Lamb, R. v

The appellant, Mark Lamb, is a teacher who has been convicted of sexual activity in breach of trust with two 17 year old girl pupils whom he taught at his school. The anonymity of the girls in question is protected by statute. We will refer to them as AB and CD respectively. We will not name the school other than to say that it is in Essex. We allowed the appellant’s appeal and quashed his convictions at a hearing on 4 May 2007, but reserved our reasons, which are now contained in this judgment.

The appellant was convicted on 9 August 2006 following a six day trial in the Crown Court at Chelmsford before HHJ Hayward Smith QC and a jury on two counts charged under section 16(1) of the Sexual Offences Act 2003 (abuse of position of trust: sexual activity with a child). On count 1 (concerned with AB) the conviction was by a majority of 11-1; on count 2 (which concerned CD) the verdict was unanimous. On 25 October the appellant was sentenced to 40 weeks imprisonment suspended for 2 years on each count to run concurrently, with a requirement to carry out unpaid work for 100 hours.

The appellant was aged 33 at the time of trial. He was of previous good character. He had taught religious education at his school, where he was also head of the sixth form. He was popular with both teachers and students, and was known as an excellent teacher. A female colleague (Miss Bennett) and the head-master (Mr Hammond) were called to give evidence by the prosecution, but what they had to say was entirely in his favour. He called numerous pupils in his defence, all of whom spoke well of him.

The incidents which gave rise to the two counts occurred a year apart, in each case at the end of the school’s annual Leavers’ Ball, in May 2004 and May 2005 respectively. The ball was held at a hotel. Alcohol was available. The protagonists were all, to a greater or lesser degree, drunk or tipsy.

AB’s complaint was that at the end of the ball in May 2004, the appellant was in her room at the hotel and there attempted (unsuccessfully) to kiss her and touched her bottom. CD’s complaint was that at the end of the ball in May 2005 she and the appellant had kissed passionately a number of times on the hotel patio, and that on the third occasion the appellant had put her hand on to his groin, where she could feel his erect penis under his trousers. The appellant acknowledged the occasions in question, but denied any wrongdoing. He said that in May 2004 he had gone to AB’s room because he had heard that she was upset, and that there he had done no more than put an arm round her shoulders to comfort her; and that in May 2005 CD had tried to kiss him, but he had resisted her advances. It was alleged that the two girls were lying, but for independent reasons, for no collusion was suggested: AB in order to get back at her boyfriend with whom she was out of humour that night; and as for CD, he did not know why she should fabricate her account, for he had a good relationship with her, and all he could think of was that he had decided against making her a “midday assistant”.

Despite the unattractive nature of this defence, the complaints had nevertheless had a chequered history.

AB made no formal complaint until July 2005, some fourteen months after the May 2004 incident of which she complained. In the meantime: (1) that same night she had told her boyfriend, Dan, that, as he put it in his evidence, the appellant had been kissing her on the neck and touching her stomach, her bottom and her leg; (2) Dan tried to persuade her to report the incident, but she chose not to, saying at trial that it would ruin her A levels and “I also thought that it was a mistake as to what happened, that he didn’t mean it and everyone makes mistakes”; (3) five months later, in October 2004, she made an entry in her diary “Lamby tried it on with me. We cuddled and kissed, but I told him to go. Miss Bennett kept ringing. Told Dan. Dan extremely pissed off”; (4) in May 2005 she heard about the incident involving CD, through a mutual friend, Kirsty, and she then “felt partly responsible that it had happened again” and decided that “I must do something about it”; (5) even so she did not make a report until after a school trip to Mersea Island in July 2005, when, after two days discussions with CD and Kirsty, she finally persuaded the reluctant CD to join with her in a report: “It took me two days to persuade [CD] to report it because she didn’t want to”.

The essential issue on this appeal was whether the judge had directed the jury on the cross-admissibility of the evidence on the two counts in terms which did justice to the danger, not of guilty collusion to lie about the terms of the girls’ complaints, but of innocent contamination of their evidence arising from their conversations together.

At trial, AB gave evidence as follows. She had gone to the ball in May 2004 as the guest of her boyfriend, Dan, who was a leaver. She remained in school the following year, when she was deputy head girl. She was sharing a room at the hotel with Dan. She and he had been bickering all night “mainly brought on by the alcohol”. She had become upset that Dan had been dancing with a number of other girls, including an ex-girlfriend. She was feeling a bit jealous about this. (In his evidence, Dan said that after he had danced with another girl, he and AB had had a falling out and that they almost ignored one another there after. At one point of the evening she declined Dan’s request for a dance and, as “a way of getting my own back” told him “Oh no, I’m dancing with Lamby”, as the appellant was known. She took the appellant on to the dance floor. Towards the end of the dance, he lifted her up and “I put my legs round his waist”. That came from her witness statement, which she verified in cross-examination. In her evidence in chief she had said that “he put my legs around his waist”.

At between midnight and 1 am she and Dan went to their room, but Dan left her there for the bar. She was visited in her room by a friend who tried to persuade her to join others in the bar, but she declined. A little later the appellant knocked at her door, saying that he had spoken to Dan and had come to see if she was OK or upset. (The appellant in his interview and in evidence said that he was concerned that AB was upset and wanted to check that she was OK. He told his colleague, Miss Bennett, that he was going to check on AB in her room. Miss Bennett knew that he was there, because she rang him there later.) AB and the appellant sat on the bed talking. She felt comfortable and regarded the appellant as a friend who had come to see if she was OK. She said that he put his right arm around her, and she did not think anything of it, at the time.

According to her evidence the mood changed when the appellant said that in the next year she would no longer be a student, things would be different and they could get a room together. (She agreed in cross-examination that this did not make sense, as she would still be a student next year.) She got up, but did not ask him to leave. She said that at one point she was kneeling on the bed facing him as he stood and he put his hand on her bottom and said “Oops, I’m touching your bum.” And he tried to kiss her, a number of times, leaning towards her, and she pulled away. She thought he was drunk.

Dan arrived back in the room and asked her to come to the bar with him. She said no, and Dan left again. Miss Bennett phoned, a number of times, to speak to the appellant, and he said he would be down in a minute. (Miss Bennett said she phoned three times, AB in her witness statement said at least five times and possibly as many as ten times.) But he only left when AB opened the door for him to go. He had been in her room for about half an hour.

Five minutes later, a friend arrived to invite her again to join others at the bar. She agreed, and did not say anything to her friend, since they were not that close. At the bar she saw Dan, and asked him to come with her back to the room. There, she broke down crying and told him “everything”. (In due course, Dan’s evidence of what he was told went well beyond AB’s evidence of the incident. He said that she told him that “he was kissing her on her neck and touching her stomach, her bum and her legs”.) She was cross-examined on the basis that she told Dan a story to make him jealous, and that none of it had happened, but she denied that. He urged her to report the incident, but she did not want to. She thought it would ruin her A levels, also that it was a mistake, that the appellant “didn’t mean it”, and everyone makes mistakes.

On the following Monday, back at school, AB met the appellant, who said: “We had a funny conversation on Friday night.” He also suggested that it was “best to keep it to ourselves”. There was no apology. After that AB did not continue with religious studies (presumably at A level) in the appellant’s class. She was angry and annoyed, because their previous friendly relationship (she also spoke of an extremely good relationship, and of vying with another girl student for his attention) could not continue as before. She did, however, ask the appellant to write her a university reference in October 2004, since she preferred it to come from him, as head of the sixth form, to one from her form tutor, who she felt did not know her so well.

I have referred above to AB’s diary entry of October 2004. I repeat it here for convenience: “Went to Leavers’ Ball. Lamby tried it on with me. We cuddled and kissed, but I told him to go. Miss Bennett kept ringing. Told Dan. Dan extremely pissed off.”

In May 2005, AB went to the Leavers’ Ball again. That is the occasion of the incident involving CD. AB was now a leaver herself. Her chronology of what happened thereafter is not clear from the judge’s account of her own evidence, but it appears from other evidence at the trial that two days after the 2005 ball CD told her friend Kirsty, who was also a very good friend of AB, about the incident involving the appellant and her, that is to say that they had kissed and that he placed her hand on his penis; that CD had then pulled away and the appellant had said “okay, fine”. Kirsty was shocked and phoned AB for advice. AB then told her that “the same thing” had happened to her the year before.

In July 2005, the three girls, AB, CD and Kirsty met up at a school trip to Mersea Island. AB’s evidence about what happened on this trip was as follows:

CD was a year behind AB. In May 2005, she was 17 and, although not a leaver herself, had been invited to the ball. She knew the appellant quite well and had a friendly student/teacher relationship with him. She would chat to him regularly in his office about school matters. She drank 10-12 bottles of Smirnoff Ice, a vodka alcopop, and accepted that she was “drunk up to a point”. She danced with the appellant.

Towards the end of the ball, she was at the bar with other students, the appellant and another master. She cuddled the appellant and the other master. She acknowledged herself as flirtatious, bubbly, fun and mischievous. She kissed them both on the cheek. She encouraged them to kiss her on the cheek and then moved her head so that the kiss came on the lips. “It was all good fun.” She thought that the appellant was drunk. Still later, after returning to her room and then to the bar, she found the appellant and the other master still there. The appellant wanted to fetch his camera from the ballroom, and CD said she was going that way and accompanied him. They were holding hands. The appellant went outside on the patio, and first she lost him and then she followed him outside and found him there. “We ended up kissing”, then stopped and then started again, then stopped. The appellant said: “I can’t do this, I’m married.” They were interrupted by a passing couple, but there was then a third kiss. It was then that he guided her hand to his crotch area, where she felt his hard penis. She moved her hand away, saying “Stop, this isn’t right.” The appellant said: “Fine, fuck off”.

The next morning, at the hotel, the appellant sought her out and apologised. She said sorry too. She asked him not to say anything.

That day, and again two days later, CD met Dan’s sister, who was also a student at their school. She said that she had seen CD and the appellant kissing. On both occasions CD said that nothing had happened. (The sister also gave evidence: her account was that CD had asked her not to tell anyone as the appellant could lose his job.)

Back at school, CD told the appellant about her conversations with Dan’s sister. She was worried and upset, and in this state told Kirsty. She heard from Kirsty about AB’s incident the previous year.

In July 2005, she went on the school trip to Mersea Island, where she spoke to AB, who told her “it has happened to me. We must make sure it doesn’t happen again.” Although CD reported her incident, her position remained as she put it in her witness statement, viz –

She was cross-examined on the basis that she had made her story up, but she said it did happen.

The appellant was a married man with a young child. He had been to eight Leavers’ Balls. He was extremely close to AB. He described her as a perfect student. He said that at the time of his arrest he did not think that there was any reason for her to have made her allegations, but that subsequently he felt that they had been escalated to make Dan jealous. He accepted to being tipsy at the May 2004 ball. He had gone to AB’s room because he was fond of her, was slightly annoyed that her boyfriend was not bothering with her, and felt sorry for her. She looked upset. He put his arm around her, to console her. He denied the gravamen of the complaint against him: that he had tried to kiss her, had touched her bottom, or had spoken of sharing a room the next year. He was in the room half an hour. He was getting a lift home with Miss Bennett and her fiancé, and when she started ringing, it became a joke to keep her waiting. On the following Monday he did not ask AB not to tell anyone.

As for May 2005 and CD, he could not think of why she should make an untrue allegation. He was reasonably drunk. On leaving the bar with CD he did not hold hands with her. They did not kiss, but CD leaned towards him to kiss him. He attempted to avoid it, but failed. He was kissed on the lips. He pushed her away. They did not kiss three times. He did not put her hand on his erect penis. He did not say “fuck off”. That was a lie. He did seek her out the next morning, but that was to reassure her about her own behaviour.

There is one essential ground of appeal, although it has gone through some development and reformulation. However, as explained at the hearing of the appeal, the real complaint is that, in circumstances where the new provisions regarding bad character contained in section 101 of the Criminal Justice Act 2003 (the “2003 Act”) permitted the evidence on each count to be cross-admissible on the other, it was important for the judge to direct the jury carefully about the dangers of innocent contamination of the girls’ evidence, especially in the light of the events of the Mersea Island weekend (but also to some extent because the two incidents were not in themselves very similar, but appear to have been regarded by the girls, and the judge, as being substantially similar, if not identical).

Thus there was discussion before the judge about the 2003 Act. The issue of cross-admissibility was not pressed to a ruling. Rather Miss Kamill, on behalf of the appellant, then the defendant, accepted that the jury would be directed that the evidence on the two counts would be cross-admissible. There was also to some extent discussion about the manner in which the judge would direct the jury in this connection. Miss Kamill’s complaint, however, is that the judge’s direction differed from that which she had anticipated in two important respects: primarily, in that the judge failed to attach significance to the dangerous aspect of the lengthy discussions between the girls at Mersea Island, and in this connection omitted an important part of the standard JSB direction in relation to cross-admissibility; and secondarily, in that the judge included a passage on “coincidences” which Miss Kamill submitted went well beyond what the evidence allowed.

On behalf of the Crown, Miss Nash was disposed to accept that the judge ought to have given a direction about innocent contamination (or what the standard JSB direction describes as conscious or unconscious influence) as well as guilty collusion, but that in circumstances where there had been no case of collusion at all, nor of innocent contamination, but only a defence that the girls had been independently lying for their own reasons (or for none), the convictions were nevertheless safe.

Section 98 of the 2003 Act provides:

Section 112(2) provides:

Section 99(1) provides that the common law rules governing the admissibility of evidence of bad character are abolished.

In R v. Chopra[2006] EWCA Crim 2133, [2007] 1 Cr App R 16, Hughes LJ said (at para 14):

Section 101 contains the gateways for the admission of evidence of bad character. It provides –

There are further provisions in section 103 relating to the gateway in subsection (1)(d) of section 101. For instance –

Section 107 emphasises the importance of the absence of collusion or innocent contamination of such bad character evidence. It provides –

In the present case, there was the clear possibility that the two complainants had been consciously or unconsciously influenced in their complaints or their evidence about them by hearing of, and discussing with one another, the circumstances of their respective incidents. For instance, AB’s evidence was that, until she heard about CD’s incident, she had put her own experience down to “a mistake as to what happened, that he didn’t mean it”. She therefore re-evaluated her own experience in her own mind as a result of hearing about CD’s experience. That is perfectly natural, but it is also, at least potentially, highly relevant to the jury’s view of the weight of the evidence.

Section 107 is dealing with the situation where in the course of a trial the judge is satisfied that false or misleading evidence has been given, or even that “evidence is different from what it would otherwise have been”. That situation did not arise at trial, but, as will appear below, Ms Kamill was nevertheless concerned that the judge should direct the jury about the ramifications of the prolonged discussions at Mersea Island between the two complainants. What is the position, therefore, where an issue of collusion or innocent contamination arises before the jury, now that common law principles governing the admissibility of evidence of bad character have been abolished?

In his Evidence of Bad Character, 2006, Professor J R Spencer QC explains the matter as follows:

Prior to the 2003 Act, the standard JSB direction (direction 20.3 of April 2003) where there was cross-admissible evidence arising from similar incidents included the following language:

Miss Kamill’s primary submission on this appeal is that the judge failed to address the important content of direction 2(ii) above relating to innocent contamination, and that this made the convictions unsafe.

In Chopra the defendant was a dentist charged with indecent touching of three teenaged patients. The judge ruled that the evidence of the three patients was cross-admissible provided that collusion or contamination between them could be excluded. The dentist was convicted on the counts relating to two of the patients, but not on the counts relating to the third. The appeal was essentially based not, as here, on the nature of the directions given, but rather on the disputed ruling of cross-admissibility. This court held that in such circumstances the rules of the common law had been replaced by the provisions of the 2003 Act and in particular those relating to the section 101(1)(d) gateway. There was no issue of collusion or contamination, however, – for the patients did not know one another – other than arose from the typical situation where one formal complaint led to the discovery or re-discovery of other complaints.

The following extracts from the judgment of this court given by Hughes LJ are relevant to the present appeal. They emphasise the significance of the exclusion of collusion or innocent contamination in a case where the section 101(1)(d) gateway renders evidence from several complainants cross-admissible on several counts.

We cite these passages from Chopra because, although as it turned out, it became common ground that the evidence of the two girls was cross-admissible on both counts, and indeed it was accepted by Miss Kamill, as stated above, that that was so: nevertheless, it became important for the judge to warn the jury in adequate terms of the danger of innocent contamination. That was done by the judge’s directions in Chopra, even though in that case the chance of collusion or contamination was extremely small.

On the question of cross-admissibility, the judge directed the jury as follows (at pages 12/13 of the transcript of his summing-up):

It may be observed that the judge emphasised at length, and repeatedly, that the jury had to consider an issue of collusion or connivance, by which he made clear he meant false fabrication, even though that issue had not been raised or suggested in cross-examination, and even though there was, as the judge reminded the jury, “no evidence” of such collusion or connivance. However, the judge did not go on to direct the jury about the possibility of innocent contamination, even though that alternative is a standard part of the JSB recommended direction, and even though on the evidence there plainly was room for concern about such conscious or unconscious influence.

At the end of the summing-up, Miss Kamill asked the judge to address that concern. Inappropriately, she used the word “collusion” to describe it, but she nevertheless made clear that what she was speaking about were the two days of discussions between the two complainants and Kirsty at Mersea Island. The judge immediately took the point, and agreed to remind the jury of the Mersea Island trip. On the jury’s return, he told them this (at page 74 of the transcript):

The difficulty about that, Miss Kamill submits, is that, coming right at the end of the summing-up, divorced from the direction about cross-admissibility and collusion, it would have lost all impact. In any event, if the jury had connected these further remarks with the direction about collusion, it would merely have been added in to a direction which had all but removed the whole concept of collusion from the jury.

Miss Kamill also complained about a further passage in the summing-up, where the judge spoke about the similarities between the two incidents, albeit the judge used the term “coincidences” to describe such similarities, in order to raise the issue “whether the explanations for such apparent coincidences is that the allegations are true”. This passage came immediately after his direction about collusion. He said (at page 14 of the transcript):

Miss Kamill submitted that in this passage, which had not been foreshadowed in his discussions with counsel, the judge over-emphasised the similarities between the incidents, speaking like an advocate. He made no allowance for any dissimilarities. Moreover, many of the factors relied on as making the incidents similar were not relevantly so: thus it did not go to the significance of similar fact evidence that both girls thought highly of the defendant as a teacher, or that they were upset afterwards, or that they were reluctant to report. Those factors might, outside the consideration of similarities, go independently to support the individual complaints, but not as a matter of cross-admissibility.

Finally, the judge directed the jury about propensities. He warned them that they could not use evidence about which they were unsure on one count to support evidence about which they were unsure on another count. It was only if they were sure of guilt on at least one count that they could use that to assist them on the question whether on the other count the defendant was telling the truth or had a tendency or liability to act in a sexually inappropriate manner when in drink. Miss Kamill had no complaint about that direction.

There was some debate before us as to the nature of the defence advanced on behalf of the appellant at his trial. It was common ground that it was said that each of the two girls was lying, but that they had not colluded to do so. So much was also clear from the summing-up. There was a dispute, however, as to whether it had been suggested that the complaints might have been the product of innocent contamination, a conscious or unconscious reinterpretation of the events in the light of the girls’ extended conversations about them. Miss Kamill said that it formed an important part of her final speech, although she accepted that it was not something that she could have very easily cross-examined about. Miss Nash, on the other hand, asserted that the Mersea island discussions were never explored in depth and that innocent contamination was never made an issue in Miss Kamill’s final speech. Miss Nash nevertheless accepted that the fact of the two days’ discussions between the girls at Mersea Island may well have made a direction about innocent contamination necessary. However, she submitted that the convictions remained safe.

Ultimately, we think that this is a short point. It is unfortunate that there is a different recollection between counsel as to the conduct of the trial on the point of innocent contamination. It may be that Miss Kamill thought that she gave the point greater prominence than she did. Moreover, even when reminding the judge about the Mersea Island discussions, Miss Kamill had used the inappropriate term of “collusion”, a matter which it is common ground was never an issue at trial. In these circumstances, it is possible that in their discussions with the judge the alternative of innocent contamination had not been given appropriate or any prominence. Nevertheless, we think that the point was plainly there, and there to be seen, and that the nettle needed to be grasped. The judge could not afford to leave it out. It was inherent in the judge’s question to the jury (in another context) quoted above – “Did each or either girl misunderstand the defendant’s intentions at the time?” In circumstances where AB originally told a story to her boyfriend which went vastly beyond her ultimate complaint, but at the same time originally put down her incident “as a mistake as to what happened” etc (which is not consistent with the account she gave of the incident to her boyfriend), and where she only made a report after learning of CD’s complaint and discussing it with CD; where CD never wanted to report her incident and only did so after extensive discussions and pressure from AB; and where AB interpreted CD’s experience as revealing new insights as to her own, a matter on which there would obviously have been discussions between the girls: in these circumstances, we think that the standard JSB direction encompassing innocent contamination as well as dishonest collusion should have been clearly explained to the jury, as well as its significance to the facts of the case. The fact that all the parties were more or less drunk or tipsy at the time of the incidents is also relevant, if their acts, intentions and the way in which they were perceived are subsequently to become the subject matter of prolonged discussions.

What in fact happened, was that the judge instead repeatedly and at some length directed the jury only on the matter of dishonest collusion, an issue which had not been raised at trial, and which the judge effectively withdrew from the jury at the very same time as he was giving it such emphasis. So, not only was the necessary point not made, but the wrong point was emphasised. The jury would have been likely to think that, having rejected collusion, as they were invited to do, they were entitled to give the cross-admissible evidence full weight on each count. Whereas they should have been warned that they must take the possibilities of conscious or unconscious influence into account when assessing the weight of the complainants’ evidence. The subsequent direction that they could use guilt of which they were sure on one count to assist them on the other count on the question of propensities, which in theory might have limited the cross-admissibility of the evidence on the two counts, would have been unlikely to have deterred them from using the evidence collaterally. What otherwise was the point of the judge’s directions as to “coincidences”?

Although the judge mentioned the evidence about the Mersea Island discussions in the course of his summing-up, and again, as cited above, at its end at the request of Miss Kamill, he never tied that evidence in to the question of innocent contamination.

We think that the importance of a proper direction as to the significance of similar fact evidence in respect of counts on an indictment where possibly contaminated evidence is cross-admissible has been emphasised by section 107 of the 2003 Act, even if that section in terms only relates to the judge of the trial himself. Professor Spencer’s observations about this section are pertinent (see especially his paras 5.35, 5.37, and 5.38 cited above). The importance of a proper direction has also been emphasised by this court in Chopra.

In our judgment, therefore, the judge’s failure to warn the jury about the danger of innocent contamination was a material misdirection, which went to the heart of this case. We do not suggest that the judge was wrong not to have stopped the case himself, something that was never suggested, but we do think that in the circumstances the jury’s verdicts are as a result of the judge’s misdirection themselves unsafe. In this connection, the manner in which the judge dealt with the question of similarities, although it would not in our view by itself have called the verdicts into question, did not assist. As Hanson and Chopra have emphasised, sufficient similarity raising the issue of the likelihood or unlikelihood of innocent coincidence is a relevant and sometimes critical test. It is therefore necessary for the judge, if he outlines the similarities to the jury, to give a balanced and accurate account of them, so far as they evidence a propensity which makes it more likely that a defendant has committed an offence.

It was for these reasons that we allowed this appeal and quashed the convictions.