England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 27 November 2014

LORD JUSTICE BEAN: In 1983, the appellant married CH. She already had two children by her first marriage, a son aged 12 and a daughter, the complainant, then aged eight. She was born in October 1975. She is entitled to anonymity.

In August 2008, the complainant, by this time 32 years old and married with two young children, told her husband and her mother that the appellant had sexually abused her from the age of 12 until she left home at the age of 20 or 21.

The appellant was charged on an indictment containing 12 counts, some of them specimen counts. The most serious individual count, count 6, alleged a single incident of rape when the complainant was between 15 and 18 years old. The trial of these charges took place from 4 to 18 January 2010 at the Crown Court at Luton before His Honour Judge Jeffrey Burke QC and a jury.

The defendant was convicted on all counts. He did not seek permission to appeal until four years later. When he did so, it was with new solicitors and counsel, and raising points about the trial judge's summing-up which were available to the defendant in 2010.

Mr Sandip Patel QC frankly concedes in his grounds of appeal - and we would in any event have inferred - that after the defendant's conviction, trial counsel gave negative advice on the prospects of a successful appeal. There is no express criticism of trial counsel in the grounds, but there is an implied criticism that he gave plainly wrong advice.

The appellant appeals to this court by leave of the single judge. But in those circumstances we consider, with respect, that the single judge should not have granted permission to appeal against conviction on the papers. A preferable course, where an application is made for permission to appeal against conviction long out of time and the single judge thinks there is an apparently arguable point, is to refer the application for permission to the full court, with any appropriate representation order; and to give directions for the notice and grounds of appeal to be sent to trial counsel and solicitors for their comments, with the waiver of privilege procedure being used where necessary.

We do not know, since neither of the advocates before us appeared at the trial in 2010, whether the judge's directions on character which formed the subject matter of this appeal were discussed or even agreed with counsel before the judge began his summing-up. Mr Patel has informed us, and we accept, that he has discussed the case by telephone with trial counsel, who (unsurprisingly after four years) could not recall how the directions came to be given. It would have been preferable for trial counsel to be sent the notice and grounds of appeal and the impugned passages in the summing-up: reading the documents might (though of course it might not) have assisted his recollection.

On 30 April 2014, in R v McCook [2014] EWCA Crim 734 , a specially convened constitution of this court consisting of the Lord Chief Justice, the President of the Queen's Bench Division and the Vice President of the Court of Appeal Criminal Division said at paragraph 11 that:

"In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare."

(See also the article by the Registrar of Criminal Appeals in Archbold News, Issue 8, September 11, 2014).

We appreciate that the Notice of Appeal in this case was lodged in January before R v McCook, and we do not criticise Mr Patel for failing to anticipate it. Moreover, as we have noted, he did at least discuss the case with trial counsel by telephone. Since the decision in R v McCook was given, it has become the practice of the Criminal Appeal Office, where fresh counsel and/or solicitors are instructed, to send a letter requiring a written enquiry to be made of trial counsel at an early stage. That was not done in this case, for the reasons we have set out. We will have to proceed on the basis, which may be over-favourable to the appellant, that the judge did not discuss a draft of his directions with counsel.

The appeal, as we have said, concerns the judge's directions on character. On the one hand, the appellant had no previous convictions; on the other hand, evidence of sexually improper behaviour of a lesser kind than that charged in the indictment had been adduced, apparently by agreement. The judge's summing-up contains the following passages. We shall omit names and refer to the complainant as "L":

"There is a second aspect of the defendant's character or behaviour on which the prosecution rely and that is the evidence of his inappropriate sexual behaviour towards other young women. The evidence of his kissing [M's] daughter-in-law on the back of the neck when her husband was not looking. He said that did not happen, he was only blowing on her neck. The evidence of [AM] about him making comments about girls' bodies and slapping her on the bottom when she was a teenager. The evidence of [B] and the two young girls who have been described by both counsel as the Asda girls: I will remind you what their evidence was in due course.

... You have heard [this evidence] because the parties have agreed that it is relevant. The prosecution say that this establishes, demonstrates a propensity, a character trait or an inclination to think and speak and act in sexual terms with young girls or women when he should not be so speaking and acting, and that it makes [L's] complaint that he sexually abused her more likely to be true.

The defendant to a large extent denies that he acted in that way. He admits slapping [AM's] bottom but he says that was because she was standing in the way and there was nothing abnormal about it and he admits making some remarks of a jokey nature to the Asda girls. but generally he denies that behaviour.

I have told you what he says about his daughter-in-law and what he says in the case of [AM] and the case of [B]. His case is that she was coming on to him, flirting with him, not he with her, and that nothing happened, and on the occasion when he says he was trying to touch her that no more happened and that she asked him for a cigarette, and as for the Asda girls his case is that he did make a few remarks to them but they were friendly and normal and the sort of exchange that happens and nothing more than that, and with his evidence too you need to approach it in the same way as the evidence of others, the dynamics within the family.

First of all consider it and decide whether you accept it or what of it you accept. Any evidence in this category which you do not accept and is not relevant put it aside and ignore it. If you accept evidence in this category you must decide whether it does establish a propensity to behave in a sexually inappropriate manner with young girls and women, and if it does establish such a propensity it is for you to judge how far, if at all, that assists you in deciding if the complaints are true. I say again evidence of propensity is only part of the evidence in this case. You must not exaggerate its importance. It does not follow that just because the defendant behaved in a certain way to others he abused [L]. Bad behaviour with others of a sexual nature does not itself prove guilt, but to the extent that you accept the evidence of that behaviour you can take it into account in making the decisions you have to make in the manner I have described…………..

You will want to bear in mind that the defendant has never been convicted of any criminal offence or cautioned for any criminal offence. He has a wholly clean criminal record. Of course good character cannot of itself provide the defence to a criminal charge, but it is evidence which you can take into account and should take into account in his favour in the following ways. First of all, he has given evidence and as with any man of good character his good character supports his credibility. That means it is a factor which you should take into account in considering whether you believe his evidence.

Secondly, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit the crimes with which he is charged. These are matters to which you should have regard in his favour. It is for you to decide what weight you should give them, and in doing that you are entitled to take into account everything you have heard about the defendant. In considering how much weight you give them you will want to consider the conclusions you reach as to the evidence you have heard about his conduct within the family and his conduct in relation to other girls and women, and if you accept that evidence then it may be that you would want to consider whether the weight that you gave to the good character factors which I have just outlined might be reduced. That is a matter for you."

He went on to emphasise the point that the alleged incidents were a long time ago and that the jury should make allowance in the defendant's favour for that.

Mr Patel's first ground of criticism is that, in referring to the evidence of misconduct, the judge did not say to the jury that they could only take it into account if they were sure that it was true. In R v Lafayette [2008] EWCA Crim 3238, this court said that in a case where misconduct evidence is placed before the jury, the jury should be directed that they should not rely on that evidence unless they were sure of it.

We accept that it would have been better if the judge had made this point when referring to the misconduct evidence in his summing-up. But we do not see why a jury should think that a different standard applies to allegations of sexual impropriety not on the indictment from that applicable to allegations of sexual impropriety which are on the indictment. The judge gave the usual direction at the outset of his summing-up about the burden and standard of proof. As Mr Patel accepts, it is well established that a judge, having given that direction, does not have to refer back to it repeatedly. It is not a misdirection to say later in the summing-up "If you accept the evidence of X", without emphasising on each occasion the need to be sure before doing so if X is a prosecution witness. We note that in Lafayette itself the trial judge's failure to tell the jury that they must be sure of the misconduct evidence before taking it into account did not lead to the appeal being successful.

Mr Patel's second point is that the last paragraph which we have quoted from the directions on character (the one beginning "In considering how much weight you give them") amounted to an improper dilution of the good character direction which it followed, and amounted to mixing up good character with bad character. In his written grounds of appeal he referred to R v Greenwood [2012] EWCA Crim 3147. It is sufficient to say that the trial judge in that case gave what we must refer to as a garbled direction on character, as well as a wrong direction on the use which the jury could make of lies told by the defendant, and in those circumstances the Court of Appeal quashed the conviction. Mr Patel accepts that the direction in the present case was not in the same category.

We consider that the sentence of which Mr Patel complains at the end of the character directions was entirely appropriate. The defendant was, as the judge said, a man with a wholly clean criminal record, and that was a point which should be taken into account in his favour. But when the jury were considering whether or not they were satisfied of the guilt of the defendant on the charges of sexual abuse of L, they were entitled to bear in mind, if they accepted it, the evidence of misconduct towards other women; and, if they were satisfied of that other misconduct, then the view of the defendant's character with which they embarked on consideration of the counts on the indictment might become somewhat less favourable. As the judge said:

"If you accept that evidence then it may be that you would want to consider whether the weight that you gave to the good character factors ... might be reduced. That is a matter for you."

We do not consider that this was an improper dilution of the good character direction.

In the leading case of R v Campbell [2007] 2 Cr App R 28, this court, in a judgment delivered by the then Lord Chief Justice, Lord Phillips, said that directions on character should accord with common sense. In our judgment, Judge Burke's direction did so. Accordingly, we consider that trial counsel's advice was correct, and the summing-up did not in any way render the convictions unsafe. The appeal against conviction is dismissed.

We turn to the appeal against sentence, which can be dealt with very shortly. The sentences imposed were as follows: on counts 1 and 2 of the indictment, charging indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960, 5 years' imprisonment on each count; on counts 3 to 5 and 7 to 12, each charging indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, 5 years' imprisonment on each count, concurrent with each other and concurrent with the sentence on counts 1 and 2; on count 6, the charge of rape, 8 years' imprisonment consecutive to the other sentences, making 13 years' imprisonment in all.

The sentences on counts 1 and 2 were unlawful because there was a statutory maximum of 2 years' imprisonment if, as here, the offences were committed before 1 October 1997. We are grateful to the Criminal Appeal Office, who, with their usual vigilance, spotted this point when notice of appeal was given.

We allow the appeal against sentence to the extent of quashing the concurrent sentences of 5 years' imprisonment on counts 1 and 2 and substituting concurrent sentences of 2 years' imprisonment. This does not affect the overall total of the appellant's sentence, namely 13 years. It is quite rightly not suggested that there was anything else of which he could complain in the sentence; so the appeal against sentence is allowed to that limited extent.