England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TRURO CROWN COURT
HIS HONOUR JUDGE ELWEN
T200970/T20090176

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/08/2011

Mr Justice Ramsey:

Introduction

1. This is a case to which the Sexual Offences (Amendment) Act 1992 applies and therefore nothing must be published which might lead to the identification of any victim of an offence. The names of the victims have accordingly been anonymised in our judgment.
2. On 17 September 2011 in the Crown Court at Truro the appellant was convicted on seven counts of sexual activity with a child (Counts 1 to 3, 8 to 9, 13 and 15); three counts of rape of a child under 13 (Counts 4, 6 and 12); two counts of attempted rape of a child under 13 (counts 5 and 7) and two counts of causing or inciting a child to engage is sexual activity (Counts 10 and 11). The appellant and a co-defendant also faced another count of sexual activity with a child (Count 14). Both were acquitted on that count which was the only count against the co-defendant.
3. On 23 September 2011 the appellant was sentenced to 16 years imprisonment on Counts 4 and 6 (rape of a child under 13) to run concurrently on each count and 6 years imprisonment on each remaining count to run concurrently on each count. A direction was given that 55 days spent on remand should count towards sentence. The total sentence was therefore 16 years less 55 days.
4. The appellant was also made the subject of an indefinite Sexual Offences Prevention Order, had to comply with notification requirements and was included in the relevant list of the Independent Safeguarding Authority.
5. The appellant appeals against conviction by leave of the single judge.

The Facts

6. The prosecution case was that from December 2008 to April 2009 the appellant had groomed the complainants by providing them with access to cigarettes and alcohol before sexually abusing them at his home, whilst he was the only other adult person present in the house.
7. There were eight young female complainants. Count 1 was an allegation that, on a single occasion, the appellant slapped JP, born in May 1995 and aged thirteen at the time, on the bottom and that he touched her breast. It was said that the applicant had got Jessica drunk and had behaved in an openly sexual way in front of some of the other girls.
8. Count 2 involved CM, a girl born in October 2000 who was aged eight at the time of the alleged offences. It was alleged that, during a sleepover at the appellant's house in the company of NB, the appellant had touched her on the breast and over her vaginal area
9. Counts 3 to 7 involved, NB, born in September 1999 and aged about nine at the time of the complaints. It was alleged that during the course of a sleepover at the appellant's house involving CM, the appellant had touched her on her breast and vaginal area, she was forced to give the appellant oral sex and that he attempted to penetrate her vagina with his penis. She also said that on another occasion in a van with SF she was forced to give the appellant oral sex and that on another occasion he attempted to penetrate her in the front room whilst, again, being present with SF.
10. Count 8 involved JW, born in July 1993 and who was fifteen at the material time. It was alleged that the appellant caused her, SF and RF (SF's sister) to take their clothes off and get into bed with him and she, JW had to climb on top of the appellant while she was naked.
11. In Counts 9 and 10 the complainant was SF, born in August 1995 and aged thirteen at the time. The allegation was that in the company of JW and RF, the three of them were naked on the bed at the appellant's house and she had to lie on top of him. On count 10 the allegation was that at the appellant's house SF, together with RF and a number of girls, were in bed with the appellant.
12. Counts 11 and 12 involved SP, born in September 1997 and aged eleven at the material time. It was alleged that at the appellant's house she, SF and RF got into bed together in various states of dress or undress. On the following day it was alleged that the appellant made SP give him oral sex.
13. Count 13 involved LB, born in June 1995 who was aged thirteen at the time. It was alleged that the appellant put his hands up her top and down her trousers.
14. In Count 15 the complainant was EB. It was alleged that the appellant touched her feet and knees and kissed her on the mouth when she was aged eleven to twelve.
15. The defence case was that the allegations were false and had been contrived or stirred up by CP, SP's mother and NB's aunt, who in about April 2009 had threatened to have the appellant "put away by any means possible". Various of the complainants had fallen out with the appellant's daughter and now these complainants, spurred on by CP, had made up their allegations to get back at the appellant's daughter, through him. It was also said that some of the evidence advanced by the complainants clearly related to the allegations made against another person who was then awaiting trial for offences of sexual abuse.

Grounds of Appeal

16. There were originally three grounds of appeal and a fourth ground was raised in the appellant's skeleton argument. However Mr Linford, who appeared on behalf of the appellant, took the realistic view that, in the light of the cross-admissibility of evidence on different counts, an appeal on the basis that the judge should have acceded to a submission of no case to answer was not one that he would pursue. In addition the appellant raised a ground in the skeleton argument relating to an application under Section 41 of the Youth and Criminal Justice Act 1999. The appellant had applied successfully to cross examine SF in relation to allegations that SF had touched the appellant's daughter and two other complainants indecently during a sleepover; that the appellant's daughter had complained and the appellant had banned SF from playing at his house and that, in consequence made, SF had made false allegations. The judge permitted that cross examination but refused permission to cross-examine the other two complainants. In the event that ground, for which leave had not been given was not pursued.
17. As a result there were two grounds of appeal which were pursued. The first related to the judge's direction as to cross-examination of young complainant witnesses, in particular, complaint was made that whilst Mr Linford had complied with the judge's direction in relation to his cross-examination of those complainants, counsel who acted on behalf of the co-defendant did not do so.
18. The second ground arose because the prosecution listed RF as one of the witnesses on whom they relied but did not call RF at the trial. Mr Linford submits that the prosecution should have called RF; alternatively RF should have been called by the court.

Cross-Examination of Young Complainant Witnesses

19. During the course of the hearing Mr Linford applied to the judge to have the jury discharged on the basis that, at the judge's direction, he had adopted an approach to the cross-examination of young complainant witnesses in which he desisted from challenging the witnesses and was not expected to put the appellant's case. He says that he asked open questions which were short and not "tagged" with a comment to prompt an answer. In contrast he says that counsel for the co-defendant adopted a less constrained and more traditional approach to cross-examination of the witness LB. He submits that on this basis the judge should have discharged the jury and, although the judge gave a direction in summing-up which referred to the manner of cross-examination by Mr Linford and counsel for the co-defendant, that direction was not adequate to deal with the situation.
20. Mr Barnes, who appears for the prosecution, submits that the limitations imposed on cross-examination were entirely suitable and appropriate and that the cross-examination by Mr Linford was effective. He accepts that counsel for the co-defendant adopted a more traditional and robust approach to cross examination but says that, in the event, there was no injustice caused by that.
21. In relation to young vulnerable witnesses guidance was given in the case of R v B [2010] EWCA Crim 4 where the Lord Chief Justice considered the circumstances in which very small children might give evidence in criminal trials. At [42] he referred to the fact that the trial process must and increasingly had catered to the needs of child witnesses and that the forensic techniques of the advocate, in particular in relation to cross-examination, had to be adapted to enable the child to give the best evidence of which he or she is capable. He added:

"At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes very young, and it should not take very lengthy cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or reciting a well rehearsed untruthful script, learned by rote, or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension, and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence."

22. We have also considered the report of the Advocacy Training Counsel of the Bar of England and Wales "Raising the Bar: The handling of vulnerable witnesses, victims and defendants in court", produced in March 2011. One of the themes which emerged in consultations by the working party was the urgent need to address significant problems associated with the inconsistency and weakness of some advocates in handling and questioning vulnerable people. The report contains recommendations in relation to cross-examination and refers to the use of a trial practice note/trial protocol on this aspect at paragraph 15 of part 5 of the report. We support and endorse the general approach recommended in that report.
23. In this case there was, in our judgment, every need for there to be clear limitations imposed on the cross-examination of the vulnerable young complainants along the lines of those set out by the judge. Although at one stage it appeared that Mr Linford might be criticising those limitations, in fact on analysis, his criticism was that there was inconsistency between the approach that he adopted in accordance with the judge's limitations and the approach which had been adopted by counsel for the co-defendant.
24. We listened to the tapes of cross-examination carried out both by Mr Linford and by counsel for the co-defendant. We have also now obtained transcripts of certain passages of the evidence and of discussions with the judge.
25. Having considered this evidence we can summarise our conclusions as follows. First Mr Linford properly complied with the judge's directions and within the limitations imposed on the method of cross-examination was able to and did ask the necessary questions on behalf of the appellant. We note for instance, that in his cross-examination of NB when she was being asked about the relevant house where the offences were alleged to have taken place she was asked "Do you know that or did someone tell you that as well?" to which she replied "I knew it." She was then asked questions such as "You sure it is not something that CP told you?"; "You spoke to CP, before you were interviewed you spoke to CP about [the appellant], did you?"; "Were you with CP when SF spoke to CP?" and "And what was SF talking to CP about when you were with her?".
26. Mr Linford was also able to put questions such as "Was that something that really happened" and was able to put to NB what she had said in her ABE interview. At one stage NB gave evidence that SP and RF had told her that the appellant had "asked to do things with them but they said no". Mr Linford then, with the permission of the judge, put this question "You just said that RF and SF… had not done anything with, or told you they hadn't done anything with [the appellant]... but you told the police lady that they had told you they had. So what's right do think? Had they or hadn't they?" To which she responded "They haven't" Those extracts indicate in our judgment that cross-examination within the limitations directed by the judge can elicit evidence as effectively as the more traditional approach to cross-examination in criminal cases. They also indicate that Mr Linford was not unfairly hindered in asking questions which might progress the appellant's case.
27. By contrast counsel for the co-defendant approached the cross-examination with only passing regard for the limitations imposed by the judge. In particular, there was the following passage in his cross-examination of LB about an incident in a swimming pool:

Counsel: And yet you decided just simply to sit there in the pool until you see Heidi come out and you get out. Is that it?

Witness: Yes, he didn't let me out when Heidi wasn't there.

Counsel: So you say. If what you describe happened you must have been very upset?

Witness: Yes

Counsel: Very distressed as it was happening?

Witness: Yes

Counsel: Screaming, as it was happening, as best you could when you head was above water?

Witness: Yes

Judge: This is not the way to conduct cross-examination of a fifteen year-old. I have allowed you to go on longer than I should have done.

Counsel: My Lord. So be it. You describe, what, spluttering, going under the water?

28. The judge had to intervene to stop long questions and inappropriate comment by counsel and we agree with the judge's comment that the cross-examination was not appropriate for a fifteen-year old witness. We understand that the judge indicated such concern a number of times.
29. We have no doubt that the approach of counsel for the co-defendant did not comply with the proper limitations laid down by the judge. The question for us is whether the fact that Mr Linford was limited when conducting cross-examination on behalf of the appellant, whilst counsel for the co-defendant was not, rendered the trial so unfair that the judge ought to have acceded to Mr Linford's application to discharge the jury.
30. We do not consider that it did. In coming to this conclusion we are conscious that in all cases different styles of cross-examination are used by different counsel. The importance of the limitation on cross-examination in cases such as this is to protect the vulnerable witnesses and enable them to give the best evidence they can. We do not take the view that it follows that the type of cross-examination permitted means that the questions asked by counsel will be less effective in adducing the necessary evidence for the jury. Some of the most effective cross-examination is conducted without long and complicated questions being posed in a leading or "tagged" manner. In this case that is borne out by the fact that, in our judgment, Mr Linford's cross-examination elicited the necessary evidence. Whilst there was a limitation on the ability of Mr Linford to put inconsistent statements to the witnesses, as set out in R v B there are ways in which this limitation can be overcome.
31. We do not accept that the fact that the co-defendant was acquitted on count 14, the only count against him, can be taken as any indication that the acquittal was caused by the difference in styles of cross-examination. This count, as Mr Barnes and Mr Linford accepted was the weakest count. It involved allegations that the appellant held LB's arms and ducked her in a swimming pool while the co-defendant rubbed her vagina. Understandably, in the context of LB playing in the paddling pool with the appellant and the co-defendant, the jury were not sure that the alleged offence occurred and acquitted both the appellant and the co-defendant on this count.
32. We also consider that it is important to bear in mind the difference between witnesses such as NB who was nine at the date of the ABE and 11 at the time of trial and LB, the complainant on Count 14 and the only witness cross-examined by counsel for the co-defendant who was 13 at the time of the ABE and 15 at the time of giving evidence. The effect of the difference in the style of cross-examination was, on the evidence we have considered, more limited on a 15 year old than it would have been on an 11 year old.
33. The judge dealt with this aspect of the case in his summing up where he said this at 12E to 13B:

"With regards to cross-examination the norm in this country is for the defence to put its case in all its details to the witness. That practice has come quite sensibly, you may think, to be modified where children are concerned.

Accepted practice now tailored to the age and perceived maturity of the child witness concerned, is to put often quite shortly the essence of the Defendant's case; here, as regards both Mr Wills and [the co-defendant], that nothing inappropriate happened, and/or the witness was mistaken and/or have been put up to it and/or was confusing the Defendant with another person and then to ask some questions bearing on the child witness' credibility. There was, you may have remarked, a difference in styles adopted by Mr Linford and Mr Rowsell. That was not a reflection, and you must not treat it as a reflection of the strength or weakness of either Defendant's case. Those cases have been fully and properly ventilated before you, by the Defendants themselves and in the closing speeches."

34. We consider that this was an appropriate direction to give to the jury and Mr Linford's main criticism was that the direction was inadequate because it was given so long after the cross-examination by counsel for the co-defendant. We agree that it would have been better if some direction had been given at an early stage, as is done in other circumstances, to deal with the position at the time.
35. Taking all those matters into account, whilst we consider that the cross-examination by counsel for the co-defendant failed to comply with the judge's limitation and to that extent differed from the cross-examination by Mr Linford, we do not consider that it led to any unfairness in the way in which the trial was conducted from the point of view of the appellant. Any unfairness was properly dealt with by the form of direction given by the judge and we consider that the judge was entitled to and was correct to refuse the application to discharge the jury. It follows that the appeal on this ground fails.
36. However we would wish to make the following observations. First, we consider that in cases where it is necessary and appropriate to have limitations on the way in which the advocate conducts cross-examination, there is a duty on the judge to ensure that those limitations are complied with. This is important to ensure that vulnerable witnesses are able to give the best evidence of which they are capable. Where appropriate the judge, in fairness to defendants, should explain the limitations to the jury and the reasons for them. It is also important that defendants do not perceive, whatever the true position, that the cross-examination by their advocate was less effective than that of another advocate in eliciting evidence to defend them on allegations such as those raised in the present case.
37. This means that the limitations must be clearly defined. One way of achieving this, as suggested in the Advocacy Training Counsel's report, is for a practice note or protocol to be drafted for use by advocates and the trial judge containing the relevant matters set out in paragraph 15 of part 5 of that Report.
38. Secondly, we observe that if there is some lapse by counsel in failing to comply with the limitations on cross-examination, it is important that the judge gives a relevant direction to the jury when that occurs, both for the benefit of the jury and any other defendant. To leave that direction until the summing up will in many cases mean that it is much less effective than a direction given at the time.
39. Thirdly, this case highlights that, for vulnerable witnesses, the traditional style of cross-examination where comment is made on inconsistencies during cross-examination must be replaced by a system where those inconsistencies can be drawn to the jury at or about the time when the evidence is being given and not, in long or complex cases, for that comment to have to await the closing speeches at the end of the trial. One solution would be for important inconsistencies to be pointed out, after the vulnerable witness has finished giving evidence, either by the advocate or by the judge, after the necessary discussion with the advocates. This was, we think, envisaged by what the Lord Chief Justice said in R v B at [42].

Calling RF as a witness

40. The second ground of appeal is that on Mr Linford's application the judge should have indicated that RF was a witness whom the prosecution should call or alternatively that the judge should himself have called RF as a witness.
41. RF was notified by the prosecution as being a prosecution witness and her statement in the form of the ABE interview was disclosed as part of the prosecution case. When Mr Barnes was instructed some weeks before the trial he considered that RF should not have been included as a witness for the prosecution and decided not to call her. There then appears to have been an unfortunate delay in communicating this decision to the defence because Mr Linford was only notified of this at the start of the trial.
42. The principles to be applied to decisions by the prosecution to call witnesses have been set out in R v Russell-Jones [1995] 1 Cr App R 538. Those seven principles are essentially based on an underlying theme that the prosecution has a discretion as to which witnesses it wishes to call but that such discretion must be exercised in the interests of justice so that the trial is fair and that injustice to the defendant is avoided. On that basis the court will only interfere if the discretion had been exercised in a way which is wrong in principle.
43. In this case Mr Barnes submitted that he was entitled to take the view that RF should not be called by the prosecution because her evidence was not necessary, she was reticent to provide the truth and was thirteen and had suffered previous sexual abuse. He summarised her evidence as being that she, personally, was not abused by the appellant although she was present on one occasion when the appellant had behaved inappropriately towards JP in relation to count 1. On other occasions when she and the other complainants had been together with the appellant at his home she said that no abuse had been perpetrated against herself and gave no evidence of abuse being perpetrated against others, although other complainants described abuse occurring to both themselves and to RF on such occasions. Mr Barnes says that he took the view that RF's evidence should not be relied upon by the prosecution and there was nothing wrong in principle with that decision.
44. Mr Linford submits that RF should have been called by the prosecution, alternatively should have been called by the judge. It is to be noted that no application was made for RF's statement in the form of her ABE interview to be admitted as a hearsay statement.
45. Mr Linford referred us to that ABE interview of RF. It provided some support for the prosecution on Count 1 and evidently provided general support for the other counts although it did not provide support for the particular allegations which formed the relevant counts. What is quite evident is that RF was not a witness whom the appellant could consider calling.
46. As stated in Russell-Jones the question whether or not the Prosecution call a witness is a matter for the discretion of the prosecution. In this case there was and could not be any suggestion that the prosecution acted in bad faith in making the decision not to call RF. In exercising that discretion, as Stuart-Smith LJ said in R v Haringey Justices, ex parte Director of Public Prosecution [1996] 2 WLR 114 at 356:

"They must decide how they prove the case; they should not call unnecessary witnesses. For example, there may be a large number of witnesses of some major disaster from whom a selection should be made. There may be special reasons why they do not wish to call even an important witness, for example because of the extreme youth of a complainant and the likely adverse consequences or because the witness is too frightened and refuses to give evidence."

47. For the reasons which he gave, Mr Barnes took the view that RF was not a witness upon whom the prosecution should rely and we see no grounds for saying that such a decision was wrong in principle.
48. It follows, in our judgment, that there was no reason for the judge to intervene and either to seek to persuade the prosecution to call RF or take the unusual step of calling a witness himself, in circumstances where, despite the judge's view that the prosecution should call a witness, the prosecution did not then call that witness.
49. In any event having gone through the detail of the ABE interview with Mr Linford we do not consider that the absence of the evidence of RF can possibly be said to have given rise to unfairness to the appellant. If anything, the evidence would have supported the prosecution case and the most the appellant could have said was that there were some further inconsistencies between that evidence and other evidence. There is certainly no question of the absence of that evidence giving rise to any unfairness rendering the conviction unsafe.
50. It follows that we dismiss the appeal on this ground.
51. We were invited by Mr Barnes to say that the decision in Russell-Jones might be revisited in the light of current practice. He said that the pressures of work and inadequate staff numbers which currently beset the Crown Prosecutors mean that it is now far from unusual for witnesses to be notified whom trial counsel, when instructed later, would not wish to call. He submits that in these circumstances the discretion not to call a witness who previously would have been "named on the back of the Indictment" should be relaxed. We do not consider that the facts of this case provide any basis for revisiting Russell-Jones and, indeed, it might be argued that those principles should be upheld even when there are administrative difficulties.
52. We would however observe that if a decision is made not to call a previously notified witness, that decision should be made and notified to the defence as soon as possible, if for no other reason than that it causes unnecessary disruption to the smooth preparation for and conduct of the trial.

Conclusion

53. As a result we do not consider that either ground of appeal gives rise to such unfairness as to render the conviction in this case unsafe. It was a case in which there was overwhelming evidence from a number of young complainants in support of the allegations made in the various counts on which the appellant was convicted. In those circumstances we therefore dismiss the appeal but in doing so express our gratitude to both counsel for their helpful written and oral submission on the issues raised by this appeal.