England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		10 June 2015

1. SIR BRIAN LEVESON: On 12 January 2015, in the Crown Court at Lewes before HHJ Scott-Gall and a jury, the appellant was convicted of two counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. He was acquitted of four further counts. On 27 March, before the same court, he was sentenced to 9 months' and 12 months' imprisonment in relation to the offences for which he was convicted; those sentences were ordered to run consecutively, totalling 21 months' imprisonment. A Sexual Offences Prevention Order was imposed and an unspecified Victim Surcharge Order made. This Surcharge order was unlawful on the basis that count 1 of the indictment alleged an offence on 7 January 2005, and the relevant legislation came into force without retrospective effect on 1 October 2012; it is therefore quashed.
2. Substantively, however, the appellant now appeals against conviction by limited leave of the single judge. His application for leave to appeal against sentence has been referred to the full court by the Registrar.
3. The background to this prosecution is as follows. In January 2005, the appellant (then aged 15 years) was arrested in connection with sexually touching a boy, CP (then aged 6 years). The allegation was that he had been alone with CP while baby-sitting him and had initiated a 'tickling game', which culminated in him deliberately touching CP's penis under his underwear. The appellant was then interviewed and released without charge. However, over 8 years later, in March 2013, the appellant (then aged 23 years) was again arrested, this time in connection with an allegation of sexually touching another boy, RG (then aged 3 years). It was alleged that he had sexually assaulted RG when alone with him and told him not to tell anyone as it was their "big secret" and that he (RG) would get into trouble if he did so. RG exhibited behaviour consistent with having been sexualised by an adult while at nursery school.
4. The prosecution contended that CP and RG were unconnected and had never met. Their complaints were independent of one another, and the prosecution argued that each was capable of lending support and credence to the other. As a result, the charge in relation to CP was resurrected and formed count 1 of the indictment which he faced; the remaining five counts concerned RG. The defence case was one of denial. The appellant had never touched the penis of either complainant.
5. In order to understand the factual matrix that surrounds this appeal, the facts must be set out in a little detail. CP who was born in November 1998 and gave evidence via ABE interviews recorded on 13 January 2005, that is to say immediately after the allegation arose when he was 6 years of age and again on 1 May 2013 when he was aged 14 years. In the first interview he stated that the appellant had touched his 'willy' and pointed to his genital area. CP said that the appellant had touched, tickled and licked his penis "again and again and again." The offending occurred at the appellant's family home. The touching occurred under his clothing. CP further stated that he had seen the appellant's "willy".
6. In May 2013, when interviewed again, CP said that the appellant and other children had been baby-sitting him. He and the appellant had been in the appellant's bedroom when the appellant started tickling him. The appellant moved lower down his body until he has tickling his penis by putting his hand under CP's trousers and pants. The appellant's mother had then entered the room and told the appellant to stop.
7. When cross-examined, CP agreed his recollection of the incident was vague. He could not now recall any 'licking'. He denied having been coached by his father as to what to say in interview. He agreed that the appellant's mother had not entered the room. He had previously said that she had as he had been nervous on the day of the second ABE interview. He maintained that the appellant had indeed touched his penis.
8. CP's father had known the appellant's mother for a number of years. They frequented the same public house and on previous occasions they and others would bring their children with them, and the children would play together in the beer garden. On the relevant day he was redecorating the public house and it was agreed that the appellant's mother would take CP back to her house with some other children, and that the appellant would look after them. He later went to collect CP from the appellant's family home. On their way home he asked CP if he had been "good" and had enjoyed himself. CP told him that he had. CP said that the appellant had touched his "willy" and tickled it. CP then immediately changed the subject. As a result, the police were later telephoned. He went on to add that he remained a friend of the appellant's mother and they had never discussed matters between them.
9. We turn to the remaining five counts. RG, born in May 2009, was interviewed in accordance with ABE guidelines on 5 April 2013, when he was aged 3 years, and on 26 June and 4 July 2013, when he was aged 4 years. In the first interview he said, among other things, that the appellant was "naughty" because he smoked and that the appellant slept in his bed but "fell out of my house and died." When asked if anything had happened to his penis, he replied "no" and when asked if the appellant had ever done anything to his penis, he replied, "He never has". In interview on 26 June 2013, he was asked how he knew about "licking willies" and maintained that he did not. It was put to him that he had told his mother that the appellant had touched his penis and he replied, "No, that didn't happen". The final rather more brief interview was inconclusive.
10. This, however, was not the totality of the evidence. RG's mother lived with him in a flat in the same building as the appellant. She explained that she had befriended the appellant and he would run errands for her and look after RG. At one point, when RG was a toddler, the appellant would visit their flat about four times a week. He would help her to change RG's nappy and they would play together in the communal gardens. She went on to say that RG, when 2½ years old, told her and her partner that the appellant had been "playing with his (RG's) willy". The two discussed what they had heard and they thought it was "not normal" but "brushed it to one side". They thought it could not have happened and did not take it seriously. They did however ask RG about what he had said, but he would reply, "Nothing, nothing, nothing."
11. RG's mother then sought advice from the nursery RG attended and they advised her not to let RG and the appellant spend any time together. Eight months later, however, the nursery contacted her to express concern over RG's sexualised behaviour and in particular his behaviour towards another child in the toilet at the nursery.
12. The basis of these allegations developed on 26 March 2013 when RG's mother was in her kitchen with a friend, while the appellant and RG were in the front room. She could hear the appellant and RG playing. She heard RG mention that the appellant was licking him; the appellant then said that he was tickling him. The appellant then entered the kitchen and said he was leaving. He was red in the face. She did not see him again. Later that day RG told her that the appellant had "been playing with his willy" and "plays with my willy." She later telephoned the police and told them what had happened on that day and what RG had told her in the past.
13. RG had also told her that the appellant liked to put RG's penis into his mouth and suck it. She had attempted to talk to RG about these matters, but he had not wished to speak about them and expressed concern over getting other people into trouble. After RG had been interviewed by the police, he told her that he had not been forthcoming in his ABE interview as he was frightened and would feel bad if others got into trouble.
14. When cross-examined, RG's mother agreed that RG had told her that another child from his nursery had put RG's penis into his mouth. She maintained, however, that RG had told her that the appellant liked to play with his (RG's) penis.
15. The mother's partner gave evidence that she overheard RG playing with another child. The other child had asked RG to "eat" his penis. She had attended RG's nursery and discussed matters with the staff there and there was an agreed summary of the log from the nursery. She added that after the matter had been reported to the police RG had asked her if they did not see the appellant anymore because he [the appellant] had "been bad" and asked her if his mother would be upset because the appellant had been bad.
16. The remaining evidence came first from a forensic scientist, who examined the underpants worn by RG on the date upon which matters were reported to the police. Tests revealed the presence of DNA from at least two individuals, but there was no indication that the appellant's DNA was present. Secondly, the officer in charge of the case confirmed that the appellant had been arrested and interviewed in January 2005 in connection with the allegations of CP; he was then released without charge. As for these later allegations, he responded to questions in interview and provided an account consistent with his evidence at trial.
17. The appellant gave evidence that he had not touched CP's penis and maintained the account that he had given the police in 2005 was truthful. As for RG, he had a good relationship with him, had never touched his penis and had never licked him. He would not assist RG if he wished to use the toilet.
18. On the evening of 26 March 2013, he had been at the boy's flat from about 7.30pm until 9.30pm. He had not been sleeping well in the days prior and had left abruptly as he felt tired and dizzy. RG had shown him some pictures he had painted at nursery. The appellant said he had not mentioned tickling to RG at all, notwithstanding what the mother had overheard, but RG was in the habit of saying odd things, some without foundation. RG had once said a dog had bitten him on the leg or the arm, but there was no evidence of this. When cross-examined, he agreed that he had been alone with CP on the relevant evening, although he could not recall tickling him. He agreed he had time with RG and on 26 March 2013 had been alone with him whilst his mother was engaged with her friends in the kitchen.
19. In the event, the jury convicted the appellant of the allegation concerning CP and of one allegation concerning RG, that is to say touching. Other allegations, all of which were samples, included licking and touching other parts of RG based upon complaints made to his mother. The remaining counts affecting RG, which went beyond touching and particularised to other conduct, led to verdicts of acquittal.
20. The sole ground of appeal concerns the admission by the judge of the hearsay evidence of RG's mother and friend as to the complaints which RG had made, but which he did not repeat during the course of the ABE interview. During the trial it was argued that RG, who was available to give evidence at the trial, had failed to substantiate the allegations and that, as a result, the application to admit the hearsay evidence could not be brought within section 114(1)(d) of the Criminal Justice Act 2003. The Judge was mindful of the provisions of section 114(2) of the 2003 Act and the counterbalancing measures set out in R v Ibrahim [2012] 2 Cr App R 32, but concluded that there was no justification to refuse the application and that the defence would not be disadvantaged in challenging the evidence.
21. In this court Mr George Hepburne-Scott, who has said all that can properly be said for the appellant and who also appeared in the Crown Court, pointed to the fact that RG had also said that the appellant had cut his hand off and that the dog had told him things as undermining RG's reliability. He made the point that when giving his ruling on admissibility the judge did not refer to these features as affecting the boy's reliability, indeed he said that there was nothing that impacted on his reliability. On closer examination during the course of the appeal, however, it seems clear that these features of the evidence were not brought to the Judge's attention and Mr Hepburne-Scott resiled from the criticism that he made of the Judge's summary during the course of his ruling.
22. As to the hearsay remarks, however, Mr Hepburne-Scott underlined that RG had repeatedly denied that anything untoward had ever happened to him. He argued that the hearsay comment to the mother's partner, "We don't see Rupert any more because Rupert was bad because of the things he did around my bottom, but I don't want to say anything to Mummy as I don't want to make her angry and upset", came months after the appellant had been arrested and may well have been the result of contamination, that is to say, discussions between adults that RG had picked up.
23. As to the law, Mr Hepburne-Scott referred to the contrasting case of R v Riat & Ors [2012] EWCA Crim 1509 in which the complaints of a 3½-year-old child could not be subject to an ABE interview. In addition to the hearsay complaint, however, when her mother had been told and had decided to call the police, the defendant had left the house without saying anything by way of farewell. Further, on arrest, he had told one of the officers not to look at him as if he were a paedophile (there being a dispute as to whether he had been told the reason for his arrest).
24. Finally, in that case, the appellant provided an explanation for the possibility that his DNA could be found on the child's knickers, which the jury were entitled to reject as absurd, even though, in the event, his DNA was not found. Giving the judgment of the court, Hughes LJ (as he then was) observed that if the statement to the mother had stood alone, it would have been wrong to admit it or allow the case to go to the jury, but it did not for there were three other elements, to which we have referred, which provided sufficient means to test and assess the complaint. In the circumstances, the admission of the evidence, and thus the verdict, could not be impugned. Mr Hepburne-Scott contrasted that circumstance with this case, which he argued depended solely on the hearsay complaint.
25. On behalf of the Crown, Ms Dianne Chan, who also appeared in the court below, said that the complaints made by RG had to be considered in the round along with the other potentially supporting evidence. The remarks had spanned some 18 months and were consistent. They were supported by observations that he had made to his mother and her partner, and by evidence of sexualised incidents at the nursery, albeit that those sexualised incidents, which may well have demonstrated involvement in sexual activity, could not, under any circumstances, be brought home to the appellant himself. The additional justification for the admission of the hearsay came from the similar fact allegation made by CP who was entirely unconnected to RG.
26. She accepts that the remarks on 26 March 2013, which it seems to us from an examination of the facts occurred either at or immediately proximate to the incident, were not put before the judge as part of the res gestae. Although it is clear, having regard to the impact of the decision in Ratten v the Queen [1972] AC 378, that an argument could have been advanced that these observations were admissible as part of the res gestae. In that regard, the possibility of concoction or distortion in relation to that allegation alone is capable of being discounted, not only because the appellant was there accepting that he was touching the boy RG, albeit not, as, he asserted it, sexually, and by the immediacy of the circumstances.
27. We have been taken to the ruling which the learned judge provided when he dealt with the application to admit this hearsay evidence. It is abundantly clear, once one discounts the fact that he knew nothing of the rather odd allegations that the boy made at other times about incidents which could not be true, that he analysed the facts in a way which cannot be challenged. Mr Hepburne-Scott submits that once this other material became available the judge should have revisited his ruling, and if that had led to the discharge of the jury so be it. In the event, no such application was made.
28. We have come to the conclusion that the multiple circumstances to which Miss Chan referred were sufficient to permit the judge to reach the conclusion that he reached in his comprehensive ruling. Had the matter been brought back to the judge at a subsequent occasion, it may very well be that consideration of the law of res gestae would have caused him to allow that aspect of the evidence to be admitted in any event, in which circumstance the rest of the material would also have fallen to be admissible, not least because the balance of discretion would then have flowed in favour of the admission of the entirety of the evidence, if only because of the intention, as was eventually realised, to play the entirety of RG's ABE interviews so that the jury could consider the matter in the round. In the circumstances, notwithstanding the powerful arguments which Mr Hepburne-Scott has raised, this appeal against conviction is dismissed.
29. We turn to the question of sentence and note that the appellant was sentenced to 21 months in custody, being 9 months in relation to the assault on CP and 12 months consecutively for the assault on the child RG. Mr Hepburne-Scott submits that as a matter of totality that sentence is too long. Of course the learned judge not only had the great benefit of having seen all those involved in these incidents in a trial, but he also had the benefit of comprehensive reports upon the appellant both in the form of a pre-sentence report provided by Jo Barton, dated 9 February 2015, and a psychiatric report prepared by Dr Daniel Hume, dated 16 February 2015.
30. In the latter Dr Hume identified that the appellant suffers from "a pervasive development disorder or autistic spectrum condition, and a mental and behavioural disorder secondary to the harmful and hazardous use of cannabis". He recommended that a sentence plan should include additional victim empathy awareness and specialised social skills training in addition to a sexual offending component in order to reduce the appellant's risk of offending in the future. He also noted that the appellant was suffering from symptoms of anxiety and depression relating to his current circumstances, but that these were being appropriately treated in custody. He did recommend, and we hope that it has come about, that the appellant will benefit from input from a mental health team while in custody. The probation officer believed that the only appropriate disposal was a term in custody.
31. We have been concerned that the original term is rather longer than would have been passed on a boy of 16 years of age, but we are extremely conscious that the judge had the overall sentence in mind and had conducted this comparatively lengthy trial with the benefit of seeing CP, RG, their respective families and most importantly the appellant himself. In the circumstances we are not prepared to conclude that this sentence is either wrong in principle or manifestly excessive, save in relation to the surcharge, to which we have previously referred, and for which purpose we grant leave to appeal against sentence and quash the order, as we have indicated; the appeal is otherwise dismissed.