England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 November 2014

1. LORD JUSTICE BEAN: On 31st March 2014, following a trial in the Crown Court at Taunton before His Honour Judge Ticehurst and a jury, the appellant was convicted on six counts of rape and three counts of assault by penetration, all of the same victim and all stated to have been "on or before 21st July 2008", at which point the victim was 10 years old. We shall call her "A". She is entitled to anonymity.
2. The significance of the date in the indictment is that it was when suspicions first arose about the defendant's behaviour towards A. He was interviewed and denied any improper behaviour. At that stage A had not told anyone more than that the defendant, a swimming instructor and a friend of her father's, had taken her swimming and got changed in the same cubicle as her afterwards, and also that he had asked to see her "top bits" and wanted to touch her there under clothing but that she had said no.
3. In 2012, A made far more substantial allegations against the appellant. These led to the trial to which we have referred, at which he was convicted on all nine charges against him.
4. The sole ground of appeal for which the single judge gave leave is that the trial judge erred in allowing the prosecution to admit in evidence the fact that the defendant had pleaded guilty on 2nd September 2009 to an offence committed on 22nd June 2008 of possessing an indecent photograph of a child for which he had been conditionally discharged for two years. The legal description of the offence does not adequately describe the offending item. The defendant had had on his computer a file containing a 49-minute film entitled "Daughter in Pleasure Lessons". It had seven sets of footage with different girls ranging in age from seven to 11 years, engaged in a number of sexual acts including penetrative sexual activity with an adult. None of these was A nor anyone connected with her.
5. In September 2009 the defendant's plea of guilty to this charge had been on a written basis which was extremely favourable to him. This was that he had inadvertently downloaded this file while attempting to download a Doctor Who television programme. He had tried to delete the pornographic file but had been unable to do so. A forensic computer expert's report submitted in evidence stated that the computer, which the police had seized at the time of the defendant's interview, contained nothing else of relevance and in particular no other child pornography.
6. The prosecution apparently did not challenge this account and the sentencing judge in 2009 did not seek to go behind it. The defendant was of previous good character: hence, no doubt, the conditional discharge.
7. The prosecution case summary in the much graver case which led to the trial in March this year was dated 4th October 2013. It included reference to the 2009 conviction. The first formal indication that the prosecution intended to apply to the trial judge to adduce that conviction as evidence of bad character was apparently given in or about December 2013 and responded to by the defence at the start of January 2014, nearly three months before the trial. However, the notice of application accompanied by material in support was apparently only served very shortly before the trial; and Mr Row, who appeared for the appellant at trial as he has before us, tells us that the 2009 defence expert's report was only served on him during the 2014 trial.
8. When the prosecution made their application to the judge at the outset of the trial, Mr Row quite reasonably pointed out that the application had been late and that some of the supporting material had still not been served. It was accordingly agreed that the bad character application would be left until the end or almost the end of the prosecution evidence.
9. When the application was made the main ground of objection by the defence was that the prejudicial effect of admitting details of the 2009 conviction outweighed its probative value. There were subsidiary grounds that because of the loss of the Crown Prosecution Service file from 2008 relating to the child pornography charge, the supporting material was incomplete, and the defence were prevented from arguing their case as fully as they would wish to do so in relation to that evidence. The subsidiary points, as we shall see, were dealt with by the very careful terms in which admissions were drafted and put before the jury. These included a summary of the points made by the defence expert in the pornography case showing the defendant's actions in a very favourable light. But on the point of principle, Mr Coombe, who also appeared at trial, as he has before us, on behalf of the prosecution, submitted that if A had made detailed disclosures in 2008 the child pornography charge would certainly have been placed before the jury at the trial of the charges concerning A, whether as an additional count or as evidence of misconduct, and that to prevent the 2014 jury from hearing about the material would be unfair to the prosecution and contrary to the interests of justice.
10. Judge Ticehurst, in his ruling of 26th March 2014 concerning the bad character application, noted that the issue in the trial before him was whether or not A was telling the truth. The defence case was that her allegations were fabricated and that she had been coerced into making false allegations by her father and stepmother. He considered that the material which Mr Coombe sought to adduce was relevant and accepted the submission that, had A made her allegations against the appellant at the time, the material would have been before the jury.
11. He made the following qualifications to the ruling that the prosecution could place the material before the jury: the evidence was to be introduced by way of written admissions; the jury would be told in those admissions about the basis of plea; they would also be told what the expert had reported and would be told that a conditional discharge was the least or second least serious sentence that it is possible to receive. The judge said at the end of his ruling that he had reached his decision "with some reluctance and hesitation given the different balancing exercise I have had to perform in exercising my discretion."
12. In summing-up, he said:

"You heard that the defendant has a previous conviction. On 2nd September 2009 he pleaded guilty to the possession of an indecent image of a child. He received a sentence of a Conditional Discharge for two years. It is almost the least sentence that anyone can receive in a criminal court. In other words, he was effectively told that if he did not commit any other offence over the next two years he would hear no more about it.

In the old days juries were usually not told about a defendant's previous convictions. This was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight than it deserved. In this case the reason you have heard about it is because it is important evidence in relation to a matter that is in issue or in dispute between the prosecution and the defence.

The defendant says A is lying to you; he did not sexually abuse her in any way at all. You are going to have to decide who is telling you the truth. The fact that the defendant has been convicted of an offence that tends to show that he may have an unhealthy interest in young girls may help you resolve that question, but if you think his explanation that he gave to you is, or might be true then you should ignore the fact of and the existence of this conviction altogether.

As you heard, the defendant explained the circumstances in which this material came to be found on his computer. He said the material had been inadvertently downloaded with other material he was looking for on the internet, in this case a Dr Who episode. He told you that the material comes in a compressed form but that there is no way of knowing for certain exactly what is being downloaded until you have received it. It was only after the material had been downloaded and he opened it that he discovered what it was. He tried, unsuccessfully, to delete it from his computer, he was unable to do so, and, therefore, to ensure that his children did not accidentally find such images he took steps, to use his words, to make it invisible. He said he hid the file so no one else would be able to find it.

This explanation was, it seems, accepted by the prosecution at the time and also, it seems, by the judge, having regard to the sentence that the defendant received. As I have said, a Conditional Discharge is almost the lightest sentence that anyone appearing before a criminal court can receive.

Of course, the defendant's previous conviction is only background. It does not tell you whether he has committed the offences with which he is now charged in this case. What really matters is the evidence that you have heard in relation to these offences, so be careful not to be unfairly prejudiced against the defence by what you have heard about his previous conviction.

In the present case you heard evidence from A that the defendant would take photographs of her whilst she was naked or involved in sexual activity with the defendant in his bedroom. She said that she saw him download photographs onto his computer. The defendant says this is all a pack of lies, A has made it all up; he never photographed her or abused her sexually in any way.

You can only convict the defendant if you are sure that it is A who has been telling you the truth. What you should not do is to decide that the defendant had these images, that he accidentally said he downloaded, for his own sexual gratification and then decide that he must therefore have abused A. What you should do is to consider all of the evidence, including the fact that you know the defendant had these indecent images in his possession, that he admitted having them in his possession, and his explanation given by him both at the time and to you now, and to consider all of this as part of the evidence overall. It may assist you in reaching your decision, it may not, that will be a matter for you, but what you should not do is convict the defendant simply because you are aware that he has this previous conviction.

The defendant says, for his part, that whatever he may have done in the past, and he provided you with a detailed explanation for that behaviour, A's evidence is simply invention. It is for you to decide the extent to which, if at all, the defendant's previous conviction assists you in deciding whether A has been telling you the truth."

13. Before us, Mr Row has submitted that the judge was wrong to admit the previous conviction and that the terms in which he referred to it in the summing-up amounted to an invitation to the jury, if they saw fit, to go behind the basis of plea. This, he submits, caused serious prejudice to the defendant which calls into question the safety of the conviction.
14. We deal first with the subsidiary argument as to lateness. We are not impressed by it. The defence had had several months' notice that the prosecution intended to make the 2009 conviction part of their case. Either the judge's ruling was right in principle or it was not. If it was not the subsidiary arguments fall away. But if it was right, we do not see how the defence would have been helped by more evidence in support, nor by more time to prepare. Mr Row has said that he did not seek an adjournment, quite rightly in our view - it would have been pointless and extremely upsetting to both the complainant and the defendant. Everyone wanted to get on with the case. The admissions placed before the jury included, as we have said, a summary of all the principal points made by the defence computer expert in 2009 as well as the defendant's basis of plea and of course the defendant had and took the opportunity to tell the jury in 2014 when he gave evidence what his side of the story was. We therefore reject the lateness argument and turn to the central issue of principle.
15. Mr Row is right to say that the summing-up amounted to an indication to the 2014 jury that it was open to them to revisit the basis of the plea to the child pornography defence. But in our view the jury were entitled to do so. In the case of R v Z [2000] 2 AC 283 the defendant on a charge of rape had been tried and acquitted of the rape of different women on three previous occasions in three separate trials. The prosecution wished to call those three complainants to give similar fact evidence in support of the new charge. The House of Lords held that the purpose for which their evidence was sought to be adduced at the fourth trial was not to show that the defendant had been guilty on those previous occasions, but to show by similar fact evidence that he was guilty of the offence for which he was being tried. We think there is an analogy with the present case. The purpose for which Mr Coombe sought to adduce the child pornography conviction was to demonstrate that the defendant had an inappropriate sexual interest in young girls. This might, if the jury thought fit, support the prosecution case that A was telling the truth about the appellant's inappropriate interest in her and he was not.
16. It is right to say that in Z their Lordships added that the evidence was admissible subject to the trial judge's discretion to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984, after weighing its prejudicial effect against its probative force. But it is difficult to imagine more overwhelmingly prejudicial evidence than evidence of three previous acquittals on similar facts. If their Lordships were prepared to approve that in principle in Z, it seems to us impossible to criticise the judge's exercise of discretion in the present case.
17. The matter can also be tested in this way. Suppose the outcome of the investigation into the appellant's downloading of child pornography had been that the Crown Prosecution Service decided not to prosecute at all, whether because they were not in a position to contradict his argument supported by expert evidence that the downloading had been accidental, or because it was considered not to be in the public interest to proceed further against a man of good character, or for both reasons. The prosecution would in our view have been justified in applying to Judge Ticehurst at the 2014 trial of the charges relating to A, to admit in evidence the fact that the pornographic file had been found on the defendant's computer at the same time, the summer of 2008, as he had been committing the alleged offences against A. The pornographic file, unless satisfactorily explained by the defendant, could be considered convincing evidence of an inappropriate sexual interest in young girls. It was relevant to the central issue at the 2014 trial. The fact that no charges had been brought in respect of it would not have prevented the judge from exercising his discretion to admit it as evidence of misconduct or reprehensible behaviour under the bad character provisions of the Criminal Justice Act 2003. It is difficult to see why the position should be any different where the pornography charge was brought before a court but the defendant's explanation was effectively accepted, leading to a very light penalty. We also accept, as the judge did, Mr Coombs' submission that if the prosecution who dealt with the child pornography offence had been aware of the detailed and grave allegations which A was to make three years later, they would never have accepted his basis of plea and the matter would have been dealt with entirely differently.
18. The acceptance or at least the non-contradiction of the basis of plea in 2009 does not create any kind of issue estoppel between the Crown and the defendant, since no such principle exists in English criminal law. This is not a double jeopardy case, any more than Z was. The appellant cannot of course be re-sentenced for the child pornography offence. But Judge Ticehurst was right to rule that it could be admitted, as evidence of misconduct, in the trial which is the subject of this appeal, and was entitled to exercise his discretion as he did. The appellant's conviction for the offences against A is safe.
19. For these reasons, the appeal is dismissed.