England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 May 2018

1. LORD JUSTICE IRWIN: On 9 November 2017 in the Cardiff Crown Court, following a trial before Mr Recorder Griffiths QC and a jury, the appellant was convicted by a majority of 10 to 2 of 15 counts of incest. On 15 December 2017, before the same Recorder, he was sentenced to 4 years' imprisonment on each count, consecutive as to counts 2, 6 and 7 and concurrent on all other counts, therefore a total of 16 years' imprisonment. He was also made subject to consequential orders pursuant to schedule 3 of the Sexual Offences Act 2003 and is subject to the provisions of the Safeguarding Vulnerable Groups Act 2006.
2. He appeals against his convictions by leave of the single judge in relation to three grounds of appeal to which we will come in due course.
3. The facts can be summarised as follows. There were two complainants. Each were daughters of the appellant. The complainant whom we call "A" was born in late 1962 and the complainant who we shall call "G" was born in early 1964. They were both born in South Wales where they lived with the appellant and their mother.
4. When the complainants were aged 5 and 7 the marriage broke up and the complainants then moved overseas with their mother, who remarried. The appellant stayed in Wales and subsequently he remarried. The appellant did not see either of the complainants for quite a long period.
5. When A was 15 years of age she returned to the United Kingdom and moved in with her maternal grandmother. Thereafter she had regular contact with the appellant, often staying overnight at his house. After a further 18 months or so, G returned to the United Kingdom and she too had regular contact with the appellant. After a period she moved in with the appellant and his new family.
6. When both complainants, both sisters, were in their 50s they reported to the police that the appellant had sexually abused them during their teenage years, that is to say after the return from overseas. A told the police that between the ages of 15 and 16 the appellant had regularly had sexual intercourse with her. She said that it took place at the appellant's house (counts 1 to 3) and in the appellant's car (counts 4 and 5).
7. G told the police that when she returned to the United Kingdom the appellant regularly had sexual intercourse with her. She said that the first time that took place was in a tent in the appellant's garden (count 6), following which the appellant had sex with her on a regular basis in his house (counts 7 to 12). She also said that the appellant came to the house that she shared with another and had sexual intercourse with her there (counts 13 and 14). She alleged that on one further occasion he had sex with her in his car, and that was count 15.
8. On 8 October 2016 the appellant was arrested at his home address. The property was searched. Pornographic material was found in the living room and in the garage. He was taken to the police station and interviewed. He denied any sexual activity with either complainant. He said straightaway that the allegations were malicious.
9. The prosecution case was that the appellant had sexually abused both sisters as described and that each had given a genuine and independent recollection of their events.
10. The defence case was fabrication. Fabrication perhaps occasioned by resentment at the breakup of the family and perhaps occasioned by being left out of the appellant's Will.
11. A had never spoken about the abuse until about 2 years previously. Then the matter arose in this fashion. G came to A's house and told her, A, what had happened to her, G. G said that she had disclosed the abuse to her partner. She had also told a subsequent partner. The disclosure to the sister followed shortly after that first or those earlier disclosures to partners. The two sisters' account, and A's account in evidence, was that A and G had not been particularly close as sisters, that they had different interests, and that was the background to the sequence of mutual disclosures according to the victims.
12. The appeal proceeds essentially on three grounds, each of which has been given leave by the single judge. They all concern the summing-up. Firstly, it is said that that there was inadequate summing-up in relation to the impact of delay between the events which were the subject of the allegations and the trial. Secondly, it was said that there was an inadequate summing-up in relation to the risk of non-deliberate contamination of evidence given the discussion of the allegations between the complainants before the reports to the police. The third suggestion was that there was distress, from at least one of the complainants in particular, when first she described the story. Evidence of that distress was before the jury but there was an inadequate direction from the judge in relation to how that should be addressed when the jury were considering their verdicts.
13. Having identified the grounds in turn, we will now identify, in a little more detail, what was said and what were the complaints before considering all three in context.
14. The summing-up did address delay. The judge said:

"Let me start by dealing with the historic nature of this case. This is one of those cases commonly referred to as a historic sexual abuse case. Under our law in this country there is no time limit for the bringing of prosecutions. Inevitably, late complaints of wrongdoing committed many years before can and do present real problems for all parties not least for a jury charged with the task of determining whether the case that they are trying has been proved.

You must be alive to the problems faced by the parties involved in such cases as this and purely as an example, I, I take up what I think both counsel have referred to and that is relevant potential witnesses are no longer alive. Both sides, the Defendant's parents are both now dead. [G] and [A's] maternal grandmother, Doris, has passed away some considerable time ago. Other potential witnesses have also passed away.

Now I direct you in firm terms members of the jury you must not allow problems created by the passage of time to in any way dilute the high burden and standard of proof required in order, under our law before any person can be convicted of any offence. I'll direct you as to the burden and standard of proof shortly. That's the, the first matter dealing with the question of delay.

Another matter which all judges are required to deal with in any case involving a late complaint by a Complainant and you know what I mean, coming forward and making a complaint about alleged sexual intercourse. The Complainant of course is the common term we use for the alleged victims of a sexual abuse. In this case there are two Complainants, [A] and [G] but the matter that I have to deal with and all judges have to deal with and, and deal with in this way by telling the jury it is the experience of our Courts that there is no

set standard reaction of a person genuinely sexually abused by another. You've been told that very recently by Defence counsel which is right and I endorse it.

There is no, I stress, standard reaction of a person genuinely sexually abused by another. Sometimes genuine complaints of sexual abuse are not made until many years passed, that's a fact. Equally, false complaints are sometimes made many years later, that is (inaudible). Whether or not a person who has been genuinely abused complains at the time entirely depends on a multitude of factors including the makeup of the person involved, that person has been through, the circumstances pertaining at the time, the family setting and numerous other factors ladies and gentlemen and so I tell you firmly it is, it is the situation that it would be wrong for any jury to say well, he or she did not complain at the time therefore the allegation must be false. That is a completely wrong approach members of the jury as I'm sure you will all appreciate. Life is not black and white ladies and gentlemen and so those are general observations that I make."

15. The complaint is that while the learned Recorder did make general mention of delay, and properly made the specific point that late complaints can be genuine, he made no specific mention of the problems which might arise for the defence by reference to the delay, in particular, bearing on the capacity of the defendant to recall details of specific occasions.
16. In relation to the second ground, that is to say the risk of non-deliberate contamination, not collusion, but an unintended "convergence" of the evidence, the learned Recorder gave a conventional direction to consider each count separately which led to the relevant direction on collusion:

"You must consider each count separately. At the conclusion of your deliberations you will be required to deliver in respect of each count through your foreman or forewoman in answer to questions put by the Clerk, your verdicts, either guilty or not guilty, count by count. That's the end of the process that's been, after you have deliberated and reached your, your verdicts and so you must consider those counts involving [A], that is Counts 1 to 5 separately, from those Counts that are involving [G], Counts 6 to 15. You must consider and evaluate what each alleges was done to her. I hope that is clear.

Now if you take the view that each Complainant, [A] on the one hand and [G] on the other has given you her genuine independent recollection of things done to her by the Defendant and you're satisfied that there has been no collusion between them to make false and unfounded allegations against their father you would be entitled to take into account what you find proved in respect of what the Defendant did to one Complainant when you are considering the case in respect of the other but I stress, if you consider that [A] and [G] have or may have colluded with each other and I put it in the vernacular now members of the jury i.e. put their heads together to make false and unfounded allegations against their father you should acquit the Defendant on all counts as you could not then be sure of his guilt in respect of any of them.

Now, the Defence contend that these two women as they now are, girls as they were at the material time that they have colluded with each other to falsely accuse their father, that's the Defence contention. The Prosecution, giving you both sides now, the Prosecution firmly reject that suggestion pointing out a) that even on the Defendant's own evidence the two girls never got on, never seemed to agree on anything b) were interviewed separately describing sometimes in graphic detail what the Defendant did to them and c) gave evidence if I can use the term, live, in front of you and were both thoroughly but I stress perfectly properly cross-examined in the witness box. Those are my directions as far as separate considerations and a potential for your finding in respect of one assisting you in some way as far as your assessment of the case against the other but with those important riders that I added."

A little later he said:

"I have already given you my full directions of law including those relating to the burden and standard of proof. As I've already directed you, if you consider that [A] and [G] have or may have colluded with each other (i.e. put their heads together) to make false and unfounded allegations against their father, you should acquit the Defendant on all counts as you could not then be sure of his guilt in respect of any of those. I did all that yesterday ladies and gentlemen, it's just a, a reminder."

17. The complaint here is that the Recorder failed to direct the jury in the conventional way as to difficulties which may arise, not from deliberate collusion, but from the inadvertent convergence of evidence by witnesses who are attempting to be honest.
18. The third area is that dealing with the distress of witnesses at point of complaint. The relevant passage in the summing-up reads:

"And so a few more directions of, of law that need, need to be dealt with. What about, I ask rhetorically, things said by either [A] and or [G] to others, previous partners about having been sexually abused? Right, we'll get to them in due course when I remind you of the evidence because some were called too. A jury is entitled to hear such evidence at least it, it helps you if you accept it say well, at that time one or other of the Complainants actually came out, it was long before the police were brought in and made allegations of the sort that are now being made against the Defendant. So, you're entitled to, to take it into account but be careful about it, what is say witness X tells you is said to him or her many years ago isn't independent confirmation of it if it comes from one or other of the girls but it is, it goes some, some way to showing at least some consistency of, of what is, is alleged now in, in 2017 in this trial against the, against the Defendant so you approach it with caution, it's evidence in, in the case.

Allied to that as I speak I can't quite recall who said this but we'll get to it when I review the evidence but I'm pretty certain one of the witnesses explained to you that when being told by one or other of the Complainants about the sexual abuse that there was a great deal of distress. Now, you've got to be careful about that. If somebody says well, I was told about this sexual abuse and when it tumbled out the person concerned was very, was very distressed well that's real evidence that has been, that you're being told about. Again be careful, you can only act on that if you're satisfied that the distress was genuine ladies and gentlemen, it wasn't feigned, I'm sure you'd be able to see that, so these are words of caution, I'm trying to assist you in your assessment of these various matters."

The concern here is that the judge never said that even if the distress was genuine and the jury were to accept the genuineness of distress, that in itself does not necessarily mean that the complaint was accurate and genuine.

19. As we have mentioned in the course of the submissions, helpfully and economically made to us by both counsel, all these points must as always be considered in the context of the facts of this case. They are not academic matters.
20. We consider and we consider firmly, that the summing-up could and should have been better in all these respects than it was. It would have been better, and the Recorder should have said, that delay can make things difficult for a defendant, particularly in remembering the details of incidents after decades.
21. In her oral submissions, when considering the impact of this on the defence, Ms Crowther said it could make it very problematic for a defendant to recall particular episodes or the actions of particular people, and that must of course be right. But the context here makes that a point of much less significance than it might be in many other cases. In this instance, where there was a direct collision between the prosecution and the defence, and where the defence was deliberate collusion by these two critical witnesses (the complainants), the task of the defence was to open up the possibility of a negative: that sexual abuse never happened. In doing so, conflict as to detail becomes very much less important.
22. It would equally have been better, and the Recorder should have done it, to give the jury a short direction in relation to non-deliberate contamination of evidence by reference to the discussions between the two complainants before bringing the matter to the attention of the police. Of course it is the case that people can persuade themselves of matters, in particular of detail, before complaining formally about offending. That can be a risk in a number of cases.
23. But here too, in our judgment, it was not of real significance in this case. This was a case of what was said to be long-standing incest with each daughter, unknown to the other at the time. According to the defence, these allegations were fabricated over resentments about the parted family, or about later financial provisions. It would have been right to cover this possibility in the summing-up, but it was not said by either side to be the explanation here. There is no indication that either side even began to suggest to the jury that that might be possibly so. So here again, we consider this is not a matter which can lead us to conclude that the conviction is or might be unsafe.
24. We take a similar view in relation to the third matter raised and for similar reasons. As to the manner in which the summing-up failed to address the distress of a complainant: that should have been covered, but it was not, in our view, a point so as to render these convictions unsafe.
25. Having said all that, we wish to record that we are deeply concerned as to the weaknesses in the summing-up that have been raised. In the course of oral submissions this court learned that both counsel asked the Recorder for written directions and were refused. They were merely given a verbal checklist of the broad matters of law which it was intended to cover in the summing-up, and they were given a route to verdict document.
26. In our judgment, none of these problems would have arisen if the judge had either given detailed draft directions on law to counsel, or even had engaged in a detailed discussion of the directions of law which he intended to give. It was the greatest shame that he did not do so. Had he done so in the manner which has now become customary and widespread, these difficulties would never have arisen. It is clear from the submissions that both counsel have made carefully to us that they would have raised these points in the course of such a debate before the matter went to the jury.
27. All that said, and with great respect to the submissions that have been made more than competently to us, we cannot reach the view that these verdicts are unsafe, and the appeal is therefore dismissed.

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