England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9 October 2009

1. LORD JUSTICE HUGHES: This defendant was convicted of offences of historic sexual abuse against his daughter and, on a much more limited basis, against a friend of hers. His appeal challenges directly the judge's decision that evidence of what may have been a confession was admissible. Most of the details of the allegations are not critical to the resolution of that issue.
2. The daughter, who is now 28, alleged that the defendant had indecently assaulted her habitually over a period of about five or six years between the ages of roughly 6 and roughly 12 in about 1986 or 1987 to about 1992 or thereabouts. Thereafter, the defendant and his wife (the mother of the complainant) had separated, and the complainant had had nothing further to do with him.
3. The complaints were of indecent touching. They did not include penetration. The first was an allegation of making the daughter take hold of his penis, but after that the complaint was that he either touched or, more often, licked her private parts.
4. The complainant daughter had a friend of roughly similar age, perhaps a year or two younger. The friend complained of two incidents, specific rather than a general course of conduct as in the case of the daughter. She said that on one occasion when the defendant was babysitting he had tickled her and, in the course of doing that, put his hand inside her undergarments and touched her private parts. On a second occasion she said that he had been playing a game described as "the horsey game" with both her and her sister, and in the course of it had touched her over her clothing on or near her private parts.
5. For his part, the defendant's case was that, with the possible exception of the horsey incident, nothing that was alleged against him had ever occurred at all, nor anything like it: in other words, the complaints were falsely invented. As to the horsey game, he agreed that he had played it, and he accepted that his hand would, in the course of it, have been near the relevant area, but he said that, if there had been any touching, that was entirely innocent or accidental in the course of perfectly legitimate play.
6. As so often in a case of this kind, there were quite difficult questions of fact for the jury to resolve. There was the direct conflict of evidence which we have identified. The girls were both giving evidence about events which, if they had happened, had happened many years before. There were a number of inconsistencies especially in relation to the evidence of the daughter between what she said now and what she had told her friend and her friend's mother in the past, albeit most of it not contemporaneously with the period of the alleged offences but rather later. There was a decision which the jury had to make about the significance of the admitted fact that, in about 1988, she had told her doctor that she hated her father "for what he had done to her family and to her".
7. The friend's mother was called. She gave evidence which was agreed to be admissible about what her own daughter had said, either at the time or subsequently, about what the defendant's own daughter (the principal complainant) had said, not at the time but some years afterwards, and about speaking to the defendant near the time about the horsey incident, which alone had been reported contemporaneously, and receiving in effect an explanation from him similar to the one that he advanced to the jury.
8. Thus far the evidence of the friend's mother was agreed to be admissible. However, according to the friend's mother, she had had another significant conversation with the defendant. The defendant's ex-wife, the complainant's mother, had re-married in 1998, sadly, as it would seem, when already ill with a condition from which she died not long afterwards. It was common ground that the defendant arrived at that wedding. According to the friend's mother, who was also there, the defendant was in a rather emotional and noisy state, though the defendant disputed that. What was common ground was that, for whatever reason, the defendant and the friend's mother had left the party together, and gone quietly away somewhere else for a cup of coffee or some other refreshment and had spoken together. In the course of that conversation, according to the friend's mother, the defendant had said this: he had asked had the lady heard anything of the things that the daughter had been saying. He had then said, according to her:

"He had had a bit of a fall out with her. He had done something really terrible. I said 'could you tell me what this is'? He said 'No, it's too awful, I'm sorry for anything that's going to come out, I'm sorry if I have done anything to hurt you or the girls'. He said it was too awful to tell anyone. He could not live with himself. He was thinking about leaving the island because what he had done was so terrible. I said [said the friend's mother], 'If it's that bad it may be better if you do leave the island'. He said that [R] had been saying some stuff about him and when it came out, everyone was going to hate him."

9. On behalf of the defendant, Mr Butt, who appeared for him then as he does now, asked the judge to exclude this evidence. After hearing argument, the judge ruled that it was admissible. He did so in short terms, indicating, as Mr Butt has explained to us, that he would give a longer reasoned judgment later if required. No such request was ever made of him, and Mr Butt realistically does not make any complaint about the terms of the judge's ruling. His complaint is not about the terms, but he contends that it was wrong.
10. In a helpfully expressed and succinct skeleton argument, reinforced today by helpful oral submissions, Mr Butt makes a number of contentions. First and foremost he accepts that the statement reported by the friend's mother was capable of being construed as a confession to the charges on the indictment, among other constructions. He contends, however, that it was too vague and too uncertain for it to be possible for any jury to be sure that it was a confession to indecency with the daughter at least. If that is right, he contends the judge should have withdrawn it from the jury and thus avoided the potential adverse or prejudicial effect which it necessarily had if it could not be regarded by the jury as plainly relating to the allegations that they were trying.
11. The defendant's case in due course as to this conversation was that it had never taken place. Nothing had ever been said to the friend's mother along any of the lines that she recounted, nor anything like it.
12. It follows that the defendant advanced no alternative construction or meaning for the words which the friend's mother asserted that he had spoken. He was of course under no obligation whatever to advance such an explanation. The result was that there were two questions for the jury. First, was it sure that the friend's mother was telling the truth? There was not much room for mistake. It was either the truth or it was a lie. If the jury was not sure that the defendant did say it, the words alleged fell out of the case completely. If the jury was sure that he said it, the second question was: was it or was it not a confession, at least in part, to what was alleged on the indictment? Was it a confession to indecent abuse of the daughter at least?
13. The judge left those questions to the jury in precisely the correct manner. He told the jury that they would have to be sure that the answer to both those questions was adverse to the defendant. He told them first:

"If you are sure, and only if you are sure, that she is telling you the truth, then the prosecution invite you to conclude that what the defendant must have been referring to was sexual abuse of his daughter ... Because of the burden and standard of proof you would have to be sure that this is the only proper conclusion or interpretation to put on that conversation before you could use that evidence against the defendant."

14. Mr Butt advances a number of factual submissions which, in the contention of the defendant, went to suggest that the evidence of the friend's mother was unreliable. In short, they went to support the defendant's case that the friend's mother was lying. Those, we are satisfied, were entirely factual questions for the jury, and they had no bearing whatever on the admissibility of the conversation.
15. The thrust, however, of Mr Butt's careful submission goes to the second question left to the jury: could it be sure, assuming that the relevant things were said, that they amounted to a confession? We are quite satisfied that the judge was correct to admit this evidence. It very often happens that a remark which is either accepted or disputed is relied upon as a partial acknowledgment of guilt, that is to say, as a confession, and that the jury has to decide the two questions in sequence which were left to the jury in this case. We are also quite satisfied that the terms of this conversation, assuming that the jury found that it was sure that it had taken place, were such that the jury was entitled to be sure that the defendant must have been speaking about indecency with his daughter at least. Of course the defendant is not obliged to offer any kind of explanation for something which he says was never said. He was in fact given the opportunity in the course of his evidence to say whether or not there was anything in his past to which he might have referred in terms such as were alleged, and he said that there was not. That of course would not prevent the jury from asking itself the question whether there might be such a thing which even now he was not prepared to admit. But it is the fact that neither before the judge when admissibility was in question, nor before the jury, nor before us, has any plausible alternative construction for the words which the friend's mother alleged were spoken been advanced.
16. In those circumstances, we are quite satisfied that the judge's ruling was right and that the challenge to it must fail. We should record that we permitted Mr Butt to attach to his submission a challenge to all the verdicts of guilty, including those relating to the friend rather than the daughter, because we took the view that if inadmissible evidence had been put before the jury, it was at least arguable that it might have affected all of the convictions rather than only those relating to the daughter. But since the evidence was not admissible, that possibility does not arise. In those circumstances, despite Mr Butt's helpful arguments, this appeal against conviction must be dismissed.

(Submissions relating to sentence follow)

17. LORD JUSTICE HUGHES: The judge passed sentences as follows. On the counts relating to the daughter, he passed concurrent sentences of six years' imprisonment, and on the two counts relating to the friend, he passed sentences of 18 months' imprisonment concurrent to one another, but consecutive to the six years on the other counts; that is to say, seven and a half years in all. The first thing to say is that the judge inadvertently fell into understandable error in relation to count 1. Count 1 charged an offence of indecency with a child. At the relevant time the maximum was two years. The sentence of six years is unlawful. It makes no difference to the total, but it must be corrected. We quash the sentence on count 1 and substitute a sentence of 12 months' imprisonment.
18. The question which matters is whether the overall sentence of seven and a half years is outside the bracket within which the judge should have passed sentence. The judge expressly said that he had sought guidance from the Sentencing Guidelines Council's recent guidelines. The difficulty about those is that they are guidelines geared to the offences as they stand under the Sexual Offences Act 2003. Offences under that Act are defined differently from the offences with which the judge was dealing, although of course they cover much of same ground, and, more importantly, in many cases the statutory maximum is significantly raised under the 2003 Act. In particular, for most of the offences of sexual misbehaviour with a child under 13, which this girl was, the maximum is now 14 years, and in some cases greater, but was at the time 10 years.
19. We think Mr Butt is probably right that, insofar as one can look for some general steer from the 2003 Guidelines, the nearest to the present case is probably to be found on page 33 of the Guidelines: where the victim is under 13 a starting point of 13 years and a range of 1 to 4 years. But it needs to be remembered, first, that that is geared to a maximum of 14 years rather than 10, but equally importantly that it is geared to a single offence, whereas the judge was passing sentence for many, many offences, committed regularly over a period of around five years at the least.
20. This was a very serious course of conduct in relation, in particular, to the daughter. The defendant made use of his position as her father to treat her in a perverted manner. She was not in any position to resist, partly because she was extremely young, and secondly because she was his daughter. To put it in the terms in which sentencing is nowadays supposed to be expressed, the offences were significantly aggravated by her youth, by his repetition and by his status as her father and abuse of the position of trust which that put him in. In addition to that, the judge was in a position to see the damage which had been done to the principal complainant, the daughter, although of course it is right to say that some of that might be attributable to other features of the unhappy marriage and breakdown.
21. Mr Butt is right to point to the fact that there was no violence, no threats, no physical damage and no escalation. Those are perhaps better described as an absence of additional aggravation than as features of mitigation, but the two plainly are two ways of looking at the same feature. The case was missing those additional elements which sadly this court and all courts have frequently to encounter in cases of this kind.
22. In addition to that, the defendant is now 52 years old. Although there are some very old convictions for quite dissimilar offences, he is effectively a man of good character. The offences came to an end something like 17 or 18 years ago, and his conduct of himself since then has been without reproach.
23. That he had to go to prison we have no doubt at all. That he had to go prison for a significant period we have no doubt at all; he richly deserved it. We have however reached the conclusion that, overall, the judge's sentence was too long. The offences against the daughter were a great deal more serious than the offences against the friend. It aggravates his case and calls for a consecutive sentence that the offences were against two girls, but we pay attention to the fact that, in relation to the friend, there were two specific incidents, rather than a course of conduct, and that the second of them, the so-called horsey game incident, appears to involve behaviour near the foot of the scale of indecent assaults of this kind.
24. Looking at the case afresh, we have come to the conclusion that this defendant is properly and seriously punished if we substitute for the sentences on counts 2 to 7 inclusive a sentence of five years' imprisonment, and for the sentences on counts 10 and 11, a sentence of 12 months concurrent with one another, but consecutive to the other sentences, that is to say - five plus one - six years in all. To that extent but to that extent only, the appeal against sentence is allowed.
25. Time spent on remand will count as it did before.