England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12 July 2017

THE VICE PRESIDENT:

Introduction

Reporting restrictions apply in relation to the identity of the child complainant.

The appellant was accused of causing a child, whom we shall call "H" to engage in sexual activity. H was 14 years old at the date of the alleged offence and has an autistic spectrum condition. On 22 February 2016 a hearing was held by the trial judge, Her Honour Judge Tapping, at which ground rules for the trial were set and she approved questions to be asked by the defence in cross-examination of H. She also ruled on the admissibility of evidence of sexual behaviour on the part of H and of his "bad character".

The next day, H gave evidence via an intermediary. His cross-examination was pre-recorded under the pilot scheme implementing section 28 of the Youth Justice and Criminal Evidence Act 1999. On 22 August 2016 the appellant was convicted by a majority of the jury of 10 to 2 and later sentenced to 5 years' imprisonment. He appeals against conviction with leave of the single judge, who also granted an extension of time of 44 days, on essentially one ground that it is arguable that the measures put in place to protect the complainant may have undermined the fairness of the trial.

The facts

At about 9.45 pm on 24 December 2014, H, who was then 14, went to a cafe in New Malden where the appellant worked. The complainant alleged that the appellant followed him into the lavatory, kissed him and encouraged him to give the appellant oral sex. The prosecution relied specifically upon:

(i) H's account;

(ii) evidence of H's complaint to his mother and older brother that same evening;

(iii) DNA analysis of the appellant's underpants that revealed the complainant was a contributor to a mixed DNA profile in saliva recovered from the inside front of the underpants;

(iv) the appellant's lies to the police denying sexual contact with the complainant, that were only retracted when the DNA analysis became available;

(v) confirmation from K, a friend of the complainant, of H's account of a conversation at the cafe in which the appellant asked H if he had a girlfriend and appeared shocked when H said that he was gay.

The defence case as set out after receipt of the DNA analysis was that the sexual activity was instigated by H and that the appellant stopped what was happening the moment he recovered from his shock. The appellant gave evidence that the complainant kissed him, put his fingers in his own mouth and then placed his fingers down the appellant's trousers and touched his penis. The defence relied specifically upon the following:

(i) agreed scientific evidence that the finding of saliva inside the appellant's underpants could be accounted for by the appellant's or the complainant's account, and neither explanation was more likely from a scientific perspective than the other;

(ii) agreed evidence of the complainant's behaviour. This included evidence that he had exposed himself to others, enjoyed shocking people to get a reaction, made up stories to get sympathy or interest, mixed truth with fantasy, made unsolicited sexual advances towards other boys, had exposed his penis to other students, had received pornographic photographs from an adult male online, had discussed inappropriate sexual matters with others and had made false disclosures of sexual activity with another schoolboy.

The Judge's Rulings

The judge was invited to rule on applications made by Mr D'Souza for the defence under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999 and the provisions of section 100 of the Criminal Justice Act 2003. The judge had the benefit of full written submissions from the parties and a considerable body of material on H from medical and school reports.

She first identified the issue at trial as whether H had made a false allegation rather than consent. She ruled that evidence could be adduced in relation to incidents and findings between February 2010 and February 2016 when H was aged between nine and 15. They were agreed by the parties and put before the jury in very full admissions.

Summary of the admissions

(i) H had an autistic spectrum condition; autism is a life-long developmental disability that affects how a person communicates and relates to other people, and how they make sense of the world around them.

(ii) H was emotionally volatile lacking age-appropriate social skills and liable to misinterpret situations.

(iii) A consultant psychiatrist, Dr Cassell, who had seen H on several occasions over the years stated in a letter dated February 2010 that H liked to shock others, would say abusive and or inappropriate things and make up stories in order to gain sympathy or interest. She noted concerns expressed by social workers and others about H being a 'fantasist' and mixing truth with fantasy.

(iv) In 2013 a young girl reported that H had exposed his penis to her during a Skype call, requested that her boyfriend provide him with pictures of his penis and told her that he stored on his telephone a number of pictures of males showing their penis erect.

(v) In 2013 a school staff member reported that H had exposed himself to a student whom we shall call J and H's mother had reported that H was using a social networking site, Jingu, to communicate with an adult male. He stored the man's number in his phone contacts, appeared to make arrangements to meet and received photographs of the man's genitalia. H also used a gay dating site called Grindr and communicated with men on that site.

(vi) In 2014 H shared a taxi to school with two other boys, "J2" and "E". The both complained that H had touched them inappropriately during the journey and showed them explicit sexual images. J2 reported that H had asked J2 to expose himself to a friend of H on FaceTime. In December 2014, E's mother complained that she was unhappy with her son travelling in a taxi with H because he showed her son inappropriate images on his telephone and talked about inappropriate sexual matters.

(vii) In 2016, H complained to a student well-being officer that he had engaged in sexual activity with another schoolboy, R. He claimed that he had "tossed off" R. The school investigated and contacted the police. In February 2016 an officer spoke to H for over an hour, during which H did not persist in his assertion he had engaged in sexual activity with R. The incident with R was summarised as "[H] had made these false disclosures about sexual activity with [R] some three weeks before he gave evidence in the present case".

Incidents/behaviour excluded

The judge refused to allow the defence to adduce or ask H about four other incidents indicative of sexualised behaviour, when H was aged seven or eight, on the basis they were too long ago and there was better evidence of his recent sexualised and inappropriate behaviour. They were:

(i) H demonstrated sexual awareness by rubbing himself against the carpet and putting his hands down his underpants;

(ii) H "sexually assaulted" a girl by rubbing up against her;

(iii) H talked about "humping" and regularly pushed girls down and lay on top of them, thrusting his body;

(iv) H stood up in class and claimed that when he was angry he "sucked his brother's willy".

She further excluded:

(i) evidence of an incident in which H, aged 12, exposed himself to a pupil at school deeming it as 'unremarkable';

(ii)H's description of an incident with a taxi driver in 2014, on the basis that it was far from clear H was describing anything sexual and that what he said was untrue;

(iii)H's references to school friends to his having been raped when much younger and his asking them if they had been raped. This too was excluded on the basis that H was probably telling the truth.

Appeal

Ground 1: the prejudicial effect of the judge's rulings

Before us this afternoon, Mr D'Souza has advanced similar submissions to those advanced before the trial judge. He insists that the exclusion of the incidents on which he wished to rely was to give the jury a misleading impression of the complainant. He criticised the judge for placing 'excessive weight' on the age of four of the incidents excluded, as opposed to their potential relevance to the defence and for failing to allow him to put a long standing pattern of H's sexualised behaviour and fantasising before the jury. Had the jury known the extent of H's problems and how deep-seated they were, it is said that this might have affected their attitude to H and their assessment of his credibility.

Furthermore, he complains that the admissions were 'undermined' when, at the resumption of the trial in August 2016, he cross-examined H's mother. He decided, for reasons that escape us, to explore with H's mother some of the incidents that featured in the admissions. Not surprisingly, H's mother was protective of H and maintained that H had grown out of the behaviour described and/or that the incidents were fabricated or exaggerated. Mr D'Souza took exception to this and argued that the cumulative effect of the mother's evidence and the judge's curtailing of defence cross-examination at the ground rules hearing substantially prejudiced the defence. He accused the judge of letting the trial 'go off the rails' and claimed he was "ambushed" by the judge's earlier rulings.

Ground 2: the impact of the judge's questioning of the appellant

Towards the very end of the appellant's evidence the judge asked two questions. She referred the appellant to photographs of his underwear showing the stain in which H's DNA was found and asked this:

"Q. From your explanation of what [H] did to you that night in the cafe, have you any explanation as to why his saliva ended up staining an area 25.5 centimetres tall and 12 centimetres across?

A. After he wet his hand, lift his hand, he put his hand, (?I repeat it again), inside my trousers, how much he touch, when he touch, I wouldn't know.

Q. Did you at any time that evening have an erection?

A. I don't remember."

The transcript shows that the judge did not ask the appellant, as was suggested in the grounds of appeal put before the single judge, whether he had washed his penis after H had left the cafe.

After these questions the judge adjourned for the day and the jury left court. Mr D'Souza immediately complained to the judge about her questions. He understood the effect of them was to elicit from the appellant an admission that he had no explanation for the DNA stain. The judge agreed the question had been unfair. She immediately recalled the jury so that they would not be left overnight thinking of her questions and the answers. She reminded the jury of the conclusion of the forensic scientist, as set out in the admissions, that the scientist's findings in relation to the underwear "could be accounted for by either version of events [H's or the defendant's], and she was not able to determine which of the explanations is more likely". She told the jury that in the light of those findings it had not been fair of her to ask the appellant how he could explain the DNA findings. Having directed the jury in these terms, she asked Mr D'Souza if he wanted her to do more. He did not and expressed his gratitude for her approach and for her directions. He then had overnight to reflect, and the next morning the trial continued.

Nonetheless, complaint is now made about the judge's questions which Mr D'Souza described as 'loaded and unduly prejudicial'. The exact terms of the admission as to the scientific findings on the DNA were said to be crucial to the defence, and the judge's questions cast the admission into doubt. Furthermore, the judge's questions were predicated on the basis that all the saliva came from the complainant and this was not the effect of the evidence.

Ground 3: false impression

As originally drafted ground 3 contained another criticism of the judge in that she had left the jury with a false impression of H by reminding them in the summing-up that they had heard about the complainant "warts and all". However, Mr D'Souza was forced to abandon that ground when it became apparent that the judge never used such an expression. He then sought to add a different ground that prosecuting counsel, Mr Barry, had left the jury with a false impression of H because he had used the expression "warts and all" in his closing speech. Mr Barry said this: "You know about [H], warts and all".

Mr D'Souza complained that the jury had not heard about H "warts and all"; they had heard only selected passages from his history. The only issue in the trial was H's credibility and whether he was a fantasist; Mr D'Souza claimed it was essential therefore that the jury were not misled as to whether or not they had heard all the evidence as to his previous sexualised behaviour and his fantasising.

Conclusions

Ground 1

We do not accept there is any basis for complaint in the judge's rulings. She conducted the grounds rules hearing ("GRH") impeccably. In appropriate cases, where the witness is young or suffers from a mental disability or disorder, advocates may be required to prepare their cross examination for consideration by the court. This applies to all cases, not just those in the section 28 pilot scheme.

Underlying Mr D'Souza's criticism of the process appeared to be the implicit assertion that the judge's directions to ensure the effective participation of the witness somehow prejudiced the defence as a matter of principle. They did not. There is nothing inherently unfair in restricting the scope, structure and nature of cross examination and or in requiring questions to be submitted in advance, in any case involving a child witness or a witness who suffers from a mental disability or disorder. The practice has been approved by this court on many occasions; it is the judge's duty to control questioning of any witness and to ensure it is fair both to the witness and the defendant.

Far from prejudicing the defence, it is the experience of many trial judges that the practice ensures that defence advocates ask focussed and often more effective questions of a vulnerable child witness. The advocate will know precisely what the witness is going to say in chief because they will have the benefit of the pre-recorded ABE interview and can prepare fully. A list of admissions of behaviour or previous inconsistent statements that potentially undermine the complainant's credibility can be put before the jury to cover those issues on which questioning is restricted. The combination of admissions and focussed cross examination can produce a powerful defence case; more powerful that a defence advocate putting to a witness a whole series of propositions only to be met with the answers: "No", "I don't understand" or "I don't remember".

For the avoidance of doubt, nothing in the judgment in SG 2017 EWCA (Crim) 617) should be taken as undermining this approach. The court did not hold, as some commentators have suggested, that a judge should only require a list of questions in advance for the court's approval in exceptional cases. In paragraph 62 of the judgment, the court simply reminded trial judges of the potential for prejudice if a defence advocate is wrongly prevented from pursuing a legitimate line of questioning. In paragraph 63, the court declared that where a witness had no difficulty in understanding the questions, requiring an advocate during cross examination to prepare a list of questions should be regarded as an exceptional course.

The witness in SG's case was not a child and did not suffer from mental disorder or difficulties. She was described as a mature and articulate young woman who, not unusually for a complainant in a sexual case, became distressed during cross examination. However, she had no difficulty in following the questioning. There was no reason to suppose that having had a break and recovered her composure cross examination could not continue in the normal way. The court held that the Recorder was therefore wrong to treat her as a 'vulnerable' witness who required the protection of the court, to the extent of making defence counsel submit his remaining questions to him for approval, during his cross-examination.

HH Judge Tapping required the defence to submit their proposed questions in advance of cross-examination for approval, in this case, for good reason, given the complainant's age and level of difficulties. There can be no complaint about her direction in principle and there has been no complaint about any specific restrictions she imposed. Mr D'Souza failed to identify any issue about which he wished to cross examine and was prevented from doing so. Nothing arose during his cross examination that he had not foreseen. Had it done, he was perfectly entitled to seek the judge's consent to ask questions not previously authorised. Judges will accord an advocate, in this position, a degree of leeway provided, of course, their request is reasonable.

We turn to the excluded material. In her ruling on H's character and previous sexual behaviour, HH Judge Tapping considered a large quantity of material. She analysed it with conspicuous fairness and care; she allowed the defence to adduce in evidence and to question H about what Mr Barry rightly described as a 'broad swathe of material and incidents which were prejudicial to H'. The material included a psychiatrist's concerns dating back many years as to H's behaviour and his mixing truth with fantasy, any incidents of making false allegations where proven or likely; relevant incidents that H was sexually precocious and prone to making unsolicited and unwanted sexual advances to other males in the three years before the incident; H's inability to 'read situations appropriately', and any incident that significantly impacted on his credibility.

The additional material that Mr D'Souza sought to adduce would not have added significantly, or at all, to the picture of H as a troubled boy, liable to misinterpret signals and with heightened sexual awareness that manifested itself in inappropriate sexual behaviour. The admissions from Dr Cassell's letter of February 2010 could have left the jury in no doubt that H had long standing problems.

It is not true, therefore, to say that the jury would have been left with the picture that H had a trouble-free childhood before he reached his teens. Furthermore, H's mother confirmed in her evidence that H did not understand boundaries as a child, that he liked to shock and provoke a reaction, and mixed truth with fantasy, albeit she felt he was 'growing out of it'. There was ample evidence upon which the defence could advance their argument that she was wrong and the complainant had a long and continuing history of inappropriate behaviour and fantasising. Far from undermining the admissions as Mr D'Souza claimed, the mother's evidence arguably supported them.

In any event, we note that the material about which complaint is made was elicited by Mr D'Souza himself in cross-examination. If there was any 'ambush', which we do not accept, it was set by the defence. If the ground had shifted in a way that prejudiced the defence, it was always open to Mr D'Souza to ask the judge to revisit earlier rulings, or, in an extreme case, invite her to discharge the jury; no such applications were ever made.

Accordingly, we are entirely satisfied the judge properly applied the relevant law and practice designed to strike the difficult balance between protecting the interests of a young and vulnerable witness while ensuring that a defendant receives a fair trial. There was no unfairness in the judge's rulings or risk of injustice to the appellant and the exclusion of the material, taken alone or in conjunction with the other grounds, do not undermine the safety of the conviction.

Ground 2

In our view, the judge was overly generous in accepting her questions had been unfair. They were not prejudicial to the appellant; the appellant essentially repeated his explanation of how the complainant's saliva had been deposited on his underpants. If, as Mr D'Souza alleged and the judge accepted, she did ask an unfair question, she then behaved impeccably. She immediately corrected the error. She reminded the jury of the exact terms of the admission Mr D'Souza said had been undermined, and she directed the jury that she had been unfair to the appellant in asking him for an explanation. At that time Mr D'Souza seemed satisfied with what the judge had done, and in our view rightly so. If there was any possibility of prejudice in the judge's questions, it had been removed.

Ground 3: "Warts and all"

First, as we have already indicated, the judge did not use this phrase in her summing-up, it was prosecuting counsel in a 'forensic flourish'. Second, even if the jury did not know of every 'wart' in H's background, they knew enough for the purposes of the trial. They knew H was a fantasist and that he had been involved in overtly sexualised behaviour for some years; they knew he misunderstood other people and liked to shock. In her summing-up, the judge reminded the jury of his background very fairly, directing them to look at it all carefully in determining the reliability and truthfulness of H. Her summary of the material was entirely fair and balanced. If, therefore, Mr Barry, had given the jury a false impression of H's character or background, as Mr D'Souza claimed, the judge's summing up would have corrected it.

Finally, we note the powerful prosecution case against the appellant. There was DNA evidence of a sexual encounter between an adult and a child. The scientist may have accepted that technically both the prosecution and the defence scenarios could account for the DNA on the inside of the appellant's underpants, but the jury may have felt that the defence scenario did not come close to an adequate explanation. On the appellant's account, H, a child, tried to kiss him, unzipped his trousers, put his hand inside the appellant's trousers and into his underpants and all without the appellant's consent. Furthermore, he lied about what happened until confronted by the DNA evidence.

It follows that this appeal was entirely unmeritorious. Far from the trial 'coming off the rails' as Mr D'Souza put it, the judge kept the trial entirely on track; and far from criticising her, we commend her for the admirable way in which she conducted the trial. With great respect to the single judge, we do not understand why leave was granted.

For all those reasons, the appeal is dismissed.