Mitchell, R v

On 29 October 2001 the appellant was convicted at the Luton Crown Court before H.H. Judge Maher and a jury of three counts, two alleging indecent assault and the third rape. He was sentenced to a total of 8 years imprisonment on 19 December 2001. He appeals against his convictions by leave of the single judge.

The offences were all allegedly committed against the appellant’s niece whom we shall call ‘V’. She was born on 9 May 1988 and gave her evidence by means of a video link. The indecent assault alleged in Count 1 took place in about May 1994 when she was 6, that in Count 2 took place when she was 8 and the rape in Count 3 when she was 10. The allegations were first aired in about October 2000 when V told a close friend. They became known to the appellant and he went round to his sister’s and V’s mother’s home where there was what was referred to at the trial as a confrontation. We shall return to that in due course when considering the evidence upon which the convictions were based in more detail. The matter was not pursued until March 2001 when V’s father contacted the authorities and V was eventually seen by the police on 1 May and a Video interview took place on 2 May. On 10 May the appellant was arrested and interviewed. He denied any sexual impropriety. In interview and at trial he denied that he had done anything untoward to V.

V herself was the subject of a statement of special educational needs. When her mother gave evidence, she was asked about V by the judge. He put to her that the impression which he had formed of V (although he attributed that to all in court) was that she was a little bit slow and not very good with words, that she had a small vocabulary and that she took her time over answering questions. She was not confident or outgoing. She had learning difficulties; she was in a mainstream school but struggled to keep up with the rest of her class.

Any case such as this requires sensitive and careful handling by the judge. He must ensure that any cross-examination of a child witness is fair and that the child is able to understand what is being put so that any answers do not result from misunderstandings. But he must also ensure that the defendant has a fair trial, that his case is properly put and that the jury can judge for themselves whether the child is telling them the truth. He must be careful that in protecting the child he does not act in a way which gives the impression that he is favouring her to the detriment of the defendant.

The appeal is based on the contention that the judge did overstep the mark and that his conduct during the trial, in particular his interventions during the evidence of a number of the witnesses, was such as to render the convictions unsafe. It is also said that he misdirected the jury in at least two respects in his summing-up. The case against the appellant was, it is said, a weak one in the sense that there was little independent evidence to support it and it contained inherent improbabilities. The jury considered its Verdicts for 8 ¾ hours and convicted by a majority of 10 to 2.

The principles to be applied where it is said that improper interventions by the trial judge have rendered a conviction unsafe have been set out in a number of decisions of this Court and are accurately summarised in Archbold. In Matthews 78 Cr. App R 23, Purchas LJ, having cited observations of Lawton LJ in Hulusi and Purvis 58 Cr. App R 387 at p.382, said this (at p.32):-

Frequently, the number of interruptions has been the basis of the appeal. But quantity is not determinative: indeed, in Matthews, one of the complaints was that the judge had asked 524 questions to counsel’s 538 but, despite this, the court decided that the judge had not committed the cardinal offence of diverting counsel from the line of the topic of the questions into other channels. Thus it decided that the convictions were not unsafe. The crucial question is whether when the conduct of the trial, including the summing-up, is looked at as a whole, there is a real possibility that there has been such unfairness or denial of justice that the convictions are unsafe. A judge is of course entitled to put questions to clarify matters and to intervene to prevent repetition, discursiveness or oppression of witnesses and to ensure that irrelevant matters are not pursued. But he must be careful not to appear to enter the arena or to give the impression to the jury that he thinks little or nothing of the defendant’s case or is promoting a witness as one whom the jury ought to believe. And the defendant must be permitted to give his evidence so that his case, however implausible the judge may think it to be, is properly put before the jury and he is not thrown off course by judicial interruptions.

V’s account of the three incidents, which the jury must be taken to have accepted, was as follows. So far as Count 1 was concerned, when she was about 6 the appellant had collected her with his bicycle and walked with her from where she was then living to his house. They went through what she described as a fairly big wood, although in fact it was a path with a fairly thin line of trees on either side. When they were in the wood, he put her on a log and forced his tongue into her mouth and told her he was giving him a kiss. They then continued on their way. Count 2 concerned an incident when she was about 8. She was at the appellant’s house in a bedroom. The appellant got her onto the bed, pulled his trousers down, undid her trousers and pulled them and her underwear down and started rubbing his penis against her, lying on top of her. The appellant’s son came into the room and saw what was happening. He then got off her. Count 3 was when she was about 10. There had been a family gathering at her house and the appellant was there. He said he had to go home to clean out the hamster’s cage and to collect some biscuits and toys. V went with him reluctantly at the instigation of the appellant’s wife. When he had cleaned the hamster’s cage, he shut his 2 year old (who was also there) into his bedroom and told her to sit on the sofa. When she refused, he pushed her on to it and the rape then took place.

We should set out her account of how the rape took place in some detail. Her initial account was as follows:-

The appellant is and was then a large heavy man – he weighed some 16 stone. The description given of what occurred is not perhaps impossible to visualise, but there are obvious difficulties in it. Mr. Hynes described it as implausible. The jury was entitled to bear in mind that V was someone who might find it difficult to express in words what had happened and, if satisfied that she was being truthful and that there had been penetration by the appellant albeit she could not describe precisely how it had occurred, to find that rape was proved. Nevertheless, the need for the greatest caution before convicting in the light of the description given is obvious.

V was medically examined and the medical evidence was the subject of formal admissions. The examination found that the state of her hymen was such that there had been repetitive penetration which could have been by a penis, a finger or any other object of appropriate size. It was not consistent with only one or two episodes of penetration. This evidence was of considerable importance because V had said to the police that she could only remember the three incidents and in cross-examination that no-one had done anything like what had happened to her in the incident the subject of Count 3 before she was examined by the doctors in May 2001. She was questioned about a boyfriend but denied that there had been any sexual activity with him. The medical evidence meant that her account of what she had experienced sexually could not have been accurate generally and, although it showed that penetration had occurred, it was hardly supportive of the particular case presented against the appellant.

We do not find it necessary to lengthen this judgment by referring to all the interventions relied on by Mr. Hynes. The first point to make is that they were not particularly numerous and this is not a case of quantity. What is said is that the judge appeared to bolster the complainant and to belittle the appellant’s account and that of his witnesses. Mr. Hynes submits that his comments in summing-up, albeit he said and repeated that it was a matter for the jury to decide whether they accepted or rejected his observations, were generally hostile to the defence. In addition, during Mr. Hynes’ final speech to the jury the judge got up from his seat and walked over to say something to the usher. Shortly thereafter the usher brought him a law report. This was certainly discourteous and should not have happened, but it also may have conveyed the impression that he was not listening to the defence case because he thought little of it. Mr. Hynes dealt with the situation admirably. He stopped talking and he tells us that the judge looked embarrassed. We would only comment that he should indeed have been thoroughly embarrassed.

The judge’s observations to V when her evidence was about to be given, that she should say if she did not understand a question and to admit she did not know the answer if that was the case, were perfectly proper. He was right to try to put her so far as he could at her ease. Equally, he interrupted Mr. Hynes’ cross-examination when he thought Mr. Hynes’ questions were too complicated. No proper complaint can be made about that nor of the judge’s rephrasing to make them comprehensible. Nor was it wrong of the judge to indicate to V that if she found a question too hard to answer she should say so. However, there was an obvious danger that it might be seen as an attempt to come to her rescue. That was how it struck Mr. Hynes, but he may understandably have been somewhat over sensitive.

There were two occasions when the judge’s interventions were unfortunate. The first was when Mr. Hynes was asking V about the confrontation. This was important since V’s mother confirmed that V had not said that the appellant had raped her and that V’s sister had apologised for spreading rumours about him at school. Mr. Hynes when asked about the confrontation had asked a question of V which was in the form ‘Do you remember …?’ The judge interrupted saying that the question was one which contained a hidden assumption that there was something to remember. This was over pedantic and unnecessary and broke Mr. Hyne’s flow. The other was as follows:-

The appellant called his mother and his 12 year old son to give evidence. His son said that he had not come into the bedroom to find his father with V as V had alleged. The judge asked the appellant when he was giving evidence whether he had spoken to his son (as it appeared from material available to the judge that he had) about “the unpleasant consequences which might happen to anyone convicted of offences” such as the appellant faced. This was an issue which should have been left to prosecuting counsel to deal with. It led the judge in summing-up to deal with the son’s evidence in this way:-

The appellant’s wife said in relation to Count 3 she recalled the appellant going home to change his small son’s nappy and V going with him. They returned about 45 minutes later and she noticed nothing untoward. In cross-examination, the judge intervened suggesting there was no reason why she should remember such an ordinary occasion. He concluded his questioning thus:-

There were complaints made of other interventions in the appellant’s evidence but they do not in our view constitute anything objectionable. Overall, Ms. Cohen accepted that the judge’s behaviour was, as she put it, not a model but submitted that he had not been unfair. We are satisfied that he did on occasion intervene in a manner which was inappropriate. However, we are equally satisfied that his conduct was not such as would have rendered any verdicts unsafe provided that the summing-up had been clear and that the points he had intervened to make had not been underlined by adverse comments.

Unfortunately, the summing-up did not pass this test. We have already referred to the comments about the appellant’s son’s evidence. The judge dealt with his wife’s memory thus:-

The first 14 pages of the summing-up are a somewhat diffuse introduction, no doubt intended to help the jury in approaching its difficult task. The judge then directed the jury on rape and dealt with the medical evidence when giving a direction about the need to establish penetration. At p.16H to 17G of the transcript he said this:-

The judge went on to give a lengthy, confusing, inaccurate and wholly unnecessary direction on consent. The vice in it was that the jury might have thought that he did regard it as material which it would only be if sexual intercourse had taken place.

We have carefully considered the interventions and the summing-up together. We bear in mind that V’s description of how the rape took place was not easy to follow, although we recognise that the jury may have considered that she had simply been unable to describe in words what had occurred. In addition, her denial of any other sexual activity by anyone to her was inconsistent with the admitted medical evidence. We are persuaded that the judge’s interventions and comments may have had the effect of bolstering V’s evidence at the expense of the appellant and his witnesses. In particular, the jury may well have been led to believe that the judge thought little of the defence. The summing up failed to compensate for any of these matters and is open to positive objections. We accordingly take the view that the convictions are indeed unsafe and must be quashed.

We have considered whether we should direct a retrial. The appellant has served 14 months in prison. We are told by Ms. Cohen that V would be willing to give evidence again. The rape in particular but all the allegations are serious. The evidential problems, arising from V’s account and the medical evidence must be taken into account. So too must the length of time served by the appellant and the length of time since the alleged offences occurred. Nonetheless, we consider in all the circumstances that the public interest does require a retrial.