England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9th August 2011

1. LORD JUSTICE LAWS: These appellants faced an indictment containing three counts, each of which charged them with an offence of abducting a child.
2. On 15th June 2010, before His Honour Judge Slinger at the Preston Crown Court, they were convicted by the jury on all three. They now appeal their convictions on counts 1 and 2 only, by leave of the single judge. The abductions alleged in counts 1 and 2 are said to have taken place between 3rd and 9th June 2010. The complainants were two girls: SL, on count 1: she was 13 at the material time; and PC, on count 2 she was 14 going on 15.
3. At the time of the events in question the appellants were sharing Mr Heys' home in Blackburn. Heys met the two girls for the first time on Friday 4th June at the home of a mutual acquaintance 16-year-old Jack Murfitt. Mr Murtagh did not meet the girls until the Saturday.
4. On the Friday both of the girls told Heys that they were over 16 and studying hair and beauty at a local college. They were smoking and may have been drinking alcohol. They and Heys stayed over Friday night at Murfitt's home. On the afternoon of the Saturday 5th June 2010 the two girls went to Heys' house, after SL had phoned Heys on her mobile phone. There they met Murtagh and again stated they were 16 or 17. They went elsewhere that evening but returned and spent the night at Heys' house sleeping in the downstairs living room. They remained until the evening of Tuesday 8th June. They played computer games, drank coffee and went out from time to time. There was no suggestion that they were kept against their will or in any way physically or sexually ill-treated. They were to give clear evidence that at no time had they told either appellant of their true ages. They were found at Heys' address on the Tuesday evening and the appellants were arrested.
5. They were duly brought to trial. They did not dispute that the girls had stayed at Heys' house; they relied on the defence to a charge of child abduction provided for by section 2(3)(b) of the Child Abduction Act 1984:

"It shall be a defence for [the defendant] to prove that at the time of the alleged offence he believed that the child had attained the age of 16."

6. It is entirely clear and undisputed that this statutory defence does not require proof of a reasonable belief; only a honestly held subjective belief. However, in opening the case to the jury counsel for Crown, as he has very candidly accepted, stated (we have his written text-paragraph 19):

"There is one other important matter of law that I must mention at this stage. Age. This offence, by definition, relates to children. For these purposes, a child is defined as someone under 16 years of age. It follows from that, that a defendant will not be guilty of this offence if he reasonably believes that the person who he causes or induces to stay with him was 16 or over."

Then again in paragraph 22:

"It will be for you, as the jury in this case, to decide what the truth is. If you are sure, having heard and seen all of the evidence in the case, that the defendants must have appreciated that the girls were underage, then that defence (reasonable belief that they were of age) is not available to them."

7. The importation of a requirement of reasonable belief was a mistake. It went uncorrected throughout the evidence for the prosecution including therefore that of the two complainants. The appellants then advanced a submission of no case to answer. The judge reject that submission and the case proceeded. The appellants did not give evidence.
8. When he came to deliver his closing address to the jury counsel for the Crown corrected the error that he had made in opening. He informed the jury that the words "reasonably" and "reasonable" had been used by mistake. He went on to explain that the only issue for the jury was whether the defendant whose case they were considering had in fact believed the girls to be 16 or over. If they were so satisfied it was no part of their function to consider whether such a belief was reasonable in all the circumstances and the defendant would be entitled to be acquitted.
9. In his summing-up the judge made no reference to prosecuting counsel's mistake. Here is the passage in which he deals with the issue of the complainants' ages (summing-up transcript 9A):

"... - a defendant has in law a defence to the charge if he proves that at the time he believed that the child was 16 or over and this is the exception which I briefly mentioned earlier. So the defendant then has to prove to you to satisfy you that he did, in fact, believe that she was 16 or over but in proving it he hasn't got to reach that high standard of proof placed on the prosecution. He doesn't have to make you sure that he believed it just to make you ... just to satisfy you that on the balance of probabilities it's more likely than not on the evidence that he believed the girl was 16.

What do the defendants then say about it? Remember look at them separately but they both told the police in interview that the girls had told them they were 16 or 17. They went to college doing a hair and beauty course and this, of course, is what the girls have said both when seen by the police and in their evidence. The defendants also say well look at the circumstances as well. When we first came across them they were already staying away overnight at the house with the young man not supervised by any parents. The cigarettes. There's talk of Jack Murphy having brought drink in. Say the defendants that there's really no other factual evidence and they invite you to say that on that balance of probabilities it's more likely than not that they believed the girls were 16 or over.

Well, the Crown's case on Counts 1 and 2. The Crown acknowledges what the girls have said. They've said it; said it to the men but say the Crown you're entitled to and you should look at all the evidence including the circumstances of what took place. Here it's said you have two grown up mature men. You've seen them. Grown up mature men 29, one of them, father of a young child and a 37 year old. Here they were with these two girls 13, 14 almost 15 not just for a short time meeting them briefly but for a very significant period. They'd have a full chance to see them, talk to them, eat with them, watch television together see how they reacted both in daylight hours and during periods of the night.

There's evidence for you to consider. What did [SL] say if you ... what did [SL] do if you believe [SL's] evidence? She says well the two of them when they first met her just say side by side each other because that's what [SL] loved to do; that's the way she operates. It must says the Crown have been clear to those two men that the girls were under 16. Well you too have seen them. Remember what counsel, the defence, said Miss Simpson said. Well [PC, the other girl], big girl, big girl - her size, her looks and so on, attitude. Well you've seen them and consider the evidence."

10. On the papers there were three grounds of appeal. The first was to the effect that the judge should have acceded to the defence submission of no case. The third, advanced only on behalf of Heys, related to a point concerning a note sent in by the jury after they had retired to consider their verdict. Neither of those grounds is pursued: if we may say so, quite rightly.
11. But the remaining and to our mind much more substantial ground is to the effect that there is a real risk that the jury considered the case on the mistaken footing, namely that the question that they had to decide was whether it was shown that the appellants reasonably believed that the girls were over 16. While Crown counsel specifically and rightly corrected his mistake in opening, when he came to make his closing speech, it needs to be borne in mind in our judgment that by then the jury had heard all the evidence and must have assumed, until the correction was made, that what counsel had said in opening correctly stated the law. It had not been put right at the time: not by counsel for the Crown, not by counsel for the defence and not by the judge.
12. When he came to sum-up in the passage we have set out the judge did not endorse or repeat Crown counsel's correction of his mistake. He did not direct the jury in terms that reasonable belief was not the test. His direction on the law at the start of the passage was certainly accurate; but he proceeded to refer to various objective factors, relied on by either side, which logically would be at least as relevant to a question of reasonable as to a question of honest belief. It is true (see Williams (1984) 78 Cr App R 276, R v Beckford [1988] AC 130) that the reasonableness of an asserted belief will be material to the question whether it is honestly held. However, in the events which had happened in this case, absent any clear statement by the judge that only honesty not reasonableness was the test, there must in our judgment have been a lively chance that the jury took the judge's directions to express a requirement of reasonable belief. For that reason we conclude that the convictions are unsafe and the appeal against conviction must be allowed.
13. LORD JUSTICE LAWS: Are there any applications?
14. MR DONNELLY: My Lord, I do have specific instructions from the Crown Prosecution Service to invite the court to consider ordering a retrial of these two appellants.
15. LORD JUSTICE LAWS: To invite the court; does that mean you are submitting there should be a retrial?
16. MR DONNELLY: Yes it does.
17. LORD JUSTICE LAWS: I see. They were sentenced.
18. MR DONNELLY: They were convicted of count 3 and that conviction stands: they were each sentenced to 2 years in relation to count 3 and that sentence will stand in spite of your Lordships allowing...
19. LORD JUSTICE LAWS: The date of the sentence -- that stands, yes. But you want a retrial on counts 1 and 2?
20. MR DONNELLY: Those are my instructions.
21. LORD JUSTICE LAWS: On counts 1 and 2 they were sentenced on the same occasion to?
22. MR DONNELLY: To 18 months concurrent on each of 1 and 2 but consecutive to the 2 years on count 3.
23. LORD JUSTICE LAWS: I cannot do the maths. When will they be released, everything else being equal?
24. MR DONNELLY: Mr Murtagh will have served his sentence and is entitled to immediate release. Mr Heys was in the unfortunate position of being in breach of a previous suspended sentence, so he received an additional 26 weeks for being in breach of that.
25. LORD JUSTICE LAWS: But for that he would be liable to be released as well. Both have effectively served their time on counts 1 and 2.
26. MR DONNELLY: Yes -- on count 3.
27. MR SHEPHERD: Consecutive sentence on count 3.
28. MR DONNELLY: The total sentence was three-and-a-half years, 3 years of it was count 3, 18 months was counts 1 and 2.
29. MISS SIMPSON: So far as Mr Murtagh is concerned he had already served 217 days prior to his sentence and has served an addition six-and-a-half and by my calculation he has thirteen-and-a-half, actually served thirteen-and-a-half months. He is now eligible to serve half of 2 years so served a month and half more than should as of today's date. So if the Crown are going to take this view which I understand is contrary to my learned friend's advice, then the decision needs to be made in short form.
30. LORD JUSTICE LAWS: I am not sure you should be telling us that... You say that given the amount of time served already, in short, it is not a case that is appropriate for a retrial.
31. MISS SIMPSON: No, not taking account of the strength of evidence to the fact these two girls stood by their evidence during the trial that they had at no stage indicated to either of these defendants that they were underage.
32. LORD JUSTICE LAWS: What does your co-appellant say?
33. MR SHEPHERD: My Lord I endorse that application that is made on behalf of my co-appellant. Mr Heys has the extra to serve in relation to breach of the suspended sentence order but will be due shortly for release as the matter stands today. Obviously it is a matter for the court, but it would seem that the crux of the matter was in relation to counts 3 in relation to this matter.
34. LORD JUSTICE LAWS: They have both served their proper punishment for count 3. Is there anything in reply?
35. MR DONNELLY: No submissions.
(Short Adjournment)
36. LORD JUSTICE LAWS: The Crown applies for a retrial of both appellants in this case. Given in particular the amount of time already served by both, and we have in mind of course the convictions on count 3 stand in any event and having regard also to the force of the evidence on counts 1 and 2, we have concluded this is not a fit case for a retrial and we make no such order.