England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
His Honour Judge Carr
T20127322/T20130119

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/04/2014

Sir Brian Leveson P:

1. On 25 January 2013, in the Crown Court at Wood Green before His Honour Judge Carr and a jury, the appellant was convicted (by a majority of 10:2) of two counts of sexual assault; he was acquitted of two further counts of sexual assault and rape. On 5 February 2013 (before the same Court), he pleaded guilty to possession of extreme pornographic images and on 8 March was sentenced to 12 months and 3 years imprisonment respectively for the two counts of sexual assault (to run concurrently) and a consecutive term of 4 months for the possession offence making 3 years 4 months imprisonment in all. Appropriate ancillary orders were made. With leave of the single judge, he appealed against conviction in relation to the first two offences and sentence. Having heard the appeals, we dismissed both: we now provide our reasons.
2. The facts can be summarised comparatively shortly. The appellant is the uncle of the complainant C being married to her aunt. When C was aged 12 years, during a sleepover, she made an allegation to her friend, V, that the appellant had sexually abused her when she had been aged 8 or 9 years. V told a mutual friend, CF, whereupon the two friends reported the allegation to their school. On 2 March 2012, C gave a full ABE interview to police setting out the allegations.
3. In short, the prosecution alleged that the appellant sexually assaulted the complainant when she was aged 8 or 9 years, whilst he was in her bedroom helping her to decorate it, by placing his hand on her thigh and keeping it there (Count 1 of which he was convicted). C did not make a complaint at that stage and it was alleged that, when she was sleeping at her aunt's house, the appellant would try to remove her underwear, while she was sleeping and awake, including when she was sleeping between her aunt and the appellant (Counts 2 and 3 of which he was acquitted). On one occasion, however, at night, when C was sleeping alone, he then went to her bed, undressed them both and vaginally raped her (Count 4). The indictment included an alternative of sexual assault in respect of this complaint (Count 5) and in the event, the appellant was acquitted of rape but convicted of sexual assault.
4. In addition to C's evidence, the prosecution relied on the obvious distress she was in when the allegations were made and/or repeated (as they were to her mother, the school and the police), including in evidence, to show evidence of recent complaint and in support of her credibility. It was suggested that her credibility was further enhanced because she candidly admitted that she could not remember the detail of all the offences/or embellish her allegations including her admission that she did not see the appellant pull her knickers down on one of the occasions.
5. C was also supported by evidence from her aunt, to the effect that there had been a single occasion when, because of an argument between the aunt and the appellant, C slept in a room on her own. Finally, the prosecution further relied on the cross-admissibility of the counts to show that the appellant had a sexual interest in C to prove one of the counts of sexual assault (the removal of the complainant's underwear while she was asleep).
6. The defence case, on the other hand, was that the allegations were fabricated and that the appellant had never indecently assaulted C. He denied ever going to her bedroom at night or doing anything inappropriate or ever being alone with her. He gave evidence in his own defence which was consistent with his police interview to like effect and he relied on his previous good character. The defence also pointed to the weaknesses in C's evidence (including her other admitted lie and extraordinary allegation made to her friend V that the applicant had also kidnapped her when she was two, put her in the boot of his car and driven her to Scotland) and to the lack of any DNA or other medical evidence to support the allegations.
7. The issues for the jury, therefore, were straightforward and depended on a resolution of an acute conflict of evidence between C and the appellant. Could the jury be sure, first, that each or any of the assaults had happened as C alleged and, second, that (as C alleged) actual penetration had taken place in the C's bed.
8. As part of the defence, Miss Abigail Bache, for the appellant, sought to introduce evidence from V about what were alleged to be lies told by C about her previous sexual experience, about her having taken the morning after pill, that she had sent pictures of herself while naked to other boys. It was said that these lies were told at the first time the allegation of sexual assault against the appellant were made. Miss Bache also wished to adduce the evidence of CF that C had told her about having had sex with boys (although it was recognised that CF did not understand what was meant by the phrase 'have sex') and that CF considered that C would lie to get attention.
9. During a Pre-Trial Review on the working day preceding the trial, the judge intimated that he did not consider that the evidence of both V and CF was admissible on the basis that it was either bad character or irrelevant. As a result there was detailed argument which involved a consideration of s. 41 of the Youth Justice and Criminal Justice Act 1999 ("the 1999 Act") and of s. 100 of the Criminal Justice Act 2003 ("the 2003 Act").
10. Essentially, Miss Bache argued that the evidence was admissible not as evidence of prior sexual conduct, because she did not seek to rely on it as truthful (C having said in her ABE interview that there were rumours of her sexual activity with boys going round the school which were untrue) but because it was dishonest attention seeking. She recognised that the foundation of the argument was what might otherwise be embellishment and bragging between 12 year old girls (or tittle tattle) but argued that it involved lies about intimate matters coming at the time of the complaint about her uncle and could serve as a diversion from scepticism that she may have been facing from her friends. The 1999 Act, therefore, was not engaged, although s. 100(1)(c) of the 2003 Act was.
11. Judge Carr ruled that although, essentially, Miss Bache was pursuing a bad character application, out of an excess of caution he would also treat it as an application under s. 41 of the 1999 Act, particularly given the age of the young witnesses. He considered, however, that there was no evidence that the complainant had lied about being sexually active and that, in any event, the girls may have been discussing low level sexual contact and not sexual intercourse. He concluded that the girls' discussions about prior sexual activity of unknown origin and truth could not impact upon whether C had lied about the specific allegations of sexual abuse made against the appellant.
12. The judge went on to consider that even if the allegations were true, it would not assist the appellant's defence and would not be permissible under s. 41: C had received sex education but the term "sex" was used by the girls as a very general term. He did, however, admit the reference to C saying that she had also been kidnapped by an uncle, made at the same time as the allegations against the appellant. This, he said, would allow the defence to make the same points regarding her credibility.
13. During the course of the evidence, C's ABE interview had not been edited and, in it, she had accepted that there had been rumours about her having sex with boys but that they were untrue. He spoke of the evidence as "based on rumour and innuendo conducted amongst 12 year olds at school" and declined to revisit his ruling: it was impossible to extract it or stop and start the tape without giving rise to greater prejudice to the appellant and, as a single comment in a long interview "was best left as was". Further, looking at all the statements, he considered it far from clear that the use by the girls of the word 'sex' meant vaginal intercourse, V and CF defining sex in a way that did not include penetrative vaginal sex. He dealt specifically with the allegation of the use of morning after pill and observed that, on its own, he would not have found it of substantial probative value on a substantially important issue.
14. This ruling forms the basis of the main plank on which this appeal is based. Miss Bache argues forcefully and with skill that the judge should have permitted cross examination of C so as to expose the fact that contemporaneous with the complaint about the appellant, she had also made false assertions about having had sex with lots of boys. Although Judge Carr had said that there was no evidence that these stories were untrue, in fact, her ABE transcript identified that there had been rumours about her at school about her having had sex with loads of boys and having taken the morning after pill and, when asked if the rumours were true, stated that they were not. Relying on R v. V [2006] EWCA Crim 1901, referring to R v BT & MH [2002] Cr App R 22, she pointed to the observation (at para 21) that "cross examination genuinely directed towards establishing that the complainant has made a previous false complaint about a sexual matter is outside s. 41, if it goes to the lies rather than to the sexual behaviour itself".
15. Mr Scott Brady for the Crown makes the point that the denial of the truth of the rumours is the only point on which the appellant can rely: she was not asked in that interview whether she had told her friends about any sexual experience, what she had told them or whether precisely what she had told them was untrue. He argues that conversations between young pre-teenage girls about sex in which one of them either lied or exaggerated are of little probative value and certainly not of substantial probative value in relation to the question whether she might be lying about the conduct of her uncle. Although it was not right to say that there was no evidence that what she had said to her friends was untrue (because of the answer in the ABE interview), that evidence was of very limited value and insufficient to have substantial probative value in relation to a matter which is of substantial importance.
16. It is unnecessary to recite s. 100(1)(b) of the 2003 Act but sufficient to note that, as Professor J. R. Spencer has observed in his work "Evidence of Bad Character", that the purpose of the provision was to remove from the criminal trial the right to introduce by cross examination old, or irrelevant, or trivial behaviour in an attempt unfairly to diminish in the eyes of the tribunal of fact the standing of the witness. As Pitchford LJ observed in R v Brewster & Cromwell [2010] EWCA Crim 1194, (2010) 2 Cr App R 20 (at para. 22):

"It seems to us that the judge's task will be to evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value on the issue of creditworthiness."

17. It is of the first importance to consider the context and to underline the age of C and her friends (one of whom demonstrated that she had no real understanding of what sexual intercourse was) and to exercise particular care when considering whether the evidence did, in fact, have substantial probative value. This is not a case of a false complaint about a sexual matter: there is no suggestion either in what C said to her friends or in the rumours that she was ever complaining about the activities of anyone else other than the appellant. Further, precisely what, if any, sexual experience that C might have had could never be an appropriate area of investigation (which is likely to have been the effect of permitting this line of cross examination bearing in mind the extremely generalised nature of the available evidence of lack of truthfulness). In our judgment, the judge was fully entitled to reach the conclusion that this material did not satisfy the test and should not be admitted. This ground of appeal therefore failed.
18. The trial then proceeded to its conclusion and the second ground of appeal (which Miss Bache accepted was of less cogency although she argued that it was sufficient to undermine the safety of the conviction) concerned the way in which the judge summed up the case. In short, she submits that although the judge had made it clear that the facts were for the jury and that any view which he appeared to suggest should be ignored if the jury disagreed with it, he had suggested reasons why, because of her age and lapse of time, C might not have been able to provide detail or be confused without ever putting the defence contention that these features might be a consequence of the fact that she was not telling the truth. It is also argued that he did not remind them of the salient points of the defence case.
19. There is no doubt that the judge devoted more time to the evidence of C than to that of the appellant but given that his defence was straightforward (it did not happen and C is not telling the truth), it is not surprising that he focussed on that question. In that regard, he reminded the jury that she had admitted lying about the kidnap. He certainly reminded them of the appellant's evidence making it clear that he said that nothing had occurred between C and him that was open to misunderstanding or misinterpretation: "her evidence was an out and out lie".
20. Although the judge was bound fairly to reflect the evidence in the case, the trial was not, of course, limited to the summing up. The jury had heard the evidence and heard speeches from both Mr Brady for the Crown and Miss Bache for the defence putting their respective contentions. It is beyond doubt that the jury fully understood the issues in the case and the nature of the conflict between C and the appellant: indeed, they acquitted the appellant entirely in relation to two of the allegations that he faced and convicted of the alternative offence of sexual assault, acquitting him of the more serious count of rape. We do not accept that the approach of the judge in his summing up undermined the safety of these convictions and, for these reasons, the appeal against conviction failed.
21. In those circumstances, we turned to sentence. The appellant was aged 30 at the time of conviction and of previous good character. In a pre-sentence report, he continued emphatically to deny the allegations and expressed anger at the system that had led to his conviction. He was assessed as presenting as potentially a medium to high risk of sexual harm to children although the likelihood of his reoffending was considered to be as low.
22. The judge expressed himself satisfied on the evidence that the sexual touching of C's thigh at the age of 8-9 years old was a test by the appellant to determine whether she would make a complaint and was not so sexual with the result that the appellant could explain it by an innocent misinterpretation whilst decorating. Following her failure to complain, the second more serious assault then occurred and did so when the complainant was in bed alone. They were both undressed and the judge considered it to be beyond credibility that the appellant's genitals had not contacted with C, although penetration was not established, the jury having acquitted of rape.
23. The Judge placed the offending in the second category of offences and took into account the appellant's lack of remorse and victim empathy, his impeccable good character (save for the possession of extreme pornographic images). It was in those circumstances that the total sentence of 3 years imprisonment was imposed along with a consecutive term of 4 months imprisonment for the possession of the extreme pornography offence (of which there was a significant amount). No complaint is made of this additional sentence.
24. Pursuing the appeal against sentence, Miss Bache argues that the Judge sentenced the appellant on an incorrect factual basis, there being no justification for the inference that he drew of genital contact, the jury having acquitted of rape: she had complained of the latter offence in the clearest terms which left no room for genital conduct short of rape. As a result, the offence should have been considered within a lower category within the guideline issued by the Sentencing Guidelines Council so as to merit no more than a term of 6 months imprisonment. She also argued that the 12 month concurrent sentence for the initial offence was manifestly excessive for what was a relatively modest assault.
25. We do not agree. The judge was clearly not entitled to pass sentence on the basis of penetrative sexual activity (which would have constituted the offence of rape) but he did not do so. To say that he was bound to adopt the most favourable construction of the case is to ignore his responsibility to have regard to all the evidence that he had heard and himself to form a view of the extent of the criminality consistent with the verdicts of the jury and that evidence. In our judgment, that is exactly what the judge did and, having heard the evidence both of C and evaluated it himself, he was entitled to do so. The sentence of three years imprisonment fell well within the bracket identified by the Sentencing Guidelines Council: this appeal was therefore also dismissed.
26. The clerical error in the record as regards the prevention order should be corrected.