England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 March 2015

1. LORD JUSTICE BURNETT: The applicant was prosecuted for offences of rape and child cruelty on an 18 count indictment relating to five children aged between two and 16 at the date of his four week trial in the summer of 2014. On 3rd and 4th July 2014 before His Honour Judge Katz QC at Woolwich Crown Court, the applicant was convicted on two counts of rape, relating to two of those children, and seven counts of child cruelty relating to four, including one of those he was convicted of raping. He was acquitted of cruelty charges relating to the youngest of the children and the jury were unable to agree on seven additional counts of rape. The applicant has since been retried on those seven counts and a further four counts of rape. Mr Milne has confirmed this morning that he was convicted on all those counts.
2. This is the applicant's renewed application for leave to appeal against conviction following refusal by the single judge. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the rape counts to the effect that no matter relating to the complainants identified in counts 1 to 12 on the indictment shall during their lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offences there identified. Furthermore, the provisions of section 39 of the Children and Young Persons Act 1933 are engaged in this case because all the victims were under 18 years old. An order under section 39 was made in the Crown Court. At the outset of this appeal we indicated that we were making a similar order. Its terms are as follows: "Pursuant to section 39 of the Children and Young Persons Act 1933 it is ordered that no news report or publication relating to these proceedings shall (a) reveal the name, address or school of any child or young person concerned in the proceedings as a complainant or witness, or (b) reproduce any picture of such a person, or (c) reveal any information calculated to lead to their identification."
3. It will not in fact be necessary to name the children in the course of this judgment. The grounds of appeal are such that it will also be unnecessary to rehearse the facts in great detail. We shall identify the children as A, B, C and D. As we shall discover, the grounds that are raised in support of this application relate to children A and D.
4. The applicant hails from a Caribbean country where he had lived with his extended family. We understand that he was a relatively well-known person in the community of that country. He also lived for some time in the United States. He travelled to Europe living at some point in Germany and thence to the United Kingdom. He arranged for a number of children to follow him from the Caribbean using false documents.
5. In short the prosecution case was that the applicant was a brutal and manipulative tyrant who had trafficked four girls to the United Kingdom and then systematically abused them and used them to satisfy his sexual desires. A was the oldest of the children referred to in the indictment. She was 16 at the time of trial. The applicant wished to cross-examine her about some events which had occurred in the Caribbean. We take the facts of the nature of the material that it was suggested should be put to her from a document filed on behalf of the applicant in the Crown Court. In quoting from it we have anonymised the child and removed some material that might lead to her identification:

"In [the Caribbean] in 2006 [A] was on her way to school when she and another six or so children were kidnapped. She was held ransom for about five/six days to a week. The defendant was contacted by her mother who said that they needed to pay the ransom as the kidnappers had stated that they were sexually abusing the children and that if no ransom was paid the children would be killed. The defendant flew from Miami and paid $10,000 ransom money. The police were not informed. Straight after [A] was returned to the defendant and her mother she told them that she had been [sexually assaulted]. The defendant was suspicious. He did not believe [A's] account and so he hired a private detective. The private detective confirmed that none of the other children were saying that they had been sexually abused and that nothing had happened. It is the defendant's belief that [A's] mother made the whole kidnap up, to get money off the defendant and his family and that [A] went along with the deception."

6. A was only eight years old at the time. The application was made to enable the applicant to put to the child A that she had been party to a staged kidnapping in the Caribbean. There is some ambiguity in the use of the language of "staging", because that might suggest that something that looked like a kidnapping had occurred. Mr Milne this morning accepted that it would be difficult to support a contention that an eight-year-old child's behaviour in going along with a plan hatched by her parent could really be described as reprehensible. If that were right, Mr Milne submitted the application need not have been made. He might have sought to cross-examine the child on the basis that she had previously gone along with false allegations, albeit of an entirely different nature, and had again done so in the course of these criminal proceedings.
7. Be that as it may, it was also suggested that it would be appropriate to put to this child that she had falsely claimed that she had been sexually assaulted. In fact the applicant himself was unable to say, even in giving instructions, whether it was the child's mother or the child who had suggested that there had been sexual assault.
8. The judge rejected the application.
9. There was no intention on the part of the applicant to call A's mother. That of course was not surprising. It would have been very unreal to suppose that it might have happened. Additionally, there was no intention to call the private detective whose brief account is set out in the quotation, nor to produce any primary material from the detective. That brief account is on any view ambiguous. It is not clear whether what is being suggested is that the other six children had been party to a staged kidnapping during which no sexual assault happened or whether no staged kidnapping happened at all. It is also unclear where statements of fact, albeit attributed to the other children, merge into the opinion of the private investigator.
10. In our judgment these instructions simply do not provide a sufficient evidential foundation upon which A could properly have been cross-examined on the subject. The evidence of anything untoward, unclear as it is, comes from a private detective. As we have noted there was not even a report from him, nor was there any basis upon which an application to adduce hearsay evidence could have been made. We emphasise that none was in fact planned. The applicant's subjective belief referred to in the quotation carries the matter no further.
11. Furthermore, this was advanced as an application to adduce bad character evidence against a child aged eight when it is alleged she went along with her mother in faking a kidnap to extract money from the applicant and in doing so made an allegation of sexual assault, that allegation it is said being false. As such it engaged the non defendant bad character provisions found in section 100 of the Criminal Justice Act 2003. The judge gave a detailed ruling explaining why he did not consider that it was appropriate to allow this cross-examination. Mr Milne took us to aspects of the ruling and advanced some criticism as to its detail. Nonetheless, the overall conclusion of the judge was that the statutory hurdles were simply not surmounted in this case. In our judgment that conclusion was correct.
12. The applicant also wished to put to A that D had made a complaint of sexual assault against A which was untrue. We have indicated that at the time of trial A was 16. D was eight. The purpose of seeking to introduce this material was to enable Mr Milne on behalf of the applicant in due course to submit to the jury that one or other must have lied about the matter. The evidence for this complaint was found in papers relating to Family Court proceedings. D is recorded as having made the allegation, A as having denied it. Both could not be right. We explored in the course of argument precisely how this course of questioning might proceed. It appeared that what was planned was no more than this. It would be put to A that D had made the allegation, in the expectation that A would agree that the allegation was made. It would be put in a single question to A what the nature of the allegation was. Again it was expected that A would agree. A would then be asked whether it was true. If she denied it then Mr Milne would seek to suggest that D must be lying. If she admitted it then he would suggest that she had previously lied. Plainly, in the event that the question were to be put in a way that positively suggested to A that she had sexually assaulted D, then all the difficulties that section 41 of the Youth Justice and Criminal Evdience Act 1999 engages in cases of this nature would have to be overcome. It would be a question asking about A's sexual behaviour.
13. The source of the information was a social worker's statement. It was in the unused material for the purposes of this trial. The application was made after D had given her evidence. It was made explicitly on the basis that D should not be recalled. Indeed on behalf of the applicant it was submitted to the judge that it would be "wholly inappropriate" to investigate the matter at all beyond the few questions to A to which we have referred. No attempt had been made to seek leave to ask D any questions about it or otherwise to establish any evidential foundation for the questions at all. Mr Milne submitted this morning that the reality would have been that if leave had been given by the judge to pursue this line of questioning the prosecution would have been expected to make an admission as to the content of the social worker's report. There was no suggestion that any direct evidence should be adduced.
14. We note that there was no allegation on the indictment that D had been sexually abused by the applicant. The counts relating to her were limited to cruelty.
15. The judge ruled against the application on the basis that it was wrong to allow the matter to be put when all agreed that the jury would not have material before them to resolve any of the issues that arose. The jury would be invited to reach a conclusion not having heard from D at all and on the sketchiest of material. He also considered that the suggestion that A had sexually assaulted D amounted to an attempt to introduce bad character evidence either against D or A or both. He concluded that in that event it would not be right to allow it to be admitted because the necessary criteria for the purposes of the Criminal Justice Act 2003 were not satisfied. In particular, it did not have substantial probative value in relation to the credit of D. We agree that the judge was right to exclude that evidence for both the reasons he gave.
16. The final ground advanced this morning concerns evidence of the applicant's bad character which the judge allowed the prosecution to adduce. The circumstances were unusual. We have noted that the applicant accepted that he had flouted immigration law to get the children into the United Kingdom. In his evidence the applicant contended before the jury that, save in respect of immigration matters, he was of good character and that he was a God-fearing and law-abiding man.
17. For the first time in the course of his evidence he raised an alibi in respect of one of the rapes. No notice had been given, as it should have been. Understandably, the prosecution wished to investigate the alibi. The judge allowed a short break for the prosecution to do so.
18. The applicant suggested that his two mobile telephones would contain exchanges of various sorts which support the alibi. As it turns, out we understand that the phones did not do so. However, in his enthusiasm to establish the alibi, the applicant overlooked the fact that his phones contained a great deal of evidence to suggest that they had been used by someone dealing class A drugs. Having discovered that, the prosecution sought leave to introduce the evidence. The judge allowed it in for two reasons. First, to ensure that the jury was not misled (section 101(1)(f) of the 2003 Act) and secondly because the applicant had throughout impugned the character of the children complainants (section 101(1)(g) of the 2003 Act).
19. It has not been suggested that those two statutory gateways were not open in this case. Plainly they were. Instead, it is submitted that it was unfair to admit the evidence. Mr Milne submits that having regard to both section 103(3) of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984 the judge should have excluded that evidence. In particular, Mr Milne reminds us that in the course of his submissions he drew to the judge's attention the danger of satellite litigation developing as a result of this evidence coming in. As it happens, submits Mr Milne, a disproportionate amount of time during cross-examination of the defendant was taken up in dealing with these matters.
20. Given that it is accepted that the statutory gateways were open, the question for us is whether the judge was wrong to exercise his discretion to allow this bad character evidence to be introduced and put to the applicant. We are entirely satisfied that in the circumstances in which the issues arose, not only was the judge entitled as a matter of discretion to allow the prosecution to adduce this evidence, but that he was obviously right to do so. Without the evidence the jury in this case could have been left with a wrong impression, and given the circumstances in which he impugned the character of the complainant children any other conclusion would have been a surprising one. It was for the judge to consider the satellite litigation point. It is clear that more time was taken in cross examination on this issue than had been expected at the time of the ruling. However, that does not impugn the ruling itself.
21. For these reasons, we are also unpersuaded that there is anything in the third ground.
22. Mr Milne, who has appeared today with Mr Lister, on behalf of the applicant, has pressed each of the grounds we have discussed. We are grateful for his oral submissions and also the detailed material he has provided in writing. Despite his best efforts, we are satisfied that this renewed application must be dismissed.