England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
HIS HONOUR JUDGE DONNE QC
T20167388

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2017

Lord Justice McCombe:

1. On 23 March 2017 in the Crown Court at Inner London, after a trial before HHJ Donne QC and a jury, the appellant was convicted of an offence of indecent assault (count 1 on the indictment) contrary to s.14(1) of the Sexual Offences Act 1956. He was acquitted by the jury on three further counts (counts 2-4) alleging sexual intercourse with a girl under 16, contrary to s.5 of the same Act. He was acquitted by the direction of the judge on one further count (count 5) alleging a further offence under s.5.
2. On 24 March 2017, in respect of the conviction on count 1, the appellant was conditionally discharged for 12 months. He appeals against conviction by leave of the Single Judge. We heard the appeal on 19 October 2017 and at the conclusion of the hearing we announced our decision that the appeal would be allowed and the conviction would be quashed for reasons to be delivered later. These are our reasons.
3. The background facts and the salient features of the cases of prosecution and defence were as follows.
4. The complainant on all the counts was K, the appellant's half-sister. (They have the same father but different mothers.) The allegations related to the period 2000-2004 when the father had left K's mother and when K would go to stay with him at weekends. She was of primary school age at all material times and the appellant was some six years older than her. He had moved to the UK from Jamaica.
5. K said that while she was staying with her father, she would frequently be left alone for hours with the appellant. She alleged that he began bullying and punishing her; this progressed to physical abuse and then to sexual abuse when she was aged 7 or 8. The four counts that were left to the jury alleged the following:

Count 1 – sexual touching of her leg while they were sharing a bed;

Count 2 – the first incident of him making her have sexual intercourse when she was 8 or 9;

Count 3 & 4 – further incidents of him making her have sexual intercourse.

6. The defence case was one of absolute denial.
7. K's evidence was that she and the appellant were often alone while her father was at work. He bullied her and punished her; he began hitting her with a belt. She did not tell anyone or show anyone the marks. He then began touching her sexually by rubbing and stroking her leg and her thigh while they were in the bed that they shared. She did not really understand what was happening. She said she was 7 or 8 at the time. The appellant's acts then escalated to him kissing her, climbing on top of her and in the end penetrating her vagina with his penis. It was very painful. There was a lot of bleeding, which made him stop. She said it happened on several occasions – she was not sure how many as she had tried to block it out. She kept asking her mother not to make her go to her father's, but her mother said she had to. She said that they stopped making her go when she was about 11. When she was at college, she told her friends. This was the first time she had told anyone. They advised her to tell her mother, which she did when she was 18. It was three years later when she reported the matter to the police. She said that when she was 16 she had an internal medical examination and was found to have scar tissue and polyps and she said she had told the doctor that she had been sexually abused.
8. In cross-examination it was put to her that the allegations were fabricated. Various matters were put to her. She had not told anyone about the abuse, even her sister; no one saw these alleged injuries from her being hit with a belt or suspected that she was being abused; she was vague and unclear about dates and other important details such as how many times the appellant had sex with her and when; she claimed to have bled after intercourse but she accepted that there was no other evidence to support this. It was suggested she wanted attention and resented the appellant's close relationship with their father.

A close friend of the complainant, Christiana Reyes gave evidence confirming that in their second year of college the complainant told her that she had been a victim of inappropriate sexual conduct at her father's house and at a family friend's house. She had said that this had happened a few times. Miss Reyes said that she did not press K for details and did not ask who the perpetrator was as K was very upset and seemed to feel guilty.

9. K's mother gave evidence that there was a time when K had stayed with her father over some weekends. Often the complainant did not want to go, but she did not know why. K was at home from university when she wrote her mother a letter, disclosing the abuse. The letter did not say who the perpetrator was, but the mother guessed. The mother said that K was very upset but did not want to go to the police.
10. K's older sister agreed that the complainant was often subdued and quiet as a child, and would be tearful when she was going to her father's. Eventually K disclosed that the appellant had persistently raped her from the age of 6 and beaten her with a belt. It had never crossed her sister's mind that she was being abused.
11. The appellant gave evidence denying the allegations. He said that he still lived with his father, but had two children of his own. He was of good character and was employed as a customer service manager. He agreed that there were times on a Saturday when he and the complainant were alone in their father's flat while he was at work, although sometimes an older cousin was there. There was a period when his mother lived with them, having come over from Jamaica, and he was never left alone with the complainant while his mother was there. He recalled his mother, who was strict, telling the complainant off one day and she did not like it. He denied that he ever bullied the complainant, or hit her, or anything else alleged. He agreed that they shared a bed, "top and tail" as she had described, but there was no sexual touching, and no intercourse. These allegations, he said, had "torn him apart".
12. In cross-examination he said that when he lived in Jamaica as young boy, he was disciplined by his grandmother who would hit him with her hand or with a belt. His mother was strict but was not like that. He denied that he resented the complainant when she visited.
13. The appellant's mother gave evidence. She said she came to the UK from Jamaica on 18 December 1999 and lived with the appellant and his father thereafter, apart from six months in 2002 (3 April to 5 October 2002) when she was back in Jamaica. She remembered the complainant staying with them approximately two weekends a month. The father was at work on a Saturday; the mother did not work Saturdays and did not leave the children alone. She never saw any injuries on the complainant and bathed her regularly when was aged around 8. She saw no marks on her and she never saw any bloodstaining on the bedsheets. K had, she said, stopped coming to stay when she was still in primary school. The mother recalled the one occasion when she had cause to tell the complainant off and the complainant had been a little upset about it. The mother never saw anything that caused her concern and never had any problem with the complainant.
14. On the appeal three grounds of appeal were raised. Two concerned the learned judge's directions to the jury and the third concerns the circumstances in which the jury reached their final verdicts on 23 March.
15. Before dealing with the specific grounds we should refer to certain preliminary submissions made on behalf of the appellant by Mr Sergent of counsel, who appeared before us for the appellant, as he did in the Crown Court.
16. Mr Sergent argued that this was an inherently weak case for the Crown. He asked us to note that this was a case in which no complaint had been made for a number of years. No observation had been made by any adults of the injuries which K said she had suffered and there was no evidence of blood being seen on clothing or bedding after the first incident of intercourse, which was a prominent feature of K's description of that offence. K had not identified the appellant as her abuser in her initial complaints and refrained from doing so for some time; she gave little information as to the time when or as to the location where the offences were said to have occurred. She gave details of assaults by a family friend at her father's home during the night time. Her final account was of abuse during the day time. She also said that she had suffered longstanding damage to her vagina as a result of abuse and that she had seen a doctor who had confirmed vaginal scarring and had told her that she could opt for surgery to repair the damage. She told her sister that she might not be able to have children. The medical records were obtained and, as was agreed between Crown and defence, they disclosed no abnormalities; nor were there any references to sexual abuse or any potential surgery.
17. Mr Sergent argued that counts 1 and 2 essentially stood or fell together and it is, he said, hard to see how the jury convicted on one but not of the other. He accepted, however, that the jury may well have acquitted in respect of counts 3 and 4 because of what he says was the vagueness about the accounts of subsequent acts of intercourse. Rightly, Mr Sergent did not argue that the verdicts on counts 1 and 2 were inconsistent in the legal sense. He accepted that, while unsure of the truth of some of the allegations, they concluded that there had been some indecency short of intercourse. However, Mr Sergent submitted, the central issue was K's credibility and that the defects which he wished to point out in the summing-up went to that important question.
18. Mr Sergent referred us to a remark made by the judge to K's mother, in the absence of the jury, at the conclusion of her evidence. He said to her that he had found K to be "a thoroughly delightful and impressive young woman". Miss Farrelly for the Crown agreed that the judge did say this. Mr Sergent accepted that, as the remark was made in the absence of the jury, it could not, of itself, render the conviction unsafe, but (he submitted) it indicated the judge's own view of the central witness, whose credibility was the main issue in the case, and submits that that view may have coloured his later directions. We say immediately that such a remark should obviously not have been made. We do not hesitate from saying that it was a wholly inappropriate comment.
19. We asked Mr Sergent whether it would be part of his case that the remark gave rise to any point of "apparent bias" on the part of the judge. However, Mr Sergent disavowed any such submission.
20. The first ground of appeal related to a passage in the summing-up in which the judge referred to the character of K. The appellant himself was a man of good character and the judge gave a proper and uncriticised character direction in his favour. However, with regard to K, at the point at which he was leading up to a summary of her evidence, he then said this:

"The other thing about [K]: I have told you about the defendant's character, but there is no suggestion that [K] is somebody who has ever been in trouble with the police or ever committed any offence or has a reputation for untruthfulness or anything of that sort. So, bear that in mind. In a sense, it is a level playing field here between [K] on the one hand, and the defendant on the other."

21. Mr Sergent argued that this was a misdirection in law. He said it undermined the direction given in the appellant's favour and he pointed out that no evidence of K's character had been before the jury, one way or the other.
22. For the Crown, Ms Farrelly submitted, that there was nothing irregular in the comment made. The judge was simply assisting the jury in weighing up the individual accounts. It had not been suggested that K was otherwise than of good character.
23. The matter was revisited with the judge, in the absence of the jury, at the conclusion of the summing-up. The short exchange was as follows:

"One matter if I could raise as a concern, your Honour: your Honour made the observation, with regards to [K's] character, that there is no suggestion that she has been arrested or anything of that sort. That's never been evidence that's been before the jury. My slight concern is it rather negates the good character direction –

JUDGE DONNE: Well, it doesn't at all. I used the words "level playing field".

MR SERGENT: Well, the good character direction isn't really –

JUDGE DONNE: The simple fact of the matter is, there has been no suggestion that she is somebody of anything other than good character, and there's no suggestion that she was a reputation for not telling the truth or anything of the sort.

MR SERGENT: There hasn't been, but …

JUDGE DONNE: And I didn't elide it with the character direction, quite deliberately; I only did it when I came to deal with her evidence."

24. As we said to counsel in the course of argument, it is the universal experience of the members of the court that directions of the type here in issue are never given in summing-up to a jury. We asked whether the point had arisen in any reported authority and both counsel told us that they had been unable to find any case dealing with the point.
25. In considering the helpful arguments of counsel, we considered that in the vast majority of cases, it will be positively undesirable to direct a jury in the manner in which the judge did in this case. The burden of proving guilt, so that the jury is sure, is on the Crown. One element of our procedure in securing that a jury has to be sure of the guilt of an accused person of good character, before convicting him or her, is to direct the jury that his or her good character is a matter that they must bear in mind, in the accused's favour, in two respects: first, with regard to his or her credibility; and secondly, as suggesting that it might be less likely than otherwise might be the case that he or she should commit an offence now. Those elements in an accused person's favour are expressly stated to each jury. Unless a jury hears (for good reason) that a Crown witness is not of good character, they will no doubt assume that there is nothing to speak against his or her credibility.
26. We consider that, in all but a very exceptional case (of which we can think presently of no examples), judges should refrain from directing juries in the manner that the judge did in this case. We think that Mr Sergent is right in saying that, to do so, is to "water down" a protection that our procedure affords to an accused person of good character, and to reduce, to that limited extent, the burden of proof on the Crown. In our judgment, this was a material error in the summing-up.
27. Next, Mr Sergent argues that the judge gave directions that diluted, or even negated, the points that the defence sought to make about the discrepancy between the evidence that K gave about the medical advice received and the contents of the medical records of those matters.
28. Mr Sergent told us that, having had sight of the medical notes before trial, he appreciated that they appeared to diverge from what K had said to the police in her recorded interview. Some five weeks before trial, he invited the Crown to agree certain facts derived from those records, thus giving opportunity to the Crown to call any witness that they might wish to counter the impression that the records created. The Crown did agree facts as follows:

"The following facts are established from those records:

a. [K] attended on 27/5/2009 and was prescribed the contraceptive pill. No gynaecological issues were noted;

b. [K] attended on 6/9/2010 during which she complained of recent post coital (sexual intercourse) bleeding. The doctor examined [K] and the following results were recorded:

i. On examination no abnormality detected;

ii. Normal uterine cervix (neck opening to the uterus) no erosion or abnormality seen;

iii. On examination no lymphadenopathy (no disease of the lymph nodes);

iv. On examination vaginal speculum (instrument used to hold open the vaginal opening for the inspection of the vaginal cavity) examination. No abnormality detected, vagina normal;

v. On examination external female genitalia no abnormality detected. Vulva (external genitals) normal.

c. There is no recommendation for surgery recorded in the notes.

d. There is no reference to [K] being unable to bear children in the notes.

e. There is no record of [K] disclosing that she had been the victim of sexual abuse, rape or any other form of sexual offending during her consultation on 6/9/2010 or at any other consultation."

29. In summing-up to the jury on the issue of the notes, the judge summed up K's evidence in this way:

"… it's at this point that she was told about what the medical records show.

What she said was:

"I had an internal examination. I was told that there was scar tissue and the doctor identified polyps."

And she described what she understood polyps to be, and that she could opt for surgery. She was told, in effect, they might go away by themselves or surgery was a possibility. And she said:

"I told the doctor that I had been abused as a child. I told my sister that I had scarring and that I felt I might not be able to have children."

And the dates of her visits to the Waldron Centre – one in May 2009, and the other in September 2010 which is the occasion when she had an internal examination – were put to her, and she was asked about the disparity between her account and what is in the medical record. She replied:

"I can only go by what I was told. I recollect him explaining to me what polyps are. I would not have put myself through the belief of what I was told … "

In other words, she was saying, "I believe I've got these problems, I wouldn't put myself through this if I hadn't been told that."

30. The judge then proceeded to comment on that evidence as follows:

"Now, can I just mention this, ladies and gentlemen: what you have is a record; the record is set out in the agreed facts. The agreed fact is that that is what the record shows. You have not heard from the doctor. You do not know how confident the doctor was; you do not know how accurate the record was, and so on. So, it is perfectly fair that the disparity between the record and what [K] has told you has been identified and brought to your attention, but please bear in mind it is just a record, and the record is only as good as the record-maker.

[K] says, "This is what I was told." and she was not of course saying that she was told she had to have surgery; she said that it was an option for the future. She said that the option was that she could have the polyps frozen if need be, or they might go away of their own account. And she said, "Well, I can't explain why there's no reference to the sexual abuse because I did tell the doctor about it."

31. Mr Sergent argued that the comment was unfair, and indeed grossly so. The notes had been served well in advance. There had been no suggestion that they failed to record accurately the purport of what occurred at the relevant consultation and no evidence had been called to rebut the impression that the records created. He submitted that the judge's comments were not merely a recitation of the argument of the Crown, but an adoption by the judge of it. On such an important point in the defence case, it was said, comment of this character could not be overcome by the standard direction (as given in this case) that the jury should only accept any apparent view of the facts seemingly expressed by the judge if they agreed with it.
32. Mr Sergent argued that matters were made worse by a further passage, recorded at p.52A-D of the summing-up transcript, in these terms:

"Then, in response to a question I asked, she said that in that statement to police in August 2011, she had told the police about going to see the doctor and had given the police permission to access her medical records, and the point that is made is, well, if she thought the medical records were contradict her, why would she say to the police, "Go and have a look at my medical records"?"

33. Mr Sergent submits that this served to endorse K's explanations and excuses for the discrepancies between her evidence and the medical records.
34. Mr Sergent's final point, concerning the summing-up, was what he submitted was the unsatisfactory way in which the judge summed-up the evidence concerning the periods in which the appellant's mother had been living at the appellant's father's house and the periods when she was absent in Jamaica. The judge made this comment about the period of the mother's absence from April to October 2002:

"Marlene Green, Travis's mother, who confirmed the date she arrived in this country: 18 December 1999. So, [K] would have been six; the defendant would have been 12. She remained in this country until 3 April 2002, by which time [K] was nine, and she was away for six months almost exactly, returning on 5 October 2002. So, six months in Jamaica.

In a sense, it is entirely a matter for you but that actually rather fits in with a lot of the time that [K] seems to be talking about when she says it was about eight or nine, and she thought it had gone on for about a year. But that is entirely a matter for you."

35. As Mr Sergent pointed out, this single point did not cover the mother's evidence as to the time of her earlier period of presence in the property, when K had said she had been bullied and struck with a belt by the appellant. In this period, as the mother had said in evidence, she did not work on Saturdays (when the bullying was said to have occurred). She said that she never left the appellant and K on their own. She said she had never seen injuries on K, although she had bathed her regularly at that time.
36. Mr Sergent raised this matter also with the judge at the conclusion of summing up. The judge then added to his summing-up, when the jury returned to court, in this way:

"In relation to Marlene Green, Travis's mother, being in Jamaica between April and October 2002, [K] would have been nine years old at that time and that does, in general terms, accord with the general age she says that she was when the sexual intercourse happened, but of course she said the bullying had started much earlier on. The belt, she was probably eight or nine, thereabouts, but the bullying, much earlier on."

37. Mr Sergent submitted that the additional passage did not redress the balance and it overlooked the point, important to the defence, that the mother's evidence contradicted K's evidence that the appellant had opportunity to abuse K physically, over two years, on occasions when he had been left alone with her for lengthy periods.
38. Miss Farrelly argued that, whatever complaint might be made about this, it did not affect the jury's verdicts as they acquitted on counts 2 to 5 and must, therefore, have taken an independent view of the appellant's credibility.
39. In our judgment, Mr Sergent's points are well made. In each of the respects identified, the tendency of the summing up was to undermine the credibility of the applicant and to enhance that of the complainant, K. This effect was, we think, particularly stark with regard to the judge's treatment of the discrepancies between the evidence of K and what it was accepted were the facts disclosed by the medical records.
40. Coupled with the conclusion that we have reached about the judge's comment in the summing-up (quoted at paragraph 20 above) about K's character' and (inferentially) about her credibility, we consider that all these points taken together render the sole surviving conviction unsafe. It is not necessary, therefore, to deal with Mr Sergent's third ground of appeal, relating to the circumstances in which the jury's final verdicts were taken.
41. Accordingly, we allowed the appeal and we quashed the conviction. The Crown's application for a re-trial was refused.