England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5 October 2012

1. LADY JUSTICE HALLETT: On 3February 2012 at the Worcester Crown Court sitting at Hereford the appellant was convicted of seven counts of sexual assault of a child. HHJ Hooper QC the trial judge sentenced him to a total of 12 years' imprisonment. He was acquitted of rape of a child and no evidence was offered in respect of an additional count of sexual assault. He appeals against conviction with leave.
2. Reporting restrictions are in place in relation to the revelation of the identity of the complainant, but there is now no longer any need for the judgment to be anonymised.
3. The appellant is related to the complainant and assisted in her care when she was young. In 2009 she complained to a family friend about his behaviour. Her father spoke to the appellant, and as a result of that conversation, the family rejected what the child was saying. Nothing further was done about the allegations at that time. Her care arrangements continued as before, as did the opportunities for abuse.
4. In February 2011 the child again complained. She disclosed to her mother that the appellant had sexually abused her by touching her vagina with his fingers and with his penis from the age of 4 or 5. She said he made her promise to keep what was happening a secret. This time the allegation was reported to the police and she was medically examined. The doctor's findings neither confirmed nor refuted the allegations. The appellant was interviewed and denied any inappropriate behaviour.
5. In August 2011, the child went further and suggested that the appellant had penetrated her vagina with his penis. The appellant was further interviewed and denied that allegation also.
6. The defence case was a complete denial of the allegations. Mr Mytton, for the defence, put to the child's mother during cross-examination that she had put the idea of these allegations into her daughter's head because of her hostility towards the applicant, and further that her evidence that the child had demonstrated sexualised behaviour after the allegations had surfaced was a lie.
7. The prosecution applied to adduce in evidence two of the appellant's previous convictions, not on the basis of propensity because it was thought they were too old, but on the basis that they came within gateways (f) and (g) of section 101 of the Criminal Justice Act 2003. The prosecution argued the evidence of the convictions was necessary to correct a false impression (gateway (f)) and because the accused had made an attack on another person's character (gateway (g)).
8. The two convictions were as follows. On 21 March 1978, when the appellant was 17, at Worcester Magistrates' Court he pleaded guilty to an offence of indecent assault on a 14 year-old girl. On 15 April 1981, when he was 20, he was convicted of an offence of indecent assault on a 9 year-old girl.
9. As far as gateway (f) was concerned, the judge observed in his ruling that he had no doubt the appellant had created a false impression in his interview about his criminal record. The appellant claimed that he had never been attracted to the complainant or to any other child. Asked if he had ever found a child sexually arousing (by officers unaware of his previous convictions at the time), he replied, "No, it makes me feel sick".
10. The judge did not accept the defence suggestion that this line of questioning had entrapped the appellant. He was of the view that the appellant created any difficulties for himself by his lying answers.
11. As to gateway (g), the judge had no doubt that the attack upon the mother by defence counsel was necessary and advanced with moderation by Mr Mytton. However, in his judgment the allegations put to her were very serious and therefore opened up gateway (g).
12. The judge did not refer specifically to the terms of section 101, nor indeed to the terms of section 78 of the Police and Criminal Evidence Act 1984. Accordingly, Mr Mytton has argued that the judge has failed to apply the relevant statutory provisions as he was obliged to do. In his written submissions, Mr Mytton relied upon passages in R v Highton, Van Nguyen and Carp [2005] 1 WLR 3472 to the following effect from paragraph 12 of Lord Woolf CJ's judgment:

"12. Protection is also provided for the defendant at the stage of admissibility by the terms of s.101(3) if the admission of the evidence could cause unfairness, and by the reference in s.103(3) to convictions which it would be unjust to admit as evidence of a propensity to commit offences of the kind with which he is charged because the Court is satisfied, 'by the reason of the length of time since the conviction or for any other reason' that it would be unjust for sub-section 103(2) to apply. In this context, there is a very close relationship between the requirements of fairness and the general requirement of the rules of evidence that, unless evidence is relevant, it should not be admitted.

13. Those provisions protect against unfairness arising out of the admission of bad character evidence under s.101(1)(d) or (g). The question also arises as to whether reliance can be placed on s.78 of Police and Criminal Evidence Act 1984 ("PACE"). The application of s.78 does not call directly for decision in this case. We, therefore, do not propose to express any concluded view as to the relevance of s.78. However, it is right that we should say that, without having heard full argument, our inclination is to say that s.78 provides an additional protection to a defendant. In light of this preliminary view as to the effect of s.78 of PACE, judges may consider that it is a sensible precaution, when making rulings as to the use of evidence of bad character, to apply the provisions of s.78 and exclude evidence where it would be appropriate to do so under section s.78, pending a definitive ruling to the contrary. Adopting this course will avoid any risk of injustice to the defendant.

14. In addition, as s.78 serves a very similar purpose to Article 6 of the European Convention on Human Rights, following the course we have recommended should avoid any risk of the court failing to comply with Article 6. To apply s.78 should also be consistent with the result to which the court would come if it complied with its obligation under s.3 of the Human Rights Act 1998 to construe sections 101 and 103 of the 2003 Act in accordance with the Convention."

13. Given the repeated references to "fairness" in the provisions relating to the admission of evidence of bad character in the Criminal Justice Act 2003, we respectfully agree with Lord Woolf's observations.
14. Mr Mytton reminded the court that section 101(3) and section 101(4) require the court on an application of this kind to consider the question of fairness and the length of time between the previous offences and the current alleged offence. Essentially his argument came to this: although the criteria in the Criminal Justice Act were technically met in that the evidence was relevant and admissible through the two gateways, it was so overwhelmingly prejudicial that its admission rendered the appellant's trial unfair.
15. Mr Mytton accepted that whether one relied upon the words of section 101 itself or the words of section 78, the judge was obliged to conduct a balancing exercise to ensure a fair trial. In his submission the judge has come down on the wrong side of that balancing exercise in concluding that the prejudicial effect did not outweigh the probative value.
16. Miss Nixon for the Crown conceded, as she must, that the appellant's previous convictions would have inevitably affected the jury's attitude towards his evidence. This was the whole point of adducing them. However, she contended that they were relevant and admissible under both gateways, and that the judge's directions on how the jury might use them cannot be faulted. She observed the jury plainly followed those directions. They were not so prejudiced against the appellant as to convict him of an offence of rape upon which they were not sure, no doubt in the light of the medical evidence and the late disclosure.
17. We agree. We reject Mr Mytton's assertion that the proper way to correct any false impression created by the appellant in interview was to edit the interview. This is to miss the point. The evidence of what he had said when confronted by the allegations was relevant and admissible. If an accused lies in interview and the consequences for the appellant are unfortunate, the answer is not to edit out those lies. The answer is that the prosecution is entitled to rely upon those lies. Here the answers were freely given and the appellant was not lured into making his character admissible. Once the evidence was in, it was incumbent upon the judge to ensure that the jury were not misled. The evidence was therefore necessary to correct a false impression which went to the heart of the matter.
18. Accordingly, the whole of the interview was relevant and admissible, and it was only fair to both parties and in the interests of justice for the jury to know the appellant's background, properly to assess whether he was lying about his sexual interest in young children and, if so, why.
19. We also reject Mr Mytton's argument that the judge failed to address the relevant statutory provisions, both the criteria for admission of evidence of bad character in the Criminal Justice Act 2003 and the provisions of section 78 of PACE. Reading his ruling as a whole, it is clear to us that the judge was well aware of the principles he must apply. Judges are not obliged to repeat as a mantra the words of a statute simply to prove that they have applied its provisions.
20. It is also clear to us that the judge was well aware of the facts. He was acutely conscious how old the convictions were. He stated in terms that the prosecution were not applying to adduce the convictions as evidence of propensity because they were so old. He also referred to the age of the appellant when he was convicted, and of course he had a middle-aged man in the dock in front of him. The judge, given his substantial experience, must also have been acutely conscious of the potential prejudicial effect of these convictions. In his judgment, the admission of the convictions would not have had such an adverse effect on the fairness of the proceedings that the convictions should not be admitted because the prejudicial value did not outweigh the probative value. We agree.
21. For all those reasons, the appeal against conviction must be dismissed.