England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
NOTTINGHAM
His Honour Judge Fowler

		Royal Courts of Justice Strand, London, WC2A 2LL
		21.6.2018

Lord Justice Simon:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.

Introduction

2. On 21 and 24 April 2017, in the Crown Court at Northampton (before HHJ Fowler and a jury) the applicant was convicted for three offences: counts 1 and 2, which charged Sexual Assault of a Child under 13, contrary to s.7(1) of the Sexual Offences Act 2003; and count 3, which charged sexual activity with a child, contrary to s.9 of the 2003 Act. The convictions on counts 1 and 2 were by a majority of 10:2. The conviction on count 3 was unanimous. The Jury were unable to agree on count 4, which was a charge of rape and the prosecution did not seek a retrial.
3. The application for leave to appeal against these convictions has been referred to the Full Court by the Single Judge and we grant leave.
4. We will refer to the complainant in relation to each count as C. She was born in September 2000 and was about 7 years old when the appellant formed a relationship with her mother (H). He moved into the family home in Wellingborough where C lived, with H and a younger full brother.
5. On 27 February 2016, C reported to the police that the appellant had sexually abused and raped her over a number of years when they lived at various addresses: Swinburn, (between April 2008 and December 2009), Barrett Close (between Christmas 2009 and August 2013), and Shelley Road (between August 2013 and July 2014).
6. The appellant was arrested and entirely denied the allegations in his police interview.
7. The Prosecution case was that C's account was true and that the appellant had sexually assaulted and raped her as she alleged. The Defence case was that the allegations were false. The issue for the jury was whether they were sure that C's account was true and accurate, and that the appellant had sexually abused and raped her as she said.

The evidence at trial

8. C gave evidence that she did not like the appellant from the outset, even though he tried to be nice and to act as her 'dad'. After a while he lost his job and started arguing with her mother, whom he treated like a 'slave'. If they tried to wake him up, he would get angry and shout.
9. In relation to counts 1 and 2 (the sexual assaults), she gave evidence that when she was between the ages of 8 and 12 the appellant used to tuck her into her bed. While doing so, he would stroke and rub her breasts, her bottom and her crotch area over her pyjamas. This usually happened at about 7.00 or 8.00 in the evening.
10. As to count 3, the charge of sexual activity with a child, her evidence was that the appellant would pinch her bottom almost every day in front of her mother, and that this would cause arguments. He used to comment on what she was wearing and, when she used the bathroom at their home in Shelley Road (between 2013 and 2014), she was not allowed to shut or lock the door. The appellant would walk in when she was getting out of the bath and was naked.
11. So far as the charge of rape was concerned (count 4) she said that on an occasion when she was almost 14, her mother went out for the evening and left her in the care of the appellant. During the evening, he went out for a few hours and returned home with glazed eyes acting strangely. He called her downstairs where he was drinking 'desperado' (tequila flavoured beer) and made her drink some. She went up to bed because the drink made her feel ill, and he came and sat at the end of her bed in his dressing gown. He was saying that he was her real father and that he wanted a DNA test to prove it. He then got into her bed; and she got out and sat on the floor. She froze and could not speak. He took off his dressing gown and started touching her breasts. He placed his penis into her vagina for about a minute but when her mother returned home unexpectedly early, he jumped up and left the room. She heard her mother arguing with him about why he was naked. As already noted the jury were unable to reach a verdict on this count; it is, nevertheless, relevant to one of the points raised on the appeal.
12. C explained that she had not complained about his behaviour earlier because she did not feel ready to do so.
13. H (C's mother) gave evidence that her relationship with the appellant had 'its ups and downs'. If C were given a present, it had to be from him, and he would want a kiss in return, latterly kissing with tongues. When she (H) challenged him about this, he would say she was disgusting for making her 'implications' and he would 'kick off'. She saw him pinch C's bottom at the Shelley Road address. C always looked shocked, and he would make a joke of it. On one occasion she returned home to find him naked on the sofa snorting cocaine. This was the day of the alleged rape. She confirmed that C was accustomed to self-harming. She denied the suggestion that she had put her daughter up to making the allegation against the appellant and said she only learned of the allegations after C had reported them to the police, and after they appeared in the social services reports. In cross-examination, she reiterated that the appellant used to go upstairs and speak to C in her bedroom. She denied that she and the appellant got back together again after separating or that she had stayed with him for two days over Christmas 2014. It was the appellant who used to refer to C as 'a Dolly Parton'.
14. The Prosecution also adduced evidence from social workers who had contact with C.
15. The appellant gave evidence in his own defence in which he denied the allegations. He speculated that the allegations might have been made in response to him revealing that he had a girlfriend. He described the allegations against him as 'disgusting', and insisted, 'at the end of the day, I'm innocent and I've done nothing wrong'. He confirmed that his relationship with C's mother began in September 2008 and that he moved into the family home with H and her children the following November. Thereafter, H had two further children (R & JY) and he believed that he was their biological father until family proceedings revealed that he might not be the father of R. He always behaved appropriately towards C. Initially he gave C and her brother space but, over time, they developed a natural father/daughter and father/son relationship.
16. In relation to counts 1 and 2, he denied that he tucked C into her bed, or spent any time talking to her in her bedroom. He was not involved in the bedtime routine. That was H's role. He was never involved in bathing the children although, when he and H had noticed C was self-harming with razors in the bathroom, he told her not to lock the bathroom door. He denied that he had ever touched her inappropriately. He never smacked or pinched her bottom or any of the other things alleged by her. In fact, it was her mother who acted inappropriately, pulling down C's trousers or shorts and making highly personal comments.
17. Although his relationship with C was initially good, it became apparent that her mother was telling lies. In addition, he received phone calls at work because H was not coping. Furthermore, C was not dealing well with the break-up of the relationship between her mother and her natural father, and separation from her sister. There was also some confusion about C's parentage because the appellant and H had had a one-night stand at the material time, so that he might have been C's father. He could not comment about the rape because it had never happened. He said that the allegations were made to the police the day after he revealed he was seeing someone else and that he intended to start a new relationship with that person. After he had separated from H, C would come to his house to visit her brothers, both with and without her mother. He had received various greetings cards written by C, both during his relationship with her mother and after it ended.
18. In cross-examination, he admitted that he had been tested and had been found to have taken cocaine, but that was not to admit that he had been using drugs on the occasions alleged in the case. He insisted that, following their separation, there had been a continuing sexual relationship with H.

The appeal

19. Following his conviction and advice from trial counsel, the appellant settled his own grounds of appeal. The Single Judge did not consider that they were properly arguable. However, having reviewed the summing-up, he considered that it was arguable that it was deficient in a number of respects and that case should be considered by the Full Court. He also granted a representation order so that new counsel could be instructed.
20. Mr Ray (who was not trial counsel) has now analysed the summing-up in the light of the Single Judge's remarks and has articulated two particular areas of criticism of it: first, in relation to parts of the summing-up which in his submission 'lacked structure and clarity' and, secondly, in relation to parts of the summing-up which he submits amounted to unfair endorsements of C's evidence to the Jury.
21. Before turning to the particular matters of complaint, we would make four general points.
22. First, the Crown Court Compendium, which is freely available to practitioners who appear in the Crown Court and to Judges who sit there, provides guidance and draft directions in relation to points of law and practice that may arise in trials and in relation to which juries may need to be directed. Each direction has been carefully considered and provides judges with an invaluable resource which, when adapted to the facts of a particular case, will provide an appropriate framework for a legally correct direction. Those who do not avail themselves of these draft directions are at risk of introducing error in the summing-up.
23. Second, although this Court can read a transcript of the summing-up, the transcript cannot replicate the dynamics of the trial. Nor, sometimes, will it reveal what was really in issue and what was not. It may therefore be important to see whether trial counsel raised an issue in relation to the summing-up that they heard, in the light of their understanding of the issues. In the present case the Judge raised with counsel whether there was any matter that they wished him to raise with the Jury. Although the appellant's trial counsel raised a point of fact, she did not raise any other point in the summing-up. Such an omission is not dispositive of an appeal based on errors in a summing-up, but is nevertheless a matter to be borne in mind.
24. Third, while it may sometimes seem impractical in busy courts which hear many relatively short cases, it is usually sensible and good practice to discuss the directions that the Judge is intending to give before speeches, and to make written directions available to the Jury. In the present case, the Jury was provided with a written route to verdict but not written directions.
25. Fourth, sometimes complaint is made that the overall tone or effect of a summing-up is unfairly adverse to a defendant. That is not the basis of the appeal in the present case. Points were fairly made by the Judge in favour of the defence; and the Judge repeatedly reminded the Jury that, whatever he said about the facts, it was for them to decide them.
26. We turn then to the five points raised by Mr Ray, starting with points (1) and (2) which, he submitted, showed a lack of structure and clarity.
27. Point (1) is a complaint in relation to what the Jury were told about the appellant's alleged use of cocaine.
28. The prosecution case on count 4, the charge of rape, included evidence that the appellant had been asked to babysit while H was out. He eventually came home late and behaved bizarrely due to the effect of either drink or drugs or both. He then raped C. When H returned later she found the appellant naked and taking cocaine. In his police interview he denied that he took drugs and said that he had last smoked cannabis many years before. He was cross-examined on the basis that he had lied to the police in interview. He accepted that he had, and that since the date of the alleged offence he had tested positive for cocaine. He admitted he had taken drugs and that he had lied to the police.
29. Mr Ray submitted that the Judge's direction conflated two distinct issues: first, evidence of bad character relating to his use of drugs and, second, lies that he told the police in interview about his use of cocaine. So far as bad character was concerned, the allegations about drug taking on the night of the alleged rape and the appellant's admissions about positive drug tests both amounted to bad character within the meaning of s.98 of the Criminal Justice Act 2003. Neither were concerned with the allegations of rape. It followed that a direction was required directing the Jury as to the relevance and limitations of the evidence. So far as lies were concerned, the Judge should have given a clear direction about lies, see R v. Lucas [1981] 1 QB 720, that was separate and distinct from the direction on bad character.
30. The Judge dealt with the issue of the appellant's drug taking and lies about it in a number of places but it is convenient to focus on the first occasion he did so.

Now in the course of cross-examination of the Defendant it was put to him and to some extent he accepted that he had lied to the police in the interview, lied specifically about the taking of drugs. It was also put to him that he had lied to you; these are matters that you are going to have to consider whether you are sure that he did it. He accepted, it seems to me, that that he lied about the drug-taking but where does that take you? Well, what it does not do, ladies and gentlemen, is prove that he is guilty of any of the offences on the indictment. A lie about the fact that he was taking drugs could be brought about by a whole manner of motivation, but you cannot be sure that it is because of anything to do with these offences. So, ladies and gentlemen, you cannot use that as a means of proving - or the Prosecution cannot use it as a means of providing or advancing their case in the sense that it shows he is guilty of these offences. Of course, it is part of what you know and have seen of the Defendant. One of the things that you are going to have to do, perhaps one of the principle things you are going to have to do, is decide what you make of the evidence of him and of [C]. What you know about the Defendant and what you see of him is something you take into account when judging his credibility and, in that regard, you can take account of any lies that he might have told. Not to say that he has lied something like that, or has lied about everything, obviously. You have got to address it in a balanced way, let us note.

31. In the course of argument Mr Ray accepted that the evidence of cocaine taking was not evidence of bad character because it was evidence to do with the offence charged, rape. However, in her submissions, Ms Moore, told the Court that the evidence of cocaine use was admitted as bad character in order to correct a false impression given by the appellant in the course of his evidence in chief, see ss.101(1)(f) and 105 of the Criminal Justice Act 2003. The appellant had said that he had not taken drugs for 10 years and the prosecution wished to put to him in cross-examination that he had recently tested positively for cocaine. It seems that the application to adduce this evidence was made 'informally,' in other words, other than in accordance with Part 21 of the Criminal Procedure Rules. We were also told that the Judge acceded to the application, although there was no ruling on the point. We regard this is as unsatisfactory. The proper course should be to make a written application (or at least undertake promptly to make such an application), and for a judge to rule on the point, however briefly, as the circumstances may require.
32. If this had been done, thought would have been given to a direction to the Jury explaining why they had heard evidence of the appellant's cocaine taking. The evidence that he took illegal drugs was bad character evidence, see for example R v. M [2014] EWCA Crim 1457 at [61]. The Jury should have been told why the evidence had been admitted and warned against attaching disproportionate weight to it. However, as Lord Phillips LCJ said in R v. Campbell [2007] EWCA Crim 1472 at [24]:

The summing-up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid the prejudice that is at odds with it (see also Sullivan [2015] EWCA Crim 1565 at [52] and [53]).

33. In the passage of the summing-up dealing with this aspect of the case, the Judge focussed on lies about drug taking.
34. As is made clear in the Crown Court Compendium, whether a direction should be given about admitted or proven lies ought to be the subject of discussion before speeches: not least to identify what lies are relied on. The direction, if given, should make clear that the Jury must be sure of three specific matters: (1) that it is either admitted or shown by other evidence in the case to be a deliberate untruth (rather than arising from confusion or mistake); (2) it relates to a significant issue; and (3) it was not told for a reason which does not point to the defendant's guilt. The Jury must be told that, unless they are sure of all three matters, the lie (if they are sure it is) is not relevant and should be ignored. Otherwise, the lie may be used as some support for the case. In the present case no explanation was offered for the lie.
35. In our view, the Judge's direction could, and should, have been more clearly expressed; but it contained the critical direction that lies to the police about drug-taking could not be used to prove that the appellant had committed the offences with which he had been charged.
36. Point (2) is a criticism of the summing-up in relation to the 'sexual' element of the offences charged under counts 1 to 3.
37. Section 78 of the 2003 Act provides:

For the purposes of this part (except section 71), penetration, touching or any other activity is sexual if the reasonable person would consider that –

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

38. Mr Ray accepted that the summing-up directed the jury on those elements of the offences that the prosecution had to prove; but he submitted that the overall guidance on the elements of the offence was 'not as clear as it should be', particularly in relation to count 3 where the allegation was that he touched C on the bottom; and that in any event the Judge should have made clear that the Jury should exclude the possibility that the touching was accidental.
39. We are not persuaded that a specific direction on the sexual element of the offence charged under counts 1 and 2 was necessary. The stroking and rubbing of C's breasts, her bottom and her crotch area was plainly sexual. Count 3 related to touching her bottom. The Judge addressed this point as follows:

The Prosecution have to prove that there was a deliberate touching by the defendant of [C] on her bottom … any touching of the bottom is sufficient if it is deliberate and not accidental.

40. Later, the Judge concluded:

… you have got to ask yourself would a reasonable person consider it sexual in the circumstances that we know apply in this case.

41. In our view, although the passage that we have omitted would not have assisted the Jury, neither would a recitation of the statutory wording. The written Route to Verdict made clear that the Jury had to be satisfied (1) 'that the defendant deliberately touched C on the bottom, by pinching or otherwise', and (2) 'that a reasonable person would consider that the touching, because of its nature or because of the circumstances and/or purpose, to be sexual.'
42. In our judgment, there was no misdirection or lack of clarity in relation to the sexual element of count 3.
43. We turn then to the three points advanced on this appeal as demonstrating an objectionable endorsement of C's evidence. Before doing so, however, it is important to note that at the start of the summing-up the Judge directed the Jury in conventional terms that it was their view of the facts that mattered and not his, and that if they disagreed with any view he expressed about the facts they should ignore it.
44. Point (3) relates to the direction on C's behaviour and, in particular, her delay in reporting the offences.
45. The Judge summed-up in the following way:

This is an area, ladies and gentlemen, where it is important that I share with you the experience of courts in such matters, and that experience shows that in sexual cases it is not always the case that a victim will make an immediate response or complain straight away if they are subjected to a sexual assault. Of course, there can be all manner of reasons, but a moment's thought indicates some that might apply generally. I am not telling you what happened in this case, but sexual offences are offences of control, and whilst that control is operative it can prevent the complaint. Part of the controlling behaviour and what is called grooming is to make a victim feel vulnerable and responsible themselves for bring matters about. It is often the case too that the person who is responsible for the event has chosen a victim who is vulnerable and in a weak position, and it is also the case that there is an embarrassment and a sensitivity in making such complaints.

That is the situation with adults subjected to sexual assault and rape; that the confusion and embarrassment, the feelings of helplessness and the making of complaints after many years often arise in instances where children are involved as victims. If you think about it, ladies and gentlemen, the features that might prevent a complaint being made can be borne stronger than a case where a child is involved. We all have the advantage of having been children and experiencing the relationship with adults. A child places trust in an adult, and even more so trust in an adult within a family to the extent of looking to them to establish what is right and what is wrong. How much courage does it take for a child to challenge an adult? How much courage to challenge a father or a stepfather? In any instance a complaint is going to cause disruption and affect the relationship within the family of the child, but also potentially affect the relationship of other family members even, a parent with the person who is alleged to be perpetrated. Those are the features that apply when you consider whether an immediate complaint is made but I stress, ladies and gentlemen, I am not telling you what happened in this case. I am just opening your eyes to the experience of the Court that shows that any assumption that if there is an attack or somebody is going to complain straight away is probably ill-founded, particularly when dealing with children.

46. At §20-3 of the Crown Court Compendium, it is noted:

Where grooming is alleged to have occurred, whether or not this gives rise to a separate count on the indictment, the concept of grooming and the potential difficulties of a witness' realisation and/or recollection of innocent attention becoming sexual should be explained.

47. A draft direction is suggested under the heading: 'Example 1: young child'.

The prosecution case is that before he sexually assaulted V he 'groomed' her. That is to say he won her trust by doing things which in normal circumstances would be innocent, such as playing games with her including play-fighting and tickling, before he went on to touch her sexually. In this situation, a child is unlikely to realise that she is at any risk at all and, when the nature of touching changes from something 'innocent' to something which is sexual, the child may not realise that there is anything wrong and may accept it without any feeling of discomfort or dislike and will not make any complaint about it or resist or protest when it happens again. In these circumstances a child is unlikely to be able to say when touching which had been 'innocent' changed to touching which was sexual. In making these observations I am not suggesting what you should find did, or did not, happen in this case: I am simply alerting you to a potential difficulty which a child in such a situation could face. Whether or not you find that this was a situation faced by V is entirely for you to decide.

48. The Judge appears to have had this direction in mind when giving the direction referred to above.
49. The point on which the Jury needed to be directed was that they should not assume that delay in reporting was inconsistent with the truth of what was reported.
50. A direction which assists a Jury will be one that is directed to the facts and arguments in the case, the dangers of making assumptions which are not justified by the facts and a reminder that it is for the prosecution to prove its case.
51. The Crown Court Compendium (at p.10-21) gives example 3 as a draft direction in relation to delays in reporting of an offence by children. It refers to the various reasons which may be relevant and provides a fair approach because it is expressed in general terms rather than by reference to the particular facts of the case.

Experience has shown that children may not speak out about something that has happened to them for a number of reasons. A child may -

be confused about what has happened or about whether or not to speak out;

blame him/herself for what has happened or be afraid that he/she will be blamed for it and punished;

be afraid of the consequences of speaking about it, either for him/herself and/or for another member of the family (such as {specify});

may feel that s/he may not be believed;

may have been told to say nothing and threatened with the consequences of doing so;

may be embarrassed because s/he did not appreciate at the time that what was happening was wrong, or because s/he enjoyed some of the aspects of the attention they were getting;

simply blank what happened out and get on with their lives until the point comes when they feel ready or the need to speak out {e.g. for the sake of a younger child who s/he feels may be at risk};

may feel conflicted: loving the abuser but hating the abuse.

52. Plainly, where the defence contends that if the allegations were true there would have been a complaint earlier, a Jury should be directed to consider the potential difficulties for a child in making a complaint. It seems that the Judge may have also had this point in mind when he said, 'how much courage to challenge a father or a stepfather?' It is less clear that it was relevant to the particular circumstances of the case.
53. In our view, the Judge's observations on this aspect of the case were not materially objectionable, reminding the Jury, as he did on two occasions, that he was not indicating what had happened in the particular case, and having earlier directed them that the facts were for them to decide.
54. Point (4) is a criticism of the direction about delay (generally), and in particular about a child's ability to recall events in the past. At least to some extent, there is an overlap with point (3).
55. The Judge directed the Jury:

I want to turn, ladies and gentlemen, to another area where it is important that you have your eyes open to the potential difficulties and dangers of assumptions. That really is summed up by saying that it is wrong to make an assumption that a child will have the same ability to recall and give evidence about matters that have happened to them earlier. Not only is [C] even now only 16 but she is talking about initially things that happened when she was eight, and a child's brain takes time to develop; indeed, we know now that it is only in the middle twenties that a brain is actually fully formed and functioning in its adult way. But again, we have experience of remembering things as children and we know from our own experience that the memories are different, less detailed than those memories in adult life, because no doubt in our – it is only later with experience that the brain learns to retain the information in that way. But you also know, don't you, that our childhood memories in fundamentals can be reliable; it might be that the sequencing, the timing and the details are not so clear but the fundamental as to whether something happened or not is something that can be remembered even if it is from long ago. So, ladies and gentlemen, you have to be aware than in this case you have a 16-year-old remembering what had happened to her from age eight through to 13-14, and you have to bear that in mind when you consider her evidence in both ways, ladies and gentlemen, to consider whether it enhances what she tells you now, if it is something you accept, or whether it undermines in any way what she says.

The delay in matters being disclosed is something that you have to bear in mind. If, in any way, you think it has disadvantaged the Defendant then take that into account, but there is really any episode where the Defendant says, 'I don't remember.' His evidence is quite clear, isn't it? It is, 'It didn't happen.'

56. Mr Ray made three complaints about this passage: (1) the Judge's direction about the development of the memory lacked a factual basis; (2) it amounted to a direction to the Jury to ignore any perceived weaknesses in C's evidence; and (3) the short final paragraph covering the potential difficulties caused to the appellant by the delay was inadequate. There should have been a fair and balanced direction analysing the prejudice caused by the gap in time between the alleged offences and the trial.
57. In our view Mr Ray's first complaint is well-founded, although we do not accept that it amounted to a misdirection.
58. As to the second complaint, we accept that the Judge's observations offered an explanation as to why C might have not have remembered certain matters, but we do not regard these as going beyond what was permissible. The Judge plainly left it to the Jury to decide whether any deficiencies in C's recollection were material.
59. So far as his third complaint is concerned, it is clear that delay may put a defendant at a serious disadvantage. A defendant may not be able to remember details that could have helped him cast doubt on the prosecution case. It is for this reason that Juries should be reminded to take these matters into account in a defendant's favour when considering whether the prosecution has proved its case.
60. However, we accept Ms Moore's submission that, brief as it was, the direction on delay in the final paragraph above was sufficient in the present case. The defence was a complete denial of the conduct alleged by the prosecution and of any sexual impropriety. The appellant did not say he could not remember the circumstances on a particular occasion. He said that nothing had happened as C described. The only specific date that was alleged was in relation to the count of rape, in respect of which the appellant was not convicted. Furthermore, Mr Ray was not able to point to any specific element of prejudice caused by the delay in relation to counts 1-3.
61. Point (5) is a criticism of the direction in relation to how the Jury should approach displays of distress by C.
62. The Judge directed the Jury:

The allegations are made by [C], and she spoke to you about them in her evidence. You saw the way that she gave her evidence; you saw what appeared I think to be reluctance, hesitance and distress in the way that she presented it. Of course, emotions like that can be put on, and you would have to be sure that they are genuine before you acted upon them, but that is one of the questions you have got to ask yourselves, isn't it? Was that a young girl making things up, reciting some things she had been told, or was that somebody who was genuinely embarrassed and distressed about what she was saying to the officer who was interviewing her? It is suggested that what she was saying, what she has reported is at the bidding of her mother – that they are made up stories. If it is relevant to look at what is being said, and ask yourself if you were going to make it up is that what you would make up? If you are going to have a child tell stories about what has happened, is that what you would get them to say? Would you make sure that there was some support for it? There are all sort of perhaps flaws in the story that could be filled if you have a blank canvas of being able to make it up from scratch. On the other hand, ladies and gentlemen, I have already pointed out that the Defendant does not have to say how or why a complaint has been made up if it is false.

63. Mr Ray accepted that the Jury were entitled to take into account C's distress, but submitted that the Judge's direction encouraged the Jury to use the evidence of her distress in support of the prosecution case.
64. Plainly, a Judge should be cautious in directing a Jury about a witness's distress. A neutral draft direction is set out as example 6 of the Crown Court Companion in chapter 20, under the heading, 'show of emotion/distress when making a complaint and/or giving evidence.'

You have been reminded/you will remember that at a number of points in his/her evidence V became distressed and emotional. It is entirely for you to decide whether or not V's evidence is true but you must not simply assume that because V showed distress and emotion it must be true. It is perfectly possible for a witness to become distressed and emotional when describing an incident such as this, whether or not their account is true. The presence or absence of a show of emotion or distress when giving evidence is not a reliable pointer to the truthfulness or untruthfulness of what a person is saying.

65. The Judge's direction invited the Jury to consider whether they were sure that C's emotions were genuine. The rest of the passage invited speculation but was not objectionable in inviting the Jury to consider the implications of the defence case. Ultimately, it was for the prosecution to prove its case, and not for the defence to offer reasons why a false complaint might have been made.

Conclusion

66. We have considered the matters of complaint advanced on the appellant's behalf and we have accepted that some of the criticisms of the summing-up are justified. We are not, however, persuaded that, viewed overall, the summing-up was confusing, nor that it amounted to advocating the prosecution case nor that it rendered the trial unfair. The Jury saw and heard C and the appellant give evidence. They would also have heard the points made by counsel against and for the appellant. The Judge did not usurp the Jury's function or express views that effectively deprived them of the ability to decide the matters to which the Judge referred. As we have already noted, no complaint was made by trial counsel, who would have been aware of the real issues between the prosecution and defence, about the summing-up at the time.
67. Accordingly, we are satisfied that the convictions are safe and the appeal must be dismissed.