England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL CRIMINAL DIVISION

		Case No. 2013/03304/B1 Royal Courts of Justice The Strand London WC2A 2LL
		20 May 2014

THE LORD CHIEF JUSTICE:

1. On 31 May 2013 in the Crown Court at Lewes before His Honour Judge Lawson QC and a jury, the applicant was convicted of a number of offences including indecent assault, rape, sexual activity with a child, sexual assault and possession of indecent images. He was sentenced to life imprisonment with a minimum term of twelve years. A Sexual Offence Prevention Order and other orders were made against him. He had spent some time in custody, but no order was made that that should be credited towards his sentence.
2. His applications for leave to appeal against conviction and sentence have been referred to the Full Court by the Registrar.

The nature of the case

3. At the time of his trial the applicant was 64 years of age. He had been a police officer who had served for over 30 years, and had risen to the rank of Chief Superintendent. The case against him brought by the Crown contained 34 counts. The first 24 alleged multiple sexual offences largely committed against ten male complainants between 1997 and 2008. The most serious counts in the indictment were the anal rapes of a 16 year old in the period 2006 to 2008 and the anal rape of his wife between 1998 and 2000. The remaining 10 counts related to indecent images of children recovered from a hard drive on his computer.
4. The applicant's case was that he had formed sexual relations with a number of males once they were over the age of 16, and that what had taken place was entirely consensual. He had not committed any acts of indecency or otherwise with anyone under the age of 16. The indecent images found on his computer were not put there by him; others had access to it. As to the anal rape of his wife, he admitted that they had attempted anal intercourse on one occasion, consensually, but that no further such activity had taken place.
5. A number of those who were the subject of the counts in the indictment gave evidence. Some of the males gave evidence that they began a sexual relationship with the applicant when they were under the age of 16. Two females gave evidence that when they were 15 or 16 he had tried to touch them sexually in a swimming pool. It was the applicant's evidence in respect of them that he was a tactile person and enjoyed the company of young people but that all the allegations were false.
6. The applicant's wife gave evidence that he had made it clear to her that he found sex with her boring and forced anal sex upon her on a number of occasions, even though it hurt her, made her cry and she told him she did not want it. It was only when a friend told her, after the allegations had been made against him by one of the males, that she realised that what he had done was rape.
7. We have summarised the allegations briefly and we do not need to elaborate upon them further.

The appeal against conviction: the knowledge of a juror

8. We turn first to the appeal against conviction. In the course of the evidence one of the prosecution witnesses referred to a police officer called Detective Sergeant D. In consequence, one of the jurors, SB, sent a note to the judge in which she said that she believed that the matter had been dealt with out of the area in which she worked. She explained that she had been a social worker in X area, had worked in child protection for a long period, and at one time had managed the Duty and Assessment Team in Y. She had currently a senior role in the Safeguarding Unit. She had therefore met with Detective Sergeant D at meetings, and on strategy discussions at Child Protection Conferences. She had also met with other police officers in that capacity. She added that the local authority designated officer was part of her work circle and that it is likely he would have been made aware of the investigations into the applicant's offending.
9. However, she made it abundantly clear that she had no prior knowledge whatsoever of the case and knew nothing about it, but she felt that she should ensure that her position was made known to the court.
10. She added that she did not know if the matter was processed through Children's Services or as an historic abuse case. If the court believed that it would be helpful, she would inform those who controlled access to electronic files to ensure that she could not see them. In further e-mail correspondence to the court she explained her ability to access files, but made it abundantly clear that she would not go anywhere near any matters relating to the case.
11. The judge very properly informed the parties of the information which the juror had so responsibly given. Unsurprisingly, an application was then made on behalf of the applicant to discharge the juror. It was accepted on behalf of the applicant at the trial, and it has been accepted today, that it was possible for her to be isolated from her work and from her computer, and therefore isolated from receiving any information about the case from her work files. It was also accepted that she had no personal knowledge whatsoever of this case.
12. However, it was submitted to the judge, as it is submitted to us, that the problem was that she was a social worker. She was an expert in the field of child protection. Her professional life had therefore exposed her to years of experience of cases such as this, working on the side of victims. That specialist knowledge and experience meant that issues directly pertinent to the case would be issues with which she would be entirely familiar from her work outside the courtroom. She would therefore be bringing to the jury deliberations professional and expert knowledge in the field they had to determine. It was submitted that this would give rise to the perception in the mind of a fair-minded and informed observer that she might unconsciously be biased against the applicant.
13. After hearing submissions from the Crown, the judge gave his ruling. He pointed out that Detective Sergeant D was not a witness at court and that his evidence was not disputed. Although an issue had arisen in relation to the juror's access to files, the real basis of the submission was the possibility that she would have unconscious bias. He did not accept the submission that it was "too close for comfort" to have someone of her experience on the jury. He described that as an "old fashioned argument" that was no longer tenable. He added:

"It may be thought in the mind of a defendant to be too close for comfort, but an unbiased and open-minded and properly informed observer might comment that somebody of her experience could understand that there is a real possibility in troubled minds of a fabrication against adults."

14. The argument that was advanced to the judge has essentially been very ably advanced to this court by Mr Kent QC. In considering this argument it is, first of all, necessary to stress again that this was not a case where the juror knew or had any connection with the applicant. She knew nothing of the facts of the particular case. The argument is based solely upon the assertion that, because she dealt with abuse against children, her expertise would give rise to the perception in the mind of a fair-minded observer of unconscious bias.
15. In our view this argument is wholly untenable. A jury is selected at random from the population. That is its strength. Jurors are told what the case is about at its commencement and also told that if any member has any personal knowledge about the case or knows the witnesses, then the court should be informed and they may be asked to step aside. This is because, as the courts have made clear, there may be a perception of unconscious bias in the mind of a fair-minded observer arising from knowledge by a member of the jury of the people involved in the case. Exactly the same position would apply to a judge. If he knew the witnesses, or knew the parties, or had personal knowledge, he would inform the parties and he might be asked to recuse himself.
16. However, it has never been an objection in a trial before a judge or a tribunal that the judge knows about the area of law in question or knows about or has expertise in the area of practice (such as engineering or the financial markets) to be investigated. Indeed, on the contrary, many litigants are delighted to have a judge who knows or has expertise about the area of law or practice which the case involves. Furthermore, our system of tribunals and specialist courts is premised on an understanding by the tribunal of specific areas of law, or specific areas or practice relevant to the case.
17. In our judgment jurors should not be treated any differently. A jury is expected, as is a judge, to try the case on the evidence. The jury will bring their collective experience. Some may know very little about the particular area in dispute and may just have a general knowledge of people. Others may have much more knowledge. Each pools his or her collective experience to judge the evidence and to make a decision solely on the evidence. That is the basis upon which the jury system proceeds. We cannot see how it can be argued that a fair-minded observer would expect otherwise. The fact that one member of the jury might have some knowledge of or expertise in the area to be investigated simply as part of their professional life is no reason to disqualify that person from service on a jury.
18. In our judgment the argument is untenable. The application for leave to appeal against conviction is refused.

Appeal against sentence

19. We turn, therefore, to the application for leave to appeal against sentence. We grant leave.

(a) Assistance from the prosecution

20. The task that faced the judge in sentencing was one of some complexity. Some of the offences dated back to 1997. The trial took place after the coming into force of significant amendments to the Criminal Justice Act 2003 effected by the Legal Aid Sentencing and Punishment of Offenders Act 2012 ("LASPO"). The judge therefore needed the utmost assistance from counsel in order to deal with a complicated sentencing regime. That need became the greater when, as we were told, the judge informed counsel during the course of the jury retirement that he had in mind passing a life sentence. Although he told counsel that in chambers for reasons which are wholly unclear, he repeated it in open court. It was therefore incumbent upon the Crown to be able to assist the judge in relation to his powers if he decided to pass a life sentence. In the result the judge did pass a life sentence. The first life sentence related to the anal rape of the appellant's wife. The second life sentence related to the anal rape of "SD", one of the male complainants, after his sixteenth birthday.

(b) Aggravating factors

21. Before turning to the way the judge dealt with those offences, it is necessary to outline the matters which caused the judge concern, and which would cause any judge concern. The most serious offence was the rape of SD charged in count 15. It covered a course of conduct which continued for one year covered by the indictment, and it was thought by the judge to have continued thereafter. Unfortunately, there was no count to cover that further period.
22. The offence of anal rape of the wife was charged in count 6. It was her evidence that there had been repeated rapes over a period of time, but it was the appellant's case that anal intercourse had occurred on only one occasion. It is unfortunate that there was only one count in the indictment which related to that most serious offence.
23. The second seriously aggravating feature of this case was that four victims of sexual touching and assaults of varying degrees were under 16, one was 14, and the others were over 16.
24. The third aggravating feature was that the appellant had used his position as a scuba-diving instructor to lure young boys into the sexual activity he engaged in with them. Having lured them, he groomed them and progressively with each engaged in more serious sexual activity. He was able to do so because he chose those who saw him as a trustworthy father figure. He also used the family setting in which he carried out these acts to make his victims feel at ease. He had a systematic approach to the way in which he lured them, and he then used his position as a senior officer of police to safeguard what he had done. He played on the fear of his victims of being exposed as gay. He was oblivious to the effect of his actions upon them.
25. The only mitigation was his age and his previous good character.

(c) The imposition of the life sentences

26. Against that background we turn to the issues relating to the imposition of the sentences of life imprisonment. There were two relevant types of life sentence. Subsequent to the decision of the trial judge, this court has given guidance first of all in R v Saunders and Others [2013] EWCA Crim 1027 and in Attorney General's Reference No 27 of 2013 ...R v Burinskas) [2014] EWCA Crim 334. It was clear at the time, although not set out as conveniently as can be seen from these two cases, that in respect of the count of anal rape of the wife the type of life sentence that was open to the judge was that that had been described in authorities such as R v Hodgson (1968) 53 Cr App R 113, R v Wilkinson (1985) 5 Cr App R 505, Attorney General's Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R(S) 261 and R v Chapman [2001] 1 Cr App R 77.
27. The law had been summarised by Lord Bingham CJ in Whittaker, where he said that two conditions had to be satisfied before a discretionary life sentence could be passed: first, the offender should have been convicted of a very serious offence; and secondly, there should be good grounds for believing that the offender may be a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. Lord Bingham went on to say that a discretionary life sentence should be passed only in the most exceptional circumstances.
28. Bearing in mind that in the period after the coming into force of the Criminal Justice Act 2003 such sentences had become extremely rare, it was incumbent upon counsel for the Crown to have reminded the judge of those authorities which set out the only permissible route for the passing of a life sentence in respect of the offence of anal rape.
29. As regards the sentence in respect of the anal rape of SD, which had occurred after the coming into force of the Criminal Justice Act 2003, but which fell to be sentenced after the amendments brought about to that Act by LASPO 2012, the detailed provisions of those amendments had to be carefully analysed by the judge. That analysis is set out in Burinskas and it is unnecessary for us to repeat it. But it would have required the judge to make various findings, including findings of dangerousness. Unfortunately - and for this Crown counsel must accept responsibility - no assistance was provided to the judge. When we enquired why no assistance had been provided we were informed that counsel had taken the view that the judge was experienced and did not need any help.
30. We must make clear that, however experienced a judge is, bearing in mind the span of time over which these offences had been committed and the significant changes that have been made by legislation, a judge needs help. It is deeply regrettable that the judge was not given that help by Crown counsel. In view of the seriousness of what has happened in this case, as we shall go on to describe, we will ask that the Director of Public Prosecutions to make sure that Crown counsel are reminded that in cases of such gravity, and which have spanned this period of time, assistance must be provided to the court, whatever view may be taken of the experience of the judge.
31. After the judge had said he had a life sentence in mind, he heard mitigation. His explanation for passing a life sentence is contained in one short paragraph in his sentencing remarks, where he said:

"It is ... clear to me ..., as Mr McKeveny said, that you have absolutely no capacity to appreciate the effect of your actions on other people, you are so wholly absorbed in getting what you want and need and when you want it, that you were wholly unwilling to control your sexual desires or change your exposure to young children so that you are not put in temptation. That makes the offence of repeated rape of [SD] so serious, taken with the other offences for which you have been convicted, that I am satisfied that a life sentence is appropriate. Your lack of understanding of the severe effects of your behaviour and your unwillingness to control your sexual urges confirms that a life sentence is appropriate."

The judge made no distinction between the circumstances pertaining to what had happened with the anal rape of the wife in the period before the coming into force of the Criminal Justice Act 2003 and the sentence which it was appropriate first to consider in respect of the sentence to be passed in the case of SD, namely the provisions of LASPO.

32. We have now carefully considered the position. It seems to us in respect of the anal rape of the appellant's wife that the case law epitomised in the decision of Lord Bingham CJ in Whittaker and the tests that had to be applied were not met. Nor, in our judgment, looking at the way in which sentences have first to be considered after the coming into force of LASPO, could the circumstances there required be satisfied. It is not necessary for us to repeat what is set out at paragraph 22 in Burinskas, but it is plain that the conditions were not met.
33. Next, we turn to consider whether in respect of the count of the anal rape of SD it would be appropriate to pass an extended sentence under the Criminal Justice Act (as amended by LASPO). The difficulty that we have is that the judge made no finding of dangerousness. We have heard powerful submissions from Mr Kent as to why there would have been difficulties in making such a finding. It is difficult for us in this court, not being the trial court, to make a finding that the judge did not make. Moreover, it would be necessary for us to consider the appellant's age, what had happened after the anal rapes of his wife prior to 2000 (there had been no repetition over a significant number of years), and the way in which his relationship with SD had come to an end. It therefore seems to us, given what had happened at the trial, that it would be unfair, unsafe and unjust for us now to set about making a finding of dangerousness on the material available to us.

(d) The appropriate determinate sentence

34. We therefore turn to consider what is the appropriate determinate sentence. The judge imposed the heaviest sentences on the count of anal rape of the appellant's wife and the count of the anal rape of SD. He ordered all other sentences to run concurrently. To try to set about re-sentencing across the board would be an exercise which this court, not having heard the evidence, would be reluctant to engage in. Furthermore, it seems to us that we can meet the justice of the case by looking at those two counts, taking into account all the other matters of which the appellant was convicted, and the repeated nature of the offending.
35. We concentrate essentially on the most serious offence, which was the anal rape of SD. The judge set the minimum term at sixteen years. He then increased that by eight years to reflect the anal rape of the appellant's wife, which he described as "behaviour of a remarkably similar nature", and reached the minimum term of 24 years.
36. It seems to us, when we look at the totality of the offending, and in particular the period of time in relation to which on the indictment before the judge SD had been raped by the appellant, that the judge took too severe a view. In particular he described SD as having been the appellant's "sex slave" for four years. That was an error. The indictment covered a period of two years, from SD's fifteenth to his seventeenth birthday. On the evidence before the court the acts of anal rape had not taken place until SD was 16. There was no count to cover any activity beyond the age of 17.
37. We take that by way of an example. It is our view that the approach that the judge adopted was one that was not justified by the indictment and which was, overall, too severe. Nonetheless, we take the view that, looking at the totality of the offending against SD, against the appellant's wife, and against all the other victims of his sexual misconduct, together with the possession of the indecent images, that the correct term to impose upon him is twenty years' imprisonment. We impose that sentence of twenty years' imprisonment on count 15 (the rape of SD). On count 6 (the anal rape of the appellant's wife), there will be a concurrent sentence of eight years' imprisonment. All the other sentences which the judge specified in court remain unchanged as concurrent sentences. The term, therefore, will be one of twenty years' imprisonment in substitution for the life sentences. The period of 276 days spent in custody on remand (or such as might be ascertained under the provisions of LASPO) will count towards that sentence.

(e) The failure to sentence on certain counts

38. There is one final matter with which we must deal. It is clear from the way in which the judge imposed sentence that he looked at the other counts in the indictment and passed concurrent sentences reflecting his view of the seriousness of the particular groups of conduct. For example, he said:

"... so far as the offences of penetration, digital or oral are concerned, that is [counts] 5, 10, 14, 16 and 20, there will be sentences of six years on each; they will be concurrent to each other. Sexual assaults on children, [counts] 12, 13 and 21, there will be a sentence of two and a half years on each, again all those sentences to run concurrent and concurrent to the six years. For the sexual assaults or attempted sexual assaults, that is 18, 19, 22 and 24, there will be sentences of eighteen months each to be concurrent and again concurrent to the six years."

39. The judge failed to mention or otherwise deal with four of the counts on the indictment - 3, 4, 7 and8. An explanation has been given by the judge in a letter, dated 23 September 2013, sent to this court in which he says:

"I was told by court staff later that they did not know how to deal with those counts which had not been specifically mentioned. I went through the indictment and identified which offence by category.

On a later hearing I believe (but am not sure) that I mentioned that fact to defence counsel and no objection was taken. I accept that I should have specifically referred to each of those counts by number, specifying the actual sentence within the 56 days allowed."

He said that he very much regretted not doing so.

40. Yet again Crown counsel failed in his duty to point out to the judge that he had not passed a sentence on those four counts. In a complicated indictment of the length we have mentioned it is possible that a mistake is made and something is forgotten. It is to be expected that Crown counsel would point that out there and then.
41. Secondly, it is in our judgment incumbent upon a judge if such an error is not (as it should have been) drawn to his attention by Crown counsel or by the clerk to the court, that when the error is drawn to his attention he should return to court and pronounce the sentences in open court. In this particular case it was necessary for those who were the victims of those counts to know what sentence the judge had passed. It was also important (although it has not arisen on the facts of this case) that in the event that the Court of Appeal quashes counts in the indictment, that the sentences that had been passed on the other counts were publicly and properly stated.
42. It is no part of the way in which justice is conducted in this country that any sentence of imprisonment is imposed other than in open court. The judiciary have been clear that sentences must be passed openly and transparently. That is of particular importance in cases of this kind.
43. We therefore draw to the attention of the judiciary and of counsel that if an error occurs - and errors of this kind can and do occur from time to time - they must be corrected in open court so that the public knows. We hope that in the future if such errors occur, the correction will be made in open court.

Conclusion

44. In the result, we have quashed the two sentences of life imprisonment and substituted on count 15 a determinate sentence of twenty years' imprisonment (less time on remand). To that extent, and to the extent we have indicated in respect of count 6 (the quashing of the life sentence and the substitution therefor of a concurrent determinate sentence of eight years' imprisonment), we allow the appeal. The appellant will therefore serve a total of 20 years imprisonment less time on remand.