England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOLTON
HIS HONOUR JUDGE DAVIES
T20120274

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/07/2014

Lord Justice Elias :

1. The appellant was convicted unanimously at the Crown Court at Bolton before HH Judge Davies of ten counts of indecent assault (counts 1-5, 7, 9, 11,13 and 15) and four counts of indecency with a child (counts 10, 12, 14 and 16). These were all specimen counts reflecting, it was alleged, regular offending. Counts 1 to 8 involved offences occurring at the family house in Elizabeth Street and counts 9-16 in a different house in Elmwood Grove after the family had moved.
2. On 26th April 2013 he was sentenced by the judge to 6 years on all the indecent assaults concurrent with each other, save for count 9 where the sentence was 6 years consecutive; and 6 years concurrent on each of the indecency with a child counts. The total sentence was therefore 12 years. A sexual offences prevention order was also imposed.
3. He was acquitted by the jury on the judge's direction of counts 6 and 8 (indecency with a child) and 17 (indecent assault).
4. He appeals against conviction by leave of the single judge who gave permission for the appeal to go forward on two grounds. The first was that the judge's summing up on the burden and standard of proof was defective. The second was that this was an exceptional case where the court should have a lurking doubt about the safety of the conviction. In fact at the hearing itself the emphasis of the appeal shifted. Ms Gerry QC, who was counsel for the appellant before us but was not trial counsel, submitted essentially that there were a number of failings in the summing up whose cumulative effect was that it was not a fair or balanced summing up and failed to ensure that the defendant's case was fully and fairly placed before the jury. She did also contend that the judge was wrong not to stop the case at half time (notwithstanding that he had not been asked to do so) and she advanced the lurking doubt argument. These last two points were not pressed with much conviction and it is sufficient to say that we think there is no merit in either argument.
5. The appeal was previously listed on 10^th April 2014 before the full court (Sharp LJ presiding). The full court gave directions for transcripts of all the evidence given at trial to be provided together with closing speeches.

The facts

6. On 9^th September 2011 the complainant, GS, made a complaint to police alleging historic sexual abuse by the appellant. The abuse was said to have occurred within the confines of a step-family environment. She said that the abuse started when she was at least 3 years of age and continued for almost ten years to when she was twelve and a half. The appellant would rub her vagina and insert his finger while she was in bed. This behaviour became rougher as she got older. In October 1997 the family moved from Elizabeth Street to a house in Elmworth Grove in Farnsworth where the appellant would place her hand on his penis and she would masturbate him to ejaculation. He would perform cunnilingus on her. The majority of the offending, she said, took place when she was in her own bed at night but some occurred in the appellant's bed (which he shared with her mother) on a Saturday morning when her mother was at work. The abuse, she said, lasted approximately 10 years, and would happen as often as four times a week, each occasion lasting up to 30 to 40 minutes. At trial the prosecution called no forensic or medical evidence.
7. In evidence the appellant, a man of previous good character, asserted that the complaints were false. This was consistent with his denial when interviewed. He was at a loss as to explain why false allegations should have been made although he put forward certain possible explanations. He suggested that they could have been made to deflect the attention of Social Services away from her. They had some concerns about the complainant's children, Isaac and Phoenix because of alleged instances of domestic violence by her boyfriend. He also suggested that she might have been upset because he did not lend her money when requested; or possibly because he had missed sending her or her child a card on their birthdays.
8. The appellant's natural daughter, Rachel West, and son, Nicholas West (junior) gave evidence. Rachel, who was a year older than GS and had always been close to the complainant before the allegations, said she had neither seen nor heard anything suggestive of any problems or abuse between her father and the complainant. Nicholas also confirmed that he could recall nothing that suggested that the complainant was being abused while they shared a bed room. Nor did the complainant's mother or other step brother notice anything. This was despite the fact that until they moved to Farnsworth they lived together in a small two up two down house where, as the claimant accepted, there was no privacy. The complainant's mother also gave evidence and said that she thought that GS had a very good relationship with the appellant. Indeed, GS kept in contact with him after the alleged offences had ended. She went on holiday with the defendant, Nicholas and a friend of hers to Ayr in Scotland when she was 15 or so. Later she would visit him regularly for Sunday lunch usually when Rachel was present. She maintained this contact even during a period of some five years when she was not in contact with her own mother.

Burden and standard of proof

9. A major aspect of the appeal focuses on the way in which the judge directed the jury on the burden and standard of proof. The judge referred to the burden of proof at page 4A of the summing up in this way:

"Whilst it is true – as I will come to in a moment – that the prosecution bear the burden of proof, the defendant has given evidence and although he does not have to prove anything, his evidence is evidence in the case."

10. The judge did not in fact return to this point until the end of the summing up. He had been dealing with the question whether the complainant may have had a motive for lying about these allegations and then he said this:

"… So you are entitled to consider this evidence and her evidence and you are entitled to consider the very thorny question why is she lying, ladies and gentlemen. There seems to be no grudge between G and Mr West. G has risked her oldest friendship once she has complained. If you reject the reason provided by Mr West which is in itself, as he concedes, speculative and guesswork, ladies and gentlemen, do not rush to judgment. Just because you think his theory was wrong does not mean to say that he necessarily is lying and that she is telling the truth. Remember, ladies and gentlemen; when you consider the question why is she lying remember it is the prosecution who have to prove that she is telling the truth. He does not have to prove that she is lying or why she is lying. He does not have to present any motivation as to why she is lying, because the burden of proof is on the prosecution, ladies and gentlemen, and in order to convict you have to be sure that G is telling the truth and that is what you must be looking at; is she telling the truth, ladies and gentlemen? Why is she lying may be the work of guesswork, he may not give a very good reason, but he does not have to give any reason, ladies and gentlemen; all right?"

11. The appellant submits that this direction was wholly inadequate. Although correct so far as it goes, it is given almost as an aside when focusing on motive; it did not adequately direct the jury on this cardinal legal principle. It should have been a clear and separate direction early on in the summing up so that the jury had it firmly in mind when the judge was recounting the material evidence.
12. Counsel identified various passages earlier in the summing up where the judge had given the impression that the critical issue was whether the jury believed the complainant or the defendant, without any indication that the jury had to be sure that the offences had been committed before convicting. The first was as follows:

"You decide who is telling the truth on the reliability and accuracy of the evidence and you look at all the evidence in the case."

Then later:

"Consider the evidence on each count separately, ladies and gentlemen. That may seem a rather academic exercise because you decide who is telling the truth and they all relate to G, they all relate to the defendant, but you must look at each count separately…"

And then:

"The question here ladies and gentlemen, is whether the indecent assault happened or not, but if G is right there was a deliberate unlawful touching in circumstances of indecency. The issue for you on those counts of indecent assault is: did that happen?"

13. We agree that without a direction on the standard of proof, these observations could well give the jury the impression that they simply had to decide who to believe; was it more likely that the complainant was telling the truth, or the defendant? In fact the jury had to ask itself if they were sure that the defendant was guilty, and that meant that they had to be sure that the complainant was telling the truth. Anything less than that demanded an acquittal.
14. The judge could in the first two examples have told the jury that they must be sure that the complainant was telling the truth; or in the last extract, that the issue was whether the jury was sure that the indecent assaults happened. Had that been done, it would have been less important that the formal direction on the standard of proof only came at the end of the summing up. But we are not satisfied that the direction at that late stage was sufficient to overcome the impression the jury may have had from the earlier statements that they had to plump for either the defendant or the complainant.
15. Moreover, even when the direction is finally given the judge summarised the critical question which the jury should ask itself in the following way:

"Is she telling the truth, ladies and gentlemen?"

This fails to tell the jury that the question is whether they are sure that she is telling the truth; it does not reinforce in the jury's mind the rigorous standard of proof vital in a criminal prosecution. Moreover, it would have been helpful if the judge had also told the jury that they could not be sure if they thought that the appellant himself might be telling the truth, although we do not say that the failure to spell that out would of itself have rendered the verdicts unsafe if a clear direction on the standard of proof had been given at the appropriate time.

16. Overall, therefore, we are left with the impression that the jury may not have fully taken on board the significance of the standard of proof.

Delay

17. Our concerns are compounded by the way in which the judge dealt with the issue of delay. It is a trite observation that delay creates particular difficulties for both prosecution and defence in a case such as this: memories fade and potential evidence may be lost or destroyed. But given that the burden is on the prosecution to prove their case beyond reasonable doubt, it is incumbent on the judge to ensure that the jury are fully appraised of the way in which the problem of delay may have prejudiced the defendant in particular. The point was put with much force by Sir Christopher Holland giving the judgment of the Court (Moses LJ, Cranston J and Sir Christopher Holland) in JS v Regina [2008] EWCA Crim 2788. That was another sex case although the delay was even longer:

"As at trial the Appellant was a 63 year old man of good character. He was confronted with very serious allegations that had been held back for between 18 and 37 years. Before 2005 he had had no forewarning of the advancement of any such and this is not a case in which silence had been secured by ongoing threats. A trial that was fair to him and to the complainants constituted a forensic challenge. In our judgment the guilty verdicts could only be seen to be safe if they were based upon adequate evidence followed by rigorous directions and guidance sufficient to ensure that the jury had delay and the potential for injustice as an operative component in their decision making. It is, of course, by way of the summing up that the judge guides and directs the approach a jury should adopt in cases of historic allegations of sexual abuse. Since a jury gives no reasons for its conclusions, it is only by fair and pertinent directions, which confront the problems of delay, that there can be sufficient assurance that the convictions resulted from a rational approach, with the moral authority that the burden and standard of proof are designed to achieve. It is in this light that we have to assess that which was put before this jury. By way of guidance the trial judge had the benefit of the JSB Specimen Directions. The Direction which related to the impact of the delay was in part specifically based upon a general proposition set out by this court in R v Percival (unreported) 19^th June 1998:

"Delay of up to 32 years must threaten the fairness of any criminal trial, not least when the Crown case depends on late complaint and oral testimony, see R v Telford Justices ex p. Badhan (1991) 93 Cr. App. R. 171 at 179. True, a developing concern with and, understanding of sexual abuse is reflected in a growing experience of cases featuring delays that at one time would have been regarded as intolerable. That experience and the underlying problem of unreported abuse has served to encourage experienced judges to be more liberal in their concept of what is possible by way of a fair trial in the face of delay, but, as we think there is a price, namely safeguarding the Defendant from unacceptable resultant prejudice by a "proactive" approach in terms of directions. Before a conviction following such a trial can appear to be safe, it is necessary to be satisfied that the judge has confronted the jury with the fact of delay and its potential impact on the formulation and conduct of the defence and on the Prosecution's fulfilment of the burden of proof. That proposition was subsequently endorsed by this Court in R v Lloyd (unreported) 30^th November 1998 and in R v M (2000) 1 Cr. App R 49, albeit that by way of both these latter decisions there was emphasis upon the need to tailor the summing up to fit the particular circumstances of a case."

18. It is true that as JS notes, in R(M) Rose LJ stated that the terms of any direction will depend on the circumstances:

"In a case where there have been many years of delay between the alleged offences and trial, a clear warning will be desirable as to the impact which this may have had on the memories of witnesses and as to the difficulties which may have resulted for the defence. The precise terms of that warning and its relationship to the burden and standard of proof can be left to the good sense of trial judges …."

19. The judge in this case gave the jury the following direction:

"Now, talking about the allegations on Counts 1 to 5 and Count 7, these allegations happened, G says, from the age of three and a half until they moved in or around October 1997. They are old allegations, ladies and gentlemen and that is important in a number of ways. The passage of time can affect the memories of witnesses, that is common sense and it applies to both sides. A witness' inability to recall detail may have an effect on that witness' reliability, on their ability to deal with challenging evidence and challenging questions or to provide evidence that ordinarily would support their case and one would expect to be available.

We are talking almost 20 years here, ladies and gentlemen. Where a witness is describing events which happened to her when she was as young as three or four or five you have to assess the reliability and accuracy of that memory when many children do not have any memories, still less detailed memories that go back to when they were as young. Also you have to think about what would the evidence have been had these complaints been made at the time, ladies and gentlemen, when she was, for example, five? Well, she would have been taken off to a doctor to have a look at her to see if there is any medical evidence of a very young child having a finger inserted into her vagina. There would have been perhaps evidence that the defence would have asked about blood on knickers or nightwear or bedding, for example, and there may well, as Mr James says to you, have been evidence of a forensic nature. That has been denied to you. Whether that evidence would have actually supported the prosecution case or supported the defence case we do not know, but you have to think about that because that is an example of the impact delay has on cases of this nature."

20. In our judgment, whilst this does fairly indicate the difficulties in assessing the reliability of the evidence of witnesses, particularly young children, after such a length of time, it suggests that the disadvantages apply equally to the prosecution and defence alike. That is not, in our view, adequate given that the burden lies on the prosecution. In JS Sir Christopher Holland dealt with a similar weakness in the summing up as follows:

"At no stage did the judge draw the jury's attention to the potential impact of delay upon the burden and standard of proof. It is rigorous attention to the latter that ultimately secures a trial that is fair: it is for the Prosecution to surmount the impact of delay upon the cogency of the evidence."

21. In our judgment, this was a case where the judge ought to have emphasised that if the jury considered that the defendant may have been prejudiced by the delay, they ought to have regard to that fact when considering whether the prosecution had made them sure of the defendant's guilt.
22. There is an additional point to make about this direction. The judge is telling the jury that they "have to think about" the fact that it cannot be known whether the evidence would have assisted prosecution or defence. That might certainly suggest to the jury that they were being invited to form a view as to which party is more likely to have been prejudiced. Although we have no doubt that the judge did not intend that the jury should speculate in that way, that is a perfectly sensible interpretation of his direction, notwithstanding that elsewhere he has told them that they must not speculate where there is a lack of evidence.
23. There are three further areas where we have concerns about the summing up. Whilst in our view they would not on their own have rendered the verdicts unsafe, they reinforce our doubts about the safety of the conviction.
24. First, when dealing with the reasons why there had been the delay in reporting these offences, the judge did not point out that this was not a case where the defendant had threatened or otherwise improperly persuaded the complainant that she should keep these offences a secret.
25. Second, when dealing with the issue of the defendant's good character, it would have been desirable for the judge to have reminded the jury that there had been no complaints of any sexual (or indeed any other wrongdoing) in the period of ten years or so since the alleged offences against the complainant.
26. Third, there were features of this case which certainly assisted the defence case. First, the fact that notwithstanding the hundreds of times the alleged offences were alleged to have occurred, no-one had heard anything or apparently becomes suspicious of any untoward behaviour by the defendant, notwithstanding that the original offences in particular were committed in a very small house where sound travelled easily and where there was no privacy. Second, the fact that the complainant voluntarily remained in close contact with the defendant into her adulthood. Third, that she delayed for so many years before making the allegations. Fourth, that this was notwithstanding the fact that she had not been threatened or prevailed upon by the defendant in any way to stay silent. Finally, his positive good character and the lack of any further offending since these alleged offences had ceased. The judge did at various points in the summing up deal with the first three matters but as we have said, he did not refer fully to points four and five.
27. In our view, in a case like this, where there is no independent supporting evidence and everything turns on the veracity of the complainant with respect to historic offences, it was highly desirable that the judge should, albeit briefly, have brought these points in the defendant's case together so that if the jury convicted, they would do so with a full understanding of the factors which might undermine the prosecution case.
28. For these reasons we consider that the summing up was defective and we cannot say that the verdicts would necessarily have been the same had an appropriate summing up been given. Accordingly, we quash all the convictions.