England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK

		Royal Courts of Justice Strand, London, WC2A 2LL
		4/11/2016

Lord Justice Simon:

1. On 6 and 7 July 2015 in the Crown Court at Snaresbrook (before Her Honour Judge Lees) the appellant (now aged 23) was convicted (by a majority) of charges indicted as counts 1A and 2A, sexual activity with a child contrary to s.9 of the Sexual Offences Act 2003, and count 3 attempted rape of a child.
2. He appealed against these convictions by leave of the Single Judge.
3. At the conclusion of the argument we announced that the appeal would be allowed, the convictions would be quashed and a retrial would be ordered. These are our reasons.
4. There was a large measure of common ground between prosecution and defence at the trial.
5. During the evening of 10 August 2014, a 13-year-old (whom we shall refer to as 'A') left her grandmother's house, following an argument with her mother who had confiscated her mobile telephone. After walking around for several hours, she was tired and upset. It was then that she encountered the appellant. He called her over to his car which was parked in a golf club car park, and they began talking. At some point she got into his car; and it was not in dispute that sexual activity occurred, including digital and oral penetration. They were together for about two hours before he dropped her off near her grandmother's home.
6. The prosecution case was that he had taken advantage of her, knowing she was under the age of consent and that she was not in fact giving true consent to the sexual activity.
7. Count 1: was a charge of assault by penetration, contrary to s.2 of the Sexual Offences Act 2003. The particulars of the offence being that he intentionally penetrated the vagina of A, a girl aged 13, with his finger; she not consenting to the penetration and he not reasonably believing that she consented. Count 1A: was an alternative count of sexual activity with a child, contrary to s.9(1) of the Sexual Offences Act. The particulars being that the appellant (a person over the age of 18) intentionally touched A sexually, she being under the age of 16 and he not reasonably believing that she was 16 years or over. Count 2: was a charge of rape, contrary to s.1 of the Sexual Offences Act: the particulars of the offence being that he intentionally penetrated the mouth of A, with his penis, she not consenting to the penetration and the appellant not reasonably believing that she consented. Count 2A: was an alternative s.9(1) charge on the basis (again) that the appellant (a person over the age of 18) intentionally touched A sexually, she being under the age of 16 and he not reasonably believing that she was 16 years or over. Count 3: was a charge of attempted rape.
8. The defence case acknowledged that they had engaged in sexual activity (he accepted that he touched her vagina with his hand and penetrated her mouth with his penis) but that this was with her consent and in circumstances that he reasonably believed that she was over 16: she had told him she was over 16 and he honestly believed this. So far as count 3 was concerned, he denied attempting to penetrate her vagina with his penis, although she had asked him to.
9. The issues for the Jury were consent and whether the appellant believed she was 16 or over, and (count 3) whether the appellant had attempted to rape her.
10. A gave evidence about the argument with her mother. She had been walking for hours when she saw a man on the other side of the road who was trying to get her attention. At first she ignored him and walked faster. It then started raining. Sometime later this man drove past and tried again to get her attention. She carried on walking; and he then pulled into a car park. He called her again and as she was now tired and cold she decided to go over to him. He asked how old she was and she told him she was 13. She also said that she was lost. She thought he said that he was 18. She got into the car, and he drove to the back corner of the car park and rolled a joint. They talked, and he then began kissing and touching her, before he drove away from the car park to a quieter area and suggested she moved to the back of the car. He said it would be warmer and more comfortable. She moved into the back of the car, but now regretted getting into the car and felt something bad was going to happen. He got into the back with her and rolled another joint. He asked if she was a virgin. He started kissing her and touching her breasts. She froze. He began to hold her more tightly and pulled her onto his lap, forcing his tongue into her mouth. He lifted her top and removed her tights, shoes and knickers. He was saying it would be OK and he would not hurt her. He put his fingers in her vagina. He was asking her to do things, and she tried to say that she did not know how, and did not want to. He pushed her head down onto his penis and told her to suck it. She went along with this as she was afraid of what he might do. He lifted her up and asked if she wanted to have sex. She said she did not want to as she was too young. He tried unsuccessfully to penetrate her vagina with his penis. Matters ended when he ejaculated and he returned to the front of the car. She put her clothes on and he said he would take her home. On the way he asked her to suck his penis again and was unbuttoning his jeans. She said 'no', and kept to herself. She directed him back to the area where she lived and he dropped her off.
11. She accepted that he was not aggressive and had not fought him off, and that she did not make an effort to get out of the situation. She denied she was a willing partner and that she had told him that she had had sex before. She maintained that she had told him her real age.
12. A's mother also gave evidence. She told the jury that A had arrived home at about 10.30-11pm. She had seemed pale and distressed. When she asked her how she had got home, she had told her that someone had given her a lift. She knew something was not right; and when A went to her room she could hear her crying. It was not until the following day that she spoke of the events of the previous evening. The police were then called.
13. The appellant was arrested a week later and initially denied that there had been any sexual contact with A, saying that they had just talked and he had driven her home. However, in interview, he gave an account of consensual sexual activity in the car. He said that he did not believe her to be under age.
14. He gave evidence at trial that he was in his car in a car park, rolling a cigarette, when he called A over and they began chatting. He had gone there to smoke because his family did not approve of him smoking. He thought she seemed like a nice girl and was hoping to get her number. He denied that he was the same man she had seen earlier. They had talked for a few minutes and he had asked her age. She said she was going to be 19 and gave him a false name. He thought she was an adult because of the way she looked and conducted herself. She seemed around the same age as his wife, who was 18 at the time. She got into the car at his invitation and they talked for a while about their lives and their families. He decided to move the car to the back of the car park as people were coming in and out.
15. They continued talking, and then things became physical. They kissed and touched each other. He then drove a short distance away and parked in a quieter place. The sexual activity continued there, and she agreed to his request for oral sex. She took off her shoes, tights and knickers and rubbed her vagina against his penis, but he was put off by her unpleasant odour and did not try to penetrate her vagina with his penis. This was all initiated by her. He ejaculated into his hand. Afterwards, he asked whether he could drop her home and she said, yes. He stopped the car where she told him to. He felt let down when she refused to give him her number. There was nothing about her that gave him cause to think she was under age or that she was not truly consenting to the sexual activity.
16. When he was arrested a week after the incident, he had been shocked. Her allegations were lies. Nothing was done against her will and she had lied to him about her age. He accepted that he had initially lied to the police, but this was out of stress and confusion.
17. Several character witnesses were called in his support.
18. The Jury heard that the appellant did not have any convictions or cautions, but had four fixed penalty notices.
19. These fixed penalty notices (or PNDs) were referred to in the Agreed Facts which were put before the Jury in the following form:

1. The Defendant … aged 22 years old has no convictions or cautions

2. The Defendant has been arrested or dealt with by the police on the following occasions:

(a) 08/01/12: he was arrested for Criminal Damage to a flower basket outside a public house [and] given a 'Fixed Penalty notice.'

(b) 12/11/12: he was not arrested but given a fixed penalty notice for £80 for making off without payment.

(c) On two occasions in 2013 he was not arrested but given a 'Cannabis warning' for possession of cannabis.

(d) 13/02/14: following a domestic argument with his wife the Defendant was arrested to prevent a breach of the peace but was released after brief detention at the police station as the Custody Sergeant believed that there 'was no further risk of a breach of the peace.'

20. We should note our surprise that these matters were ever put before the Jury. The explanation appears to be that these matters were raised by the defence with a view to persuading the Judge that the appellant should be given a full good character direction in the summing up. This is a matter to which we return later.
21. In Hamer [2011] 1 WLR 528 this Court addressed the legal effect of fixed penalty notices, introduced under the provisions of Criminal Justice and Police Act 2001.

[15] It is quite clear that the issue of a notice is not a conviction. It is not an admission of guilt nor any proof that a crime has been committed. The scheme of the Act makes that clear. Any person reading the form would plainly understand that it is not to be regarded as a conviction and will not be held against him save in the respect mentioned. It seems therefore clear, both as a matter of the statutory scheme and as a matter of what a person accepting such a notice would reasonably be led to believe, that he was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character.

The admissibility of PNDs in relation to evidence of good character

[16] It is against that background that it seems to us to follow that the issue of such a notice was not admissible as an admission of an offence which would affect this defendant's good character. It did not impugn the good character of the defendant and had no effect on his entitlement to a good character direction. In short, it was irrelevant and it should not have been admitted.

22. Five brief points may be noted. First, as the Court observed in Hamer at [17], the prosecution might (in some circumstances) wish to adduce evidence as to the facts to which the PND related. However, that was not the case in Hamer and was not so in the present case. Second, the Court held in Hamer at [18] that the Judge had compounded the error in his direction to the Jury by implying that the defendant in that case had committed some form of criminal offence, rather than explaining what a PND was, and that it merely evidenced a suspicion by a police officer that an offence may have been committed. That was a misdirection. Thirdly, despite the erroneous admission of the PND for a minor public disorder offence, the Court held that the s.47 assault conviction in that case was safe, giving its reasons for doing so. Fourth, we understand that the PND provisions have been slightly changed since the decision in Hamer but not materially so far as the present case is concerned. Finally, there is no relevant distinction to be drawn from the PNDs in the present case and the arrest for breach of the peace. The appellant had made no admissions about the latter allegation and the incident was irrelevant to the issue the Jury had to decide.
23. We turn then to the Judge's direction on the appellant's character.
24. It is clear that there was a discussion about the case of Hunter [2015] 2 Cr App R 9 at p.116 on 2 July 2015, before the Judge began her summing up. The discussion concluded at 3.00 pm and the issue was left on the basis that counsel would look at Hunter overnight.
25. The Judge began her summing up at 3.16 pm and concluded for the day, before she reaching her direction on character.
26. The next day she addressed the issue shortly with counsel in the absence of the Jury. She indicated that she would direct the jury:

I am going to say that … the fact that someone has acted in such a way in the past especially in the matter of dishonesty may mean that they are less likely to than might otherwise be the case to tell the truth. It does not follow he is incapable of doing so, and leave it at that.

27. Counsel then appearing for the appellant is recorded as saying she had no objection to that course.
28. Shortly after this the jury came into court and the Judge directed them in the terms she had indicated, referring to his lack of criminal convictions or cautions as set out in §1 of the Agreed Facts.

He does, however, have a number of matters recorded against him. They are set out in that document. So for causing criminal damage, he received a fixed penalty notice. He has two matters for possession of cannabis in 2013. He has a matter for dishonesty and it is called here 'making off without payment'. That was in 2012. What he did it would seem is fill up his car with petrol and not pay for it.

The fact that someone has acted in such a way in the past, especially in relation to that matter of dishonesty may mean that they are less likely than otherwise might be the case to tell the truth. It does not follow, of course, that they are incapable of doing so.

He does not have, as you know, any matters involving sexual allegations recorded against him. That means you can weigh that fact in the defendant's favour when you are considering the evidence in the case.

The fact that he has not been convicted of any sexual offences in the past or been cautioned for any may mean it is less like that he acted as is now alleged against him. However, the judgment as to what weight should be given to that fact and the extent to which it assists on the facts of this particular case are a decision for you to make. In making that assessment you are entitled to take into account everything you have heard about him, including the evidence from his wife that he is a devoted father. They were separated at the time that this occurred but she is standing by him and they are back together now.

29. Mr Wolkind QC (who did not appear at the trial) submitted that there were two errors in this part of the summing up. First, having wrongfully allowed the matters 'recorded against him' to go before the Jury, not only did the Judge imply that the appellant had acted in a criminal way (albeit, short of committing an offence or receiving a formal caution), she expressly stated that the fact that someone has acted in such a way in the past, 'may mean that they are less likely than otherwise to tell the truth'. That was a misdirection which went very much further than the misdirection in Hamer. The appellant had been entitled to a full good character direction.
30. Secondly, contrary to the guidance in Hanson [2005] 1 WLR 3169 at [13], the Judge equated the fixed penalty notice in relation to an act of dishonesty (making off without payment) with evidence of untruthfulness, and gave a modified good character direction. She then proceeded to leave it to the Jury to decide what weight should be given to this fact, and the extent to which it assisted them. This, he submitted, was contrary to the guidance given in Hunter (see above) at [79].
31. Whether taken individually or collectively, Mr Wolkind submitted that these errors render the convictions unsafe.
32. For the Prosecution, Mr Weaver frankly accepted that the fixed penalty notices, and implicitly admission 2 (d), should not have been put before the jury, and accepted that the direction on character was defective. However, he submitted that the convictions were nevertheless safe. In support of this argument he pointed out that the Jury had seen A give evidence both in her ABE interview and in court, the appellant had given evidence and called witnesses as to his good character and the Judge had properly drawn the Jury's attention to this evidence. On this basis it was fully open to the Jury to decide who was telling the truth. He also drew attention to [98] of Hunter, where the Court had observed that if the defence advocate did not take the point on a character direction at trial or if they agreed with the Judge's proposed direction which was then given, it is a good indication that nothing is amiss.
33. We have already set out why we consider that §2 of the Agreed Facts should not have gone before the jury.
34. It is less easy to be sure of the basis on which it had been introduced by reference to the categories described in Hunter at [81]-[88]. It was not (d), 'previous convictions/cautions adduced under s.101 [of the Criminal Justice Act 2003] by the defence', since there were no convictions or cautions; and it was not (e), 'bad character adduced under s.101 relied on by the prosecution,' since the prosecution had not sought to rely on them. It appears to have been (f), 'bad character adduced by the defence under s.101 and not relied on by the Crown.' In cases of such 'reprehensible conduct' it is for the Judge to decide what direction should be given, with the ultimate test being one of fairness.
35. The defence plainly intended that the facts should form the basis of a full good character direction both as to credibility and propensity. In the event, the evidence in §2(b) of the Agreed Facts which, on the basis of Hamer, did not amount to an admission of guilt and should not have affected the appellant's right to a good character direction, was placed starkly before the Jury, accompanied by a direction which left it open to them to weigh it in the balance against the appellant on the issue of his credibility.
36. The error was then compounded by equating dishonesty with untruthfulness. As the Court observed in Hanson at [13]:

Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, untruthfulness is an any issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by making false representations.

37. Instead of a clear direction on the credibility limb of the good character direction the Jury was given a direction which was both mistaken in analysis and unclear in expression.
38. In our view the summing up on character contained material misdirections.
39. Nor are we persuaded by Mr Weaver that this is a case where, notwithstanding the errors we have identified, the convictions are safe. It is clear that the credibility of the appellant was a crucial element in the case. As the Judge expressed it in the course of her summing-up.

The reality is that there is a direct conflict between what [A] says happened and the defendant says happened …

40. In these unsatisfactory circumstances we concluded that the convictions were unsafe and should be quashed, and we ordered a retrial.