England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		25th February 2015

LADY JUSTICE HALLETT:

Background

1. On 12^th December 2013 at the Wood Green Crown Court before Her Honour Judge May QC the appellant was convicted of a number of offences. On 20^th December 2013 he was sentenced as follows: for conspiracy to traffic persons into the United Kingdom for the purpose of sexual exploitation (counts 1 and 2), seven years' imprisonment on each; for conspiracy to traffic persons within the United Kingdom for the purpose of sexual exploitation (counts 3 and 4), seven years' imprisonment on each, to run concurrently; for conspiracy to control prostitution (counts 5 and 6), three years' imprisonment on each, to run concurrently; and for conspiracy to assist unlawful immigration into the United Kingdom (count 7), three years' imprisonment to run consecutively. The total sentence was ten years' imprisonment. He was acquitted on two counts of conspiracy to traffic people from the United Kingdom and conspiracy to rape.
2. There were a number of co-accused. Chika Ike-Michael pleaded guilty to count 7 (conspiracy to assist unlawful immigration) and was sentenced to five years' imprisonment; Anita Maule, who was convicted on counts 1, 2, 3, 4 and 7, was sentenced to a total of eleven years' imprisonment. Victor Maule pleaded guilty on re-arraignment to counts 5, 6 and 7, count 16 (possession of a firearm), count 17 (possession of a prohibited weapon), and counts 18 and 19 (having an offensive weapon) and was sentenced to 5½ years' imprisonment. Ramesh Mali, who was convicted on count 7 (conspiracy to assist unlawful immigration) was sentenced to 2½ years' imprisonment.
3. The appellant appeals against conviction by leave of the single judge.
4. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the reporting of any details which might identify the complainants.

Prosecution case

5. The case concerned the alleged trafficking into the United Kingdom of Hungarian nationals, "MP" and "AS", for the purposes of sexual and other exploitation, including sham marriages.
6. Anita Maule ran a brothel along with her brother Victor Maule. The appellant is a Hungarian national and a long-term partner of Anita Maule. The appellant and the Maules, would procure young Hungarian women and bring them to London to work as prostitutes. Anita Maule organised the transport to and from Hungary for the appellant and the young women. She set up a sauna in Colindale where they were put to work to give sexual services.
7. The two complainants were both considered vulnerable and given the benefit of special measures. They were unknown to each other, but gave similar evidence. They were in their twenties when they were first seen by the appellant in Hungary. Shortly after meeting him they were brought to the United Kingdom. MP came in 2008 and AS in 2010. Both came from disadvantaged backgrounds and both had worked as prostitutes in Hungary.
8. The evidence of AS was that by virtue of her troubled past she had been ripe for exploitation. Prior to coming to the United Kingdom she had been sold at the age of 22 by a family member into prostitution. She said that she had escaped and returned to her family. She had a child who was put into care and later adopted. She had a second child whom she said she was also forced to put into care. She was then sold on to someone called Attila, who put her to work as a slave, including for sexual purposes. He it was, she said, who introduced her to the appellant (her new owner) who brought her to London.
9. Once in the United Kingdom the complainants' identity documents were taken from them and they were housed in the Maule home, where they were kept under the control of the appellant and the Maules. They were taken to and from the sauna and other brothels each day for work. They were told what sexual services to provide, to whom, and what to charge. Their earnings were then taken from them.
10. Anita Maule had another business interest in sham marriages. She ran this with the co-accused Chika Ike-Michael (a solicitor who dealt in immigration matters). Chika Ike-Michael had a business advising on how to create a convincing marriage from a sham, enabling non-EU nationals to apply for residence in the UK as the spouse of an EU national. He drew up documents and certificates of eligibility. He also arranged for a friend to provide bogus employment details for the Hungarian spouses. Anita Maule's role was to broker sham marriages to Hungarian nationals. One such was her brother, Victor Maule; another was his partner; and a third was the complainant AS.
11. AS was married to the co-accused Ramesh Mali in Nepal.

Defence case

12. The defence case was that both MP and AS were lying. They had come to the United Kingdom voluntarily and had continued their previous line of work, namely prostitution. The women were not controlled; they worked as prostitutes out of choice.
13. The appellant said that he had met AS in Hungary in the winter of 2010 and they had formed a relationship. He had also been in an on-off relationship with Anita Maule and had a child with her. He accepted that he travelled regularly between the United Kingdom and Hungary. On one visit AS agreed to come to London with him to meet his child. He and AS lived at Anita Maule's home, and then found their own accommodation. AS also continued to travel independently to and from Hungary. He had lied initially when he had denied knowing that AS was a prostitute, but claimed that this was to protect her reputation. He also failed to tell the police that he earned his income by bringing into the United Kingdom cigarettes and fake-branded items, and by taking second-hand cars to Hungary and selling them.
14. Miss Tracy Ayling QC, who appeared for Anita Maule (first on the indictment), obtained the agreement of the prosecution to put a document before the jury which set out in considerable detail passages from AS's Social Services' records in Hungary. Miss Marsh QC, who appeared for the second defendant (this appellant), was not a party to its preparation, but also placed reliance upon it. It revealed a whole series of inconsistent statements made by the complainant AS as to her history.
15. The judge acknowledged that a great deal of the material in the document was potentially relevant to credibility of the witness but was concerned to avoid unnecessary repetition of questions on the same topics by successive counsel. This was always likely to be an issue and had been raised by both the judge in a case management hearing and by the trial judge. Miss Marsh acknowledged that this was a proper concern. She and her colleagues assured Her Honour Judge May that they were conscious of their obligations and would share the topics amongst themselves to avoid repetitive questioning. Relying on those assurances, and having elicited from each counsel a rough estimate of the proposed length of their questioning, the judge did not feel it necessary to impose a more structured timetable.
16. Nevertheless, examination of the witness AS lasted some time. Evidence in chief consisted mostly of her Achieving Best Evidence interviews and some additional oral testimony and took several days to complete. This was because the ABE interviews themselves were quite long; the questions and answers had to be interpreted and the witness required regular breaks.
17. Cross examination by Miss Ayling amounted in all to approximately five to six hours but was also spread over days. When Miss Ayling had completed her questioning, the judge expressed concern to Miss Marsh about the areas that she wished to explore with the witness. The judge feared that this might be much the same territory as Miss Ayling had covered, namely, the complainant's "back story" (her life before she came to the United Kingdom in 2010).
18. Miss Marsh explained that there were a number of topics that, given a free hand as Miss Ayling had been given, she would like to cover. They included the fact that AS's younger daughter had been adopted in mid-2009, six months rather than immediately after birth, as the complainant had claimed; the fact that AS had been in and out of refuges during the period she claimed to be living with her father or mother in 2008-2009; that AS had grown up partly in care herself despite claims of living with her parents and the fact that her elder daughter was in care for some months in 2008. Having pressed Miss Marsh for more details, the judge was not persuaded that these were areas that required further exploration. However she made it plain that she would not prevent Miss Marsh from exploring areas not already dealt with by Miss Ayling and areas which were specific to the appellant. In case there was any misunderstanding, the judge encapsulated her conclusions in a carefully crafted and very clear ruling.

Judge's ruling

19. The judge observed that the events subject of the allegations began in March 2010 when the complainant AS first came to the United Kingdom. Events in the complainant's life before that time were of collateral relevance to the issues which the jury would have to decide. However, they were of relevance for two reasons. First, the prosecution had opened to the jury and relied upon the account that AS gave of her life in Hungary. If the prosecution were to be allowed to rely upon this history, the defence must be allowed to challenge it. Second, the jury would be asked to decide whether the complainant's account of the defendants' behaviour since 2010 was correct, and therefore defence counsel should be entitled to examine matters going to credit. This included putting to the complainant inaccuracies and inconsistencies in her account of her life in Hungary.
20. But, there was a limit. By this time, AS had been in the witness box for two weeks. She had already been cross-examined for nearly a week, and most of the cross-examination had been taken up challenging the complainant's account of her "back story" in Hungary. She had been challenged about the precise circumstances in which she lost the care of her daughter. She had been taken through social work reports and confronted by descriptions of her as unreliable and a liar. Miss Ayling had read long passages from the documents to her. The judge considered that very few of her questions were couched "other than in harsh and critical terms". In the light of Miss Ayling's detailed exploration of the complainant's history, she concluded that the jury had heard more than enough of the "back story" to assist them in assessing the complainant's credibility.
21. The additional material that Miss Marsh insisted she was entitled to put to AS took the issues little further. Questioning on these topics would be repetitive. Miss Marsh had plenty to ask AS in relation to matters which were the subject of the counts on the indictment, without trawling further through the "collateral material" prior to 2010.
22. The witness was particularly vulnerable given her background and the fact that she was a witness in a foreign court subject to an English adversarial system. The judge had a duty to ensure she was treated fairly at the same time as ensuring that the defendants had a proper opportunity to challenge the evidence.
23. Accordingly, she ruled that Miss Marsh could select two further points from the "back story" and put them to AS in short questions over no more than the first 15 minutes of her cross-examination that morning. After that, cross-examination on the "back story" and the Social Services' reports from Hungary would cease, save to the extent that pre-March 2010 events were said to involve the appellant directly. The cross-examination was then to move on to events more closely related to the charges on the indictment.
24. Miss Marsh began to cross-examine at approximately noon on 4th November and concluded at about 3pm the following day. She was stopped after approximately 15 minutes, when the judge felt that her questioning was going over old ground. She moved on to questions which still related to the "back story" but which were specific to the appellant and then to questions relating to the counts on the indictment.

Grounds of Appeal

25. This appeal is based on one principal ground and two supplemental grounds. The principal ground is the way in which the trial judge controlled the cross-examination of the complainant AS.

Submissions on restrictions on cross examination

26. Miss Marsh strongly believes that the time she was given was not long enough to cover all the issues in the 'back story' that she wanted to cover on behalf of the appellant. She felt that she was entitled, on the appellant's behalf, to explore even more of the inconsistencies which the Hungarian documents revealed. We pressed her, therefore, on the additional topics she maintained had not been covered adequately by Miss Ayling. She added just one, namely how AS came to be sold into prostitution and how she escaped from it.
27. She complained about the fact that the prosecution were allowed days in which to adduce AS's evidence in chief and that no restrictions were placed on counsel for the first defendant, yet restrictions were imposed upon her. She blamed the witness for the length of time the questioning had taken, accusing her of being evasive and long winded, and the judge for failing to control the witness. She said that her cross-examination could have been concluded in less than a day had the witness simply answered the questions.
28. Miss Marsh also took exception to the suggestion that in a multi handed trial with vulnerable witnesses, defence counsel should be treated as a group amongst whom topics and time should be divided. She believed that she was entitled to conduct her own independent cross-examination of whatever length she deemed necessary on behalf of the appellant. The restrictions placed on her, she argued, had an adverse effect on the presentation of the defence case to the jury. The result was that the appellant did not have the fair trial to which he was entitled. She accused the judge of being over-zealous in the use of her case management powers thereby overriding the appellant's rights in order to give priority to the complainant's rights.

Submissions on the summing up

29. Miss Marsh complained in her written submissions that the judge reminded the jury that it was the defence contention that the two complainants were unreliable and inconsistent, but failed to remind the jury of a single inconsistency or lie in their evidence.

Submissions on alleged Bias and Fresh evidence

30. Miss Marsh accused the judge of bias on the basis of the restrictions imposed upon her questioning and the way in which the judge approached the problem of possible fresh evidence towards the end of the trial.
31. The question of fresh evidence arose in this way. Towards the end of the trial, after closing submissions, the defence discovered that there might be on-line material to establish that the complainant had lied about her current status as a prostitute. They wanted time to explore this material. We understand (although we do not have a transcript) that the judge expressed her concern at the timing of this. For good reason she wished to keep the trial moving. Nevertheless, two days were allowed for the material to be investigated, and it produced results as far as the defence were concerned. Those representing the appellant (and indeed the other co-accused) took the tactical decision to reduce the new material into writing and to put it before the jury by way of admissions, rather than by asking for the witness to be recalled.
32. Miss Marsh now regrets that decision and claims that she might not have made it had it not been for pressure from the judge. She invited us to consider this additional material in the context of the whole history of the trial and her other complaints so as to find that there is a "lurking doubt" and that the conviction is unsafe.

Conclusions

33. Our starting point must be the fact that the witness AS was vulnerable. She was given the benefit of special measures for a reason. She was likely to suffer fear or distress in giving evidence because of her own circumstances and or those relating to the case. At the plea and case management hearing, and at trial, counsel had been reminded of the necessity to avoid repetitive questioning on areas that were common to the defendants. The trial judge was therefore duty-bound to comply with the Criminal Procedure Rules and with the Criminal Practice Directions to ensure that the questioning of the witness was controlled. The court is required to take every reasonable step to encourage and facilitate the attendance of witnesses and to facilitate their participation. This includes enabling a witness to give their best evidence.
34. As was explained in R v Lubembo and Pooley [2014] EWCA Crim 2064, the judge has a duty to control questioning. Over-rigorous or repetitive cross-examination of a child or a vulnerable witness must be stopped. In a multi-handed trial the judge must ensure that the witness is treated fairly over all, and not asked questions on the same topics, to the same end, by each and every advocate. Advocates must accept that the courts will no longer allow them the freedom to conduct their own cross-examination where it involves simply repeating what others have asked before, or exploring precisely the same territory. For these purposes defence advocates will now be treated as a group and, if necessary, issues divided amongst them, provided, of course, there is no unfairness in so doing.
35. The question for us, therefore, is whether there was any unfairness in the restrictions imposed and whether Miss Marsh's questions were likely to be repetitive in the light of the issues covered by Miss Ayling.
36. We are entirely satisfied there was no unfairness. During the course of today's hearing we received a note of the examination in chief and cross-examination of the complainant AS taken by Miss Helen Jones, a noting brief for one of the defendants. It is an extremely full and helpful note and it does not bear out the criticisms made by Miss Marsh. It certainly does not bear out the criticism that the witness was being deliberately difficult and long-winded. Where she was asked short questions which were to the point, she answered in relatively short fashion. Her answers only became somewhat lengthened when the cross examiner put to her long questions containing a large number of assertions.
37. We are also satisfied that the questions Miss Marsh wished to ask and the areas she wished to explore would have amounted to unnecessary repetition. Miss Ayling has covered most if not all of the ground. The defence had plenty of material at its disposal to undermine the credibility of the complainant.
38. Miss Marsh provided no examples of substance to justify her assertion that the judge wrongly prevented her from asking relevant questions. Most importantly, we note that at no time did the judge prevent Miss Marsh from exploring material which was specific to the appellant and or which related directly to the offences charged. She repeatedly stated that Miss Marsh was free to do so. All the restrictions imposed related to collateral issues and credibility.
39. We are satisfied, therefore, that the defence overall, and the appellant in particular, were allowed ample time to cover those areas which required covering, and that Miss Marsh was allowed ample time – over a day of court time – to cover those areas specific to the appellant and relevant to the charge. In truth, the defence were allowed considerable leeway in their cross-examination of the witness, and were allowed to put a great deal of material that was little more than unsupported hearsay, much of which should have been the subject of a bad character application. Far from depriving the appellant of a fair trial, therefore, we are satisfied that the judge showed generosity towards those representing the defendants.
40. Accordingly, we reject the criticism that the judge intervened when she should not have done and that she in any way prevented the appellant from receiving a fair trial. On the contrary, in our view her timely and sensible interventions ensured that the whole process was fair to everyone. She protected the witness from unnecessary and oppressive questioning, but not at the expense of a fair trial for the defendants.
41. The restrictions placed on cross examination were justified and the judge's response to the suggestion that the retirement of the jury should be delayed to allow time to gather fresh evidence was understandable. In any event her reluctance to delay the trial did not prevent her from allowing the defence sufficient time to gather the evidence and put it before the jury in a form acceptable to all.
42. We also reject the criticisms of the summing-up. The summing-up was balanced, fair and accurate. There is no obligation on a trial judge to repeat defence arguments and inconsistencies elicited in evidence by defence advocates, provided of course that the judge gives a summary of the issues and evidence which is fair overall. This is what the judge did.
43. There is, therefore, no substance whatsoever to the complaints made about the judge. She conducted the trial with great care and conspicuous fairness.
44. The single judge, who gave leave without the benefit of the notes that we have seen and before the judgment in Lumembo posed a series of questions. Had he had the benefit of the notes and the judgment we doubt he would have given leave. The principles are now clear. Modern best practice is to consider most of the issues raised in this appeal at the ground rules hearing. Had such a hearing been common practice at the time of this trial, many of the complaints made by Miss Marsh, as she herself appeared to concede, might never have arisen.
45. For all those reasons we are satisfied that there is no "lurking doubt" and nothing to undermine the safety of this convictions. Accordingly, the appeal is dismissed.
_______________________________