement to tell a wife that she is not a compellable witness against her husband before interviewing her about a crime of which her husband is suspected. Having said that, it does not follow that there may not be circumstances in which the police will be well advised to make it plain to a wife that she need not make a statement that implicates her husband. If a question is raised, as it has been in this case, as to whether it is in accordance with the interests of justice to admit a wife's statement, the prosecution's hand is likely to be strengthened if they can show that the wife made her statement voluntarily, having been expressly informed that she was under no obligation to make it.

Should the wife's statement have been automatically excluded or excluded as a matter of discretion because of the provisions of s. 80 of PACE?

34. This question embraces the second and third issues set out above. Mr Philpotts submitted that it is tantamount to compelling a wife to give evidence against her husband if, when she refuses to testify orally, her statement is adduced as hearsay evidence, so that to adduce evidence in such circumstances offends against the spirit, if not the letter, of s. 80 of PACE.
35. Compelling a wife to give evidence is not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus s. 80 of PACE does not pose a legal bar to the admission of such evidence. Furthermore, if a wife has voluntarily made a statement to the police, the identity between husband and wife and the risk of marital discord will not be in play if that statement is subsequently placed in evidence to the same extent as if the wife is asked to give oral evidence to the jury that implicates her husband. Nevertheless, it could well be objectionable if the police take a witness statement from a wife, intending to call her to give evidence, and then seek to place it in evidence when the wife states that she does not wish to give evidence against her husband. There is an obvious paradox in excusing the wife from giving evidence, but then placing before the jury in the form of a hearsay statement the very evidence that she does not wish to give.
36. In any such case, whether or not it is just to admit the statement must depend upon the facts of the individual case. In the circumstances of the present case, we can see no injustice in admitting the statement. The law has made it clear that the interests of convicting a husband of child abuse take precedence over the demands of marital duty and harmony that would otherwise protect the wife from being compelled to give evidence. Here, as we have said, the appellant was charged with a lengthy course of sexual abuse of his daughter, much of it at a time when she was under 16. Whether or not in these circumstances the wife could have been compelled to give evidence, we consider that the public interest was served by the admission of her evidence, adding weight as this did to the overall case against her husband as well as to the case against him in respect of the non 'specified offences'.

Should the wife's statement have been excluded having regard to the factors set out under section 114 (2) of the 2003 Act?

37. While this issue was argued before the judge, Mr Philpotts devoted little time to it before us and we will deal with each of the relevant criteria under section 114(2) with brevity:

a) A critical issue in the proceedings was raised by the appellant when he stated that he had had sexual intercourse with his wife on the complainant's sofa in October 2006. The wife's statement had cogent probative value in relation to the issue of whether that statement was true

b) On that particular issue there was no other evidence that could be given to counter the appellant's case.

c) The issue was important in the context of the case as a whole. The evidence could, however, be said to be unimportant in as much as the issue raised was one on which the appellant's case was in any event incredible.

d) There was nothing in the circumstances in which the statement was made that cast doubt on its accuracy.

e) The reliability of the wife was subsequently thrown into some doubt by her assertion that the statement was untrue but it was open to the jury to conclude that it was the latter assertion that was untrue rather than the original statement.

f) No doubt was cast on the reliability of the making of the statement.

g) Oral evidence could not be given because the wife had exercised her right to decline to give evidence against her husband. This introduced the policy considerations with which we have already dealt. For the reasons we have given, we do not consider that on the facts of this case, the fact that s. 80 of PACE may have entitled the wife to decline to give evidence, was a reason why the judge should have excluded the admission of her statement.

h) It was open to the appellant to challenge her statement that sexual intercourse had not taken place outside the bedroom. We understand that such a challenge was made on the ground that the wife was intoxicated at the material time and might not have recollected what occurred.

i) The difficulty in rebutting the wife's statement lay in the fact that the appellant's case was incredible, not in any evidential problem. It was that which was prejudicial to the appellant rather than the admission of his wife's statement.

38. When the considerations set out above are weighed in the balance they lead us to the conclusion that the judge was entitled to rule that the admission of the wife's statement was fair and in the interests of justice.

Should the jury have been told that the wife had said that her statement was untrue?

39. This was a question that concerned Davis J. when giving permission to appeal. It was not relied upon by Mr Philpotts before us. It was open to the defence to have asked the prosecution to agree to the wife's renunciation of her statement being placed before the jury. They did not do so. We suspect that this was because the statement was, in part, helpful to the defence. The damaging part of it could best be dealt with by suggesting that it was inaccurate because of the wife's intoxication, rather than by informing the jury that the wife contended that it had been made up by the police - a case that the defence did not advance. For these reasons it would not have been appropriate for the judge to put the fact of the wife's renunciation before the jury.

Should the case have been withdrawn from the jury after the jury had retired?

40. We cannot see that the fact that the wife had stated to the prosecution that she would give evidence against her daughter affects the overall position. It was always open to the defence to approach the wife and ask her to give evidence to support her husband. They did not choose to do so.
41. It was for all of these reasons that we dismissed this appeal on the conclusion of the hearing.