England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		2 September 2010

1. LORD JUSTICE RICHARDS: On 10 November 2009, at Bristol Crown Court, the appellant was convicted on 14 counts of indecent assault, one of attempted rape and two of rape. On 8 February 2010 he was sentenced by the trial judge, HHJ Horton, to a total of 19 years' imprisonment. He now appeals with the leave of the single judge against conviction on count 9, a count of rape. Other grounds of appeal against conviction have not been renewed, following a refusal of leave by the single judge. There is also an application for leave to appeal against sentence in respect of certain counts of indecent assault, an application which has been referred to the court by the Registrar.

1. The offences of which the appellant was convicted go back a long way, to between 1967 and 1986. He had three children by his first marriage; JP, DP and TP. Following a divorce in 1972 he married Cathy (nee EP), by whom he had a further three surviving children; CM, ST and JM. In addition, Cathy had three nieces; JM, LD, and VR. The principal case against the appellant was that he had systematically and repeatedly sexually abused JP, JM, LD, VR, CM and ST over a number of years during their childhood. The counts concerning VR were withdrawn from the jury but the appellant was convicted on the other counts.
2. In addition, he was charged with the rape of Cathy's mother, EP, at a date between 1973 and 1982. That was the subject of count 9. The nature of the allegation was that he had taken her to see Cathy in hospital after the birth of one of Cathy's babies and he had raped her in the car on the way back.
3. The various matters came to the attention of the police only in 2008. They postdated the time in January 2008 when the appellant re-married, sold the family house and changed his will in favour of his new wife, so that his children would receive only what was left on her death. He alleged that there was a conspiracy of lies against him as a result of his re-marriage and the change in his will, and that the allegations by EP on count 9 formed part of that conspiracy.
4. The principal evidence on count 9 was in the form of a video taped police interview of EP herself. The interview took place on 23 January 2008. EP was 84 years old at the time. She died soon afterwards, on 18 March 2008, long before the trial which started in October 2009. Her interview was admitted in evidence at the trial pursuant to the hearsay provisions of the Criminal Justice Act 2003.
5. In the interview EP said that she used to suffer from agoraphobia, as the appellant must have known, and she would not go out very much. When Cathy had had a baby she wanted to go and see Cathy in hospital but did not want to go alone. The appellant said he would take her. On the way back he took a different route from normal and told her that she could either have sexual intercourse with him or walk home. It was dark, she did not know her way back home, and she was terrified of having to walk home alone. Accordingly, she let him have intercourse with her in the car. She told him she thought it was disgusting. He did not use a condom and he ejaculated inside her. Afterwards he dropped her off at home. She said she had not told anybody about the rape at the time because she thought they would not believe her and she did not want to upset Cathy. The allegations emerged after Cathy's death in 2006.
6. The judge gave a detailed and careful ruling on the admissibility of the video interview. He dealt with the various defence submissions concerning the unreliability of the evidence, to which we will return. He considered the statutory conditions in section 116 of the Criminal Justice Act 2003 and the general question of fairness under section 78 of the Police and Criminal Evidence Act 1984, drawing for this purpose on the factors listed in section 114 of the 2003 Act. As to the importance of the evidence in question he said that without the evidence there was nothing to sustain count 9 and, looking beyond count 9, that the witness also gave important evidence to support the contemporaneous and consistent complaint from JM when JM had been 7 or 8 years of age. The judge considered that the circumstances in which the statement was made told in favour of its admission, because this was a video interview which enabled the jury to assess the demeanour and quality of the witness and better able to understand the points that could be made in relation to her unreliability. The witness could not be cross-examined and her account could, therefore, not be tested in that sense, but it could be measured against any evidence given by the appellant himself or by others in relation to the reliability and character of the witness, together with the comments of counsel and the warnings that would be given in summing up, and any matters that might be considered under section 124 of the 2003 Act to protect the appellant's position and enhance the quality of any evidence he could present against EP's evidence.
7. The judge then turned to the principles to be found, at that time, in the judgment of the Court of Appeal in R v Horncastle and others [2009] EWCA Crim 964, subsequently endorsed by the Supreme Court (see [2010] 1 Crim App R 17). It was held in that case that the provisions of the 2003 Act concerning the admission of hearsay evidence are consistent with the requirements of a fair trial or, as Lord Phillips put it at paragraph 108 of the judgment of the Supreme Court, they "strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should be immune from conviction where a witness, who has given critical evidence in a statement which can be shown to be reliable, dies or cannot be called to give evidence for some other reason."

The judge concluded that the conditions in section 116 of the 2003 Act were met and that it would be fair and in the interests of justice to admit the evidence.

8. Both counsel have provided this court with full and extremely helpful skeleton arguments. Miss Matthews, appearing on behalf of the appellant, has been very concise in her oral submissions. It was entirely appropriate to adopt that course because there was nothing that could usefully be added to the very clear written submissions that she has made and to which this court has given careful consideration. We have not found it necessary, in the circumstances, to hear oral submissions from Mr Quinlan on behalf of the Crown.
9. The case advanced by Miss Matthews on the appellant's behalf is that the judge was wrong to reach the decision he did to allow the interview to be admitted into evidence. A number of points are made, going largely to the reliability of what EP said in that interview.
10. It is said that she would have been around 50 years of age at the time when her daughter Cathy's children were born and she was allegedly raped in the car on the way back from hospital. Yet towards the end of her interview she gave some rather confused answers to the effect that the rape occurred after her husband had left her and that this was when she was aged between 70 and 76. Moreover, towards the start of the interview, when asked when Cathy was married, she said she did not remember all the dates and "My mind has gone haywire. I have been ill quite a lot you know and I can't even remember what yesterday was sometimes". At the very of the interview, after the questioning about her age and the date of the rape, she said "I do get confused a lot".
11. The point is also made that her medical records, which were available for the trial, made no reference at the material time to agoraphobia, although there was a later comment about it. Further, in 1977, during the period embraced by the count relating to the alleged rape, she was convicted of shoplifting and, at that time, had over 200 other cases taken into consideration. It is suggested that such conduct, shoplifting, is wholly inconsistent with the alleged agoraphobia. There had also been an earlier conviction in 1965 for shoplifting. Miss Matthews makes the valid point that this would have been an obvious area for cross-examination had EP been alive and able to appear as a witness at the trial.
12. It is submitted, by reference to those various matters, that she would in fact have been a most unreliable witness and that it was not possible properly to test or assess her evidence, a point which gains greater force from the fact that we are dealing here with an incident alleged to have occurred some 30 years or more previously.
13. For those reasons, it is submitted that the interview should not have been admitted and that its admission into evidence rendered the conviction on count 9 unsafe.
14. The rival submissions of Mr Quinlan, as they appear from his skeleton argument, are to the effect that all the matters in question were properly considered by the judge. Mr Quinlan points out that the indictment was amended at trial so that count 9 covered the window of 1973 to 1982, during which Cathy gave birth to her various children. He submits that that period is consistent with the detail of the allegations made by EP in her interview and with the evidence which supported it. It was inconsistent with her assertion late in the interview that she was raped after her husband had left her, but that inconsistency did not itself render her account unreliable. It was a matter before the jury and for the jury to evaluate in deciding whether to accept her account.
15. As to the passages in which the witness suggested she was confused, these did not go to the central issue of whether the alleged rape happened and, again, those passages were before the jury for them to assess. As the judge observed in his ruling, apart from the replies and errors in respect of dates, no other aspect of her behaviour depicted on the video was relied on in support of the contention of unreliability. Nor was there any medical or other evidence that she was unfit or not competent to give evidence or that she was otherwise unreliable.
16. The submission is made that her evidence was capable of being tested and was tested. The inconsistencies were there to be assessed; evidence was led of her conviction for shoplifting; the appellant himself gave evidence denying the rape; all these matters were there for the jury to assess. Further, the appropriate safeguards were observed and no complaint is made about the way that the judge ultimately directed the jury on this issue. He drew the jury's attention to the various matters that put the defence at a disadvantage and to the points that could be made on behalf of the defence.
17. In addition, our attention is drawn to the fact that EP's account had some other evidence to support it. The appellant's own evidence supported it as to opportunity and timing: he said in evidence that he drove her to hospital though he denied having done so on his own. There was evidence from a police officer confirming that the details given by EP about the location of the rape were consistent with the position on the ground. Her assertion about agoraphobia was supported by the evidence of her granddaughter, JM, who also gave evidence that EP had made a complaint or disclosure of the incident to her when she, JM, was about 16 years of age, which was in 1983. The jury were entitled to take this into account when considering reliability.
18. There is a further submission that although EP was the only adult complainant, the other evidence of sexual impropriety, if accepted by the jury, was capable of supporting her allegation, another matter in respect of which the jury were correctly directed by the judge.
19. We have given careful consideration to the arguments advanced on both sides. It is clear to us that the judge did the same in reaching his decision to admit the evidence. It was, as we have said, a fully reasoned decision and, in our judgment, it was a properly balanced and sustainable decision.
20. There is no reason to dismiss EP summarily as an unreliable witness. The extent to which her reliability was affected by her own evident confusion about her age at the time of the alleged incident, and her other comments about forgetfulness and confusion, was capable of being assessed by the jury. There were also other ways in which her account could be tested and her reliability assessed, as counsel for the prosecution has submitted. As counsel has also submitted, there was some separate support for her evidence, albeit that evidence stood as the central plank of the case on count 9.
21. It is of course true she could not be tested by cross-examination and that this was a serious limitation, but it was one that the judge took fully into account in reaching his decision and in relation to which, when it came to his summing up, he gave a full and proper direction to the jury.
22. Looking at the matter overall, we are satisfied that the judge was entitled to admit EP's interview into evidence and that its admission did not render the appellant's trial unfair or the conviction on count 9 unsafe. The appeal against conviction is therefore dismissed.
23. The sentence appeal requires an extension of time and leave to appeal, both of which we grant. The appeal relates to counts 10 to 14, the offences against LD. It reflects a point noted by the Registrar and drawn to the attention of counsel.
24. The offences in question were contrary to section 14 of the Sexual Offences Act 1956 and were committed before 16 September 1985, so that the maximum sentence for the offences was 2 years' imprisonment unless the victim was under the age of 13 at the time and her age was stated in the indictment. LD's age at the time was not stated in the indictment - a deliberate decision, because of the nature of her evidence as it appeared on the face of the papers. Accordingly, the maximum sentence on each of counts 10 to 14 was 2 years' imprisonment. Regrettably, this was not drawn to the attention of the sentencing judge who in consequence, by an oversight, imposed sentences of 4 years on each of those counts, concurrent with one another but consecutive to the sentences on the other counts.
25. Mr Quinlan for the Crown accepts that an error was made, though it should be stressed that it was not an error for which he was responsible, since he had identified the correct maximum sentence at the time and had, he tells us, included it in a note for counsel who attended the sentencing hearing when Mr Quinlan himself was unable to attend it. Nonetheless, he rightly apologises on behalf of the Crown that the matter was then overlooked at the hearing.
26. In the circumstances, we will allow the appeal against sentence by quashing the sentences of 4 years' imprisonment on each of counts 10 to 14 and substituting sentences of 2 years' imprisonment in each case, those sentences to remain concurrent with one another but consecutive to the sentences on the other counts. The result is that the total sentence to be served by the appellant is reduced from 19 years' to 17 years' imprisonment.
27. Thank you very much. The standard reporting restrictions in respect of the victims apply, I do not think that anything further needs to be said; no specific further order is needed.

29. MR QUINLAN: No. Thank you, my Lord.