England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 April 2008

Mr. Justice Underhill:

1. On 27 July 2007 at the Crown Court at Manchester (Minshull Street) the Appellant, who was born on 18 November 1990 and was thus then aged 16, was convicted on five counts of rape of a male child under 13, contrary to s.5(1) of the Sexual Offences Act 2003 and two counts of inciting a child under 13 to engage in sexual activity contrary to s.8(1) of the Act. On 26 October 2007 he was sentenced to concurrent terms on each count of 30 months detention pursuant to s.91 of the Powers of the Criminal Courts (Sentencing) Act 2000. His appeals against both conviction and sentence have been referred to us by the Registrar of Criminal Appeals.
2. We start by considering the appeal against conviction. It is convenient to say at this stage that we give leave to appeal and proceed to consider the substantive issues. It is necessary to start by setting out the procedural history, in particular as it relates to the framing of the indictment.
3. The Appellant was initially arraigned on 29 November 2006. The indictment as it then stood contained six counts – four of rape (two involving anal, and two oral, penetration) and two of incitement of a child to engage in sexual activity, namely asking the victim to lick his anus. In each of the cases the victim "(R") was the same boy, the son of a woman with whom the Appellant's father was in a relationship, and thus – loosely speaking – his step-brother. R was about six years younger than the Appellant. All six offences charged were under the 2003 Act. They were advanced as sample offences: the Crown's case was that each form of the abuse (that is to say, anal rape, oral rape and making R lick his anus) had occurred on more numerous occasions than were specifically charged, beginning some time after the time when the Appellant's father and R's mother began their relationship, which was in August 2003, and ending when the relationship broke up at the end of 2005. In the case of each count, the particulars did not identify a date for the offence but merely specified a period. In the case of two of the offences the start-date pleaded for the period in question was 5 August 2004, and for the remaining four it was 5 August 2005. Why those precise dates were chosen is unclear but is immaterial for present purposes.
4. On 3 July 2007 the indictment was amended, on the application of the Crown (unopposed by the Appellant), (a) to add a further count of oral rape, occurring in a period with a start-date of 5 August 2003, and (b) - more materially for the purpose of this appeal - to change the start-date of the period identified in the particulars for each of the existing counts to correspond with that in the new count, i.e. to 5 August 2003. As amended, counts 1 and 2 alleged anal rape, counts 3-5 oral rape and counts 6-7 the offence under s.8(1).
5. The trial commenced on 23 July 2007 before His Honour Judge Lakin. The case was opened to the jury, and in due course summed up by the Judge, on the basis that if they found that anal rape occurred once, they should convict on count 1 and if more than once on count 2; and likewise for the counts of oral rape and under s.8(1) (save that in the case of oral rape count 5 was appropriate if they found that it occurred more than twice). The Appellant was in due course convicted on all counts. He was remanded on bail for reports prior to sentence.
6. At some stage during the interval between conviction and sentence it was appreciated for the first time that the start-date of the period specified in the particulars under each of the counts on which the Appellant had been convicted preceded the coming into force of the 2003 Act, which occurred on 1 May 2004. The indictment as originally drafted was unobjectionable: the problem was caused by the amendments introduced on 3 July. On 25 October 2007 the Crown invited the Judge to amend the indictment so that the particulars referred to no date earlier than 1 May 2004. He refused that application on the basis that he had no power to permit amendment of the indictment following the verdict of the jury. It has been suggested to us that that was incorrect, in the light of the decision of this Court in R v JW (unreported, 21 April 1999); but that is not a submission on which we have found it necessary to reach a concluded view since, as will appear, the substantive issues which we have to consider in this appeal would arise whether or not the Judge had power to amend the indictment.
7. It is common ground before us that the indictment on which the Appellant was convicted is defective because the particulars as pleaded include a period of several months (specifically 5 August 2003 to 30 April 2004) during which the offence charged did not exist. It is also, however, common ground that it is not a nullity (as to this, see the observations of Lord Bridge in R v Ayres [1984] AC 447, at pp 460 -1). The issue for us is simply whether the defect in question renders the Appellant's convictions unsafe.
8. Mr Hamilton, for the Appellant, submits that a conviction is necessarily unsafe when the period specified in the indictment covers a period when the act alleged would not have constituted the offence charged. He relies on the decision of this Court in R v C [2005] EWCA Crim 3533 [2006] 1 Cr App Rep 28: although the precise situation falling for consideration in that case was different from that with which we are concerned here, the reasoning of the Court recognises that a defendant cannot be convicted of an offence under the 2003 Act unless the prosecution is able to prove that the act alleged occurred after 1 May 2004.
9. Miss Gatto for the Crown does not seek to challenge that proposition as a matter of principle. It is, however, her submission that it can be demonstrated that, if the jury – as it evidently did – accepted the evidence of the prosecution witnesses, it must necessarily have found that all of the behaviour charged, or in any event some behaviour of each of the kinds represented by the specimen counts, occurred on or after 1 May 2004. If that is right, she submits, the convictions are safe. Even if some acts of the kind charged may have occurred prior to that date, that is immaterial provided that other such acts occurred after it.
10. In our judgment if Miss Gatto's premise is correct, her conclusion does indeed follow. But the crucial question is whether she can establish her premise. As to that, it is necessary to look carefully at what evidence was indeed before the jury as to the dates at which the alleged offences occurred. This is not entirely easy because, at the time that the evidence in question was given, those eliciting it (whether counsel or, in the case of the complainant, the officer conducting his initial taped interview) did not believe that the precise dates were of any particular significance, and no systematic attempt was made to establish a clear chronology. Likewise, the judge in the course of his summing up on more than one occasion told the jury that precise dates did not matter. Nevertheless, Miss Gatto submits that a clear picture does in fact emerge. There are two key markers to which she attaches particular importance. The first is that on 7 January 2005 R and his mother moved from the address at which they were living when her relationship with the Appellant's father started – referred to in the evidence as "Greenwood Avenue" – to a new flat ("Inverness Road"). Any act which the evidence showed unequivocally had occurred after that move would necessarily have occurred after 1 May 2004. The second fixed point is the break-up of the relationship between the Appellant's father and R's mother, after which the Appellant and R ceased (save for a single immaterial occasion) to see one another: there was some uncertainty as to precisely when this occurred, and to what extent it was associated with her learning of the Appellant's behaviour towards R, but it was common ground at the trial that it occurred around Christmas 2005.
11. With those fixed points in mind we turn to consider the particular parts of the evidence on which Miss Gatto relied.
12. The Video Interview. The taped video interview took place on 12 May 2006. Miss Gatto identified the following passages as being relevant to the question of the dates at which the abuse occurred:

i) Quite early in the interview R explained that although the Appellant used to live at his "grandma's" he used to come and sleep at "my house". He was asked where his house was. He answered:

"… [W]hen he started doing it, it was at Greenwood but then we moved to Inverness. And then before Christmas my Mum left Greg because she ended up finding out what happened to me. "

That is a reasonably clear statement that the abuse started when R was living at Greenwood Avenue; but it is no help on the question on whether it started before 1 May 2004. It is also a statement that it continued until "before Christmas" (sc. 2005), and there is perhaps an implication that the abuse continued after the move to Inverness Road; but as to this there is more explicit evidence which we consider below.

ii) A little later R was asked when the Appellant started "to first come to your house". He answered "it was about two years ago". Two years back from 12 May 2006 gets us to 12 May 2004. Ms. Gatto invited us to take that as a terminus post quem for the start of the abuse. We do not believe that we can safely do so, both because the period specified cannot reasonably be regarded as anything but approximate and because R shortly afterwards gave a rather different date for the start of the abuse (see below).

iii) The officer conducting the interview then asked R to describe "the very first thing that CF made you do". She said that she wanted to be told "everything about that ... where you were, when it was and what happened before that … and what happened after it". R proceeded to give a detailed and circumstantial account of being subjected to an anal rape in the bathroom at the Appellant's grandmother's house, where they were both staying the night; and, the following morning, of being forced to fellate the Appellant. He gave no date, but he said:

"After that I went back to my house the day after and, erm, I didn't tell my Mum anything but when, erm, that was going on for at least two years time and then I ended up telling my Mum … what had happened so that's when she left my thingy, and he also told me to do summat really disgusting and lick his bum in the middle but I didn't do that at first, but when he threatened to hit me so I done it. But then, erm, when I felt like not doing it anymore and when I felt, and when I started getting dead sad and all that, my Mum started thinking CF had done summat to me and he said "if you tell your Mum what I've done with you then I'll batter you" so I didn't tell her at first but then when I started getting sick of it I ended up just, erm, just telling my Mum and he left… so my Mum said "you're never gonna… have to see him ever again."

It seems reasonably clear from that passage that what R is saying is that there was a period of "at least" two years from the original incident (that is, the anal and oral rapes at the Appellant's grandmother's house) to when he finally told his mother what had been happening, and that it was that which led to the relationship with the Appellant's father coming to an end. Since (see above) the relationship came to an end around December 2005, that would put the date of the original incident about the end of 2003. He is also clearly saying that abuse of a similar kind continued over the whole two-year period; but he does not in this passage (or – to anticipate – subsequently) give any details. A little later, the officer reverted to the first incident and asked R how long ago it was. He answered "nearly two years ago". That answer agrees with the passage which we have set out at (2) in putting the incident in, or rather after, May 2004; but the (perfectly natural) imprecision of the answer, coupled with the discrepancy with the earlier answer implying (about) December 2003, means that it cannot be treated as definitive.

iv) After the details of that incident had been fully explored, there occurred the following exchange:

Q. So we talked about that one time, has there been any other times that he has done anything?

A. Well, he has done it loads of times. He's done it nearly every day.

Q. Nearly every day?

A. Nearly, er, every time he's saw me he's done it to me.

Q. And what's he done? What sort of things has he done to you every time he's seen you?

A. Well, well really all the things I've said and them are the only things he made me do. Every week he told me, like, to suck his willy, and, erm, bend over and, erm, lick his bum.

Q. Right. So you know if we, if we, concentrate on him, putting his willy in your bum, how many times has he done that?

A. About four times.

Q. About four times. And I know what you've told me he done it his Grandma's, has he done it anywhere else?

A. At my house, and them are the two places he's done it at.

Q. Whereabouts in your house?

A. In my room.

There follows an exchange clarifying that, but which does not identify whether the room in question was at Greenwood Avenue or Inverness Road. The officer continued:

Q. Okay. When you say he's made you … suck his willy, how many times has he made you do that?

A. About nearly ten.

Q. About nearly ten times?

A. About nine times. He's done it load of times that.

Q. Okay and what about him making you lick his bum?

A. He's only done that about three times.

Q. Okay. So about four times he's put his willy in your bum; about nine or ten times he has made you suck his willy, and about three times he's made you, erm, lick his bum. Is that right?

A. Yeah.

Whether or not those precise enumerations of the times that each form of abuse occurred are really reliable, they are the most specific statement by R, and the jury cannot have safely found that the number of occasions was any greater. They are, of course, not even approximately dated.

v) Finally, R gave an account of how finally he came to tell his mother of what the Appellant had been doing. The exchange went as follows:

"Q. What prompted you to tell your Mum when you did do?

A. Well, erm, it, cos it were before Christmas and I wanted a nice Christmas without CF asking me to do anything, I told my Mum cos I were getting tired of it, always doing what he says and that so that's what made me tell my Mum.

Q. Right, okay. And when was the last time he did anything to you?

A. Erm, just before Christmas, since, like, November or summat.

Q. Of last year? Yeah?

A. Yeah?

Q. Okay.

A. Before that Christmas, before the Christmas that what went.

That is a plain statement that some abuse had occurred shortly before Christmas 2005; but no details are given of what form of abuse.

13. Cross-examination. Miss Gatto referred to the following passages from the cross-examination of R:

i) Early in his cross-examination R was asked how long after his mother and the Appellant's father started going out together he had moved to Inverness Road. He said that it was about a year. The cross-examination proceeded on the basis that during that year – i.e., broadly, over the course of 2004 - the Appellant had not often stayed with R; but this seems to have been inconclusive.

ii) R was cross-examined about the first incident which he had described in his video interview. Although he confirmed that the incident itself had happened at the Appellant's grandmother's house, he was asked whether it had occurred at a time when he was living in Greenwood Avenue or Inverness Road. He initially answered "Inverness Road", but at once corrected himself to "Greenwood" and appears to have confirmed this by agreeing that it occurred "in the first part of your Mum's relationship with his Dad". That confirms, therefore, that the abuse started before January 2005, but it gives no assistance as to how long before.

iii) R was asked about the enumeration of the various incidents which he had given in his video interview (see para. 12 (iv) above). Not surprisingly, he retreated somewhat from the precision of those answers, saying "I couldn't remember really". Counsel went on to ask him about where the abuse occurred. The Appellant said:

"He didn't do it in my room at my house as much as in his room really. In his house (in his grandma's house) nobody hardly comes in his room or anything, so he felt he could do it in his room; but he did it, I think it was about four times that he did do it actually at my house. "

This appears to be a statement that most of the abuse occurred at the Appellant's grandmother's house. The significance of that is that there are no relevant date-markers: so far as the evidence goes, the grandmother lived at that house, and the boys went there, throughout the period of the relationship between their parents.

iv) After some discussion of the incident in the bathroom at the Appellant's grandmother's house R was asked "so what happened in your bedroom?" He answered:

"He told me to suck his willy in my room and that all he's ever told me to do in my room."

He then confirmed, in answer to a question from counsel, that "my room" as there referred to meant his room in Inverness Road. This, therefore, is an explicit statement – for the first time in the evidence – that at least one form of abuse, i.e. oral rape, took place at Inverness Road and, therefore, necessarily after January 2005. In further answers he repeated that it was only occasionally that the Appellant stayed at "my house" – once said to be "a couple of times", elsewhere "four times".

14. Re-examination. In re-examination Miss Gatto attempted to clarify where the abuse occurred, but she did not seek to be specific about what abuse or about precise dates. R told her that "it went on" at Greenwood Avenue, once or twice … well, probably, actually about three or four times, I'm not sure". He said that the Appellant only slept on one occasion at Inverness Road. There was then this exchange:

"Q. When he did these things at Inverness, you talked about it being in your room. Was he sleeping or visiting?

A. Sometimes it was sleeping, and sometimes it were visiting."

This is confirmation that abuse occurred more than once at Inverness Road: the character of the abuse is unspecified, but given R's answer in cross-examination (see para. 13 (iv) above) it must have been oral rape.

15. Our attention was drawn to no other evidence before the jury bearing directly on the dates at which the acts of which are complained occurred.
16. Where does that evidence leave us? The starting point is that it is not possible to say with any confidence that the jury must – if, as it did, it accepted the truthfulness of R's account – have found that the initial incident, in which he was subjected to both anal and oral rape at the Appellant's grandmother's house, took place or on after 1 May 2004: the evidence in our view clearly admits of the possibility that it took place at some point in the period between December 2003 and the end of April 2004. It follows that we cannot say that any conviction based on the acts alleged in that incident constituting offences under the 2003 Act was safe. However, that incident was, on R's evidence, only the start of a long course of sexual abuse continuing until shortly before Christmas 2005. The jury must, given that it convicted the appellant on all counts, unquestionably have accepted that evidence; and it necessarily follows that, even if the initial acts occurred prior to 1 May 2004, several acts of abuse (indeed almost certainly the majority) occurred in the period of eighteen months or so between that date and the end of 2005. The problem is that the counts on which the Appellant was convicted specify particular acts of abuse, and it is not open to us to hold that any particular conviction is safe unless conduct of that particular kind can be unequivocally attributed to the period after 1 May 2004. On that basis we do not see how either the convictions for anal rape or for the offence under s.8(1) can be sustained. Although R says that he was anally raped on four occasions, it is impossible safely to exclude the possibility that all of those occasions may have occurred in the first few months of the abuse and before 1 May 2004: no doubt that is not very probable, but probability is not enough. Likewise with the three occasions on which R was compelled to lick the Appellant's anus. However, the position as to the counts of oral rape seems to us to be different. R did give unequivocal evidence that he was orally raped at Inverness Road, and on more than one occasion: see paras. 13 (iv) and 14 above. That must, necessarily, have occurred after 1 May 2004. We can see no rational basis on which the jury, having accepted R's evidence generally, could have been less than sure on this aspect. It follows that the Appellant's conviction on counts 4 and 5 is in our view safe.
17. Accordingly we allow the appeal to the extent of quashing the Appellant's conviction on all counts save counts 3 and 4. On the occasion of the hand-down of this judgment we will hear submissions on all consequential matters.