JS v Regina

JS is now aged 65. On the 3^rd October 2006 at Norwich Crown Court he was convicted by a jury (11 to 1 majority) on 16 Counts. He was thereupon sentenced by His Honour Judge Downes in total to 13 years imprisonment. He applied for leave to appeal both conviction and sentence – with only his latter application supported by Advice from the junior counsel who had represented him at trial. These applications were refused by the single judge, but were renewed to the Full Court supported by oral submissions by Mr R H Christie QC, who by then had replaced trial counsel. In the result the Full Court refused leave to appeal against sentence, but granted leave to appeal against conviction. This appeal has been before us, advanced by Mr Christie and opposed by Mr Lindsay Cox, counsel for the Prosecution throughout.

By way of a full, carefully researched skeleton argument Mr Christie advanced twelve grounds of appeal, inevitably of variable weight. Before considering and ruling on any such, it is necessary to give prior consideration to several matters, starting with the indictment.

The 16 Counts fell into three sections. The first such section alleged offences against TB:

The second section alleged offences against Michelle.

The final section alleged offences against S.

This full deployment of the indictment purposely serves to identify the “historic” nature of a Crown case as presented in September 2006. The overall period embracing the Counts fell between the 11^th June 1969 and the 7^th November 1988, allotted as to

Mr LB and his wife, MB had five children. Two such were the complainants, S (d.o.b. 1961) and Michelle (1962). The remaining three children were A (1963), K (1965) and L (1967). They fostered two further children: the complainant, TB (7^th November 1972) and her sister TT (1971). During the period covered by the indictments the family lived in Ipswich (to 1975) and B Road (from 1975), respectively modest, three bedroom houses. Inevitably, over the intervening period the three complainants and their siblings have left home. S married in 1980; TB left in acrimonious circumstances in September 1988; and Michelle first married in 1983. As to the parents, Mrs MB died in 1992; Mr LB lives but has been in poor health for a long time.

The Appellant was for many years a good friend of Mr LB and he married a niece of Mrs MB. It became effectively common ground that over a prolonged period the Appellant, Mr LB, and their mutual friends would regularly have a Sunday lunchtime drinking session at a public house, subsequently returning to the B Road address for further socialising. The complainants categorised him as an uncle. The Appellant’s brother, John, was another member of this fraternity – alas, he is now seriously disabled by reason of a head injury.

In the course of the Police investigation each complainant gave her respective account in the course of an interview, that interview being video recorded. At trial each such video was played so as to constitute evidence in chief; thereafter there was conventional cross-examination. With respect to each Count the sole direct evidence was provided by the relevant complainant.

TB spoke of repetitive sexual assaults allegedly committed by the Appellant, each time after he had returned with the others from the Sunday drinking session, which assaults were sustained in and between her seventh and fifteenth years. Specifically,

Michelle founded the following Counts:

S founded the following Counts:

An Addendum to the foregoing is necessary to sustain an aspect of this appeal. On the 10^th March 1989 TB underwent a termination of pregnancy at West Suffolk Hospital. In the course of her video interview she maintained strongly that the Appellant was the father. Disclosure in advance of trial of the contemporaneous medical records served to demonstrate that this could not be correct. The procedure was carried out at 10 weeks gestation – as at conception the Appellant could not have had access to her, she having left home in the preceding September. In the course of cross-examination junior counsel then representing the Appellant put this to TB (without, unfortunately, deploying the relevant documents such including a medical record inferentially identifying a boyfriend as father) and secured from her a clear concession that the Appellant could not be responsible. At the end of re-examination (which did not return to the topic, the Crown accepting that the documentation resolved the issue) the judge invited TB to confirm her position:

“Q. The reason I asked is you appeared to be accepting that it could not be his.

A. No.

Q. You are still saying it is.

A. Yes.

Q. Thank you very much.”

We return to this later in the judgment.

The overall timescale demanded careful preparation of a history of the respective complaints so as to provide material for consideration of consistency and any possible collusion or collaboration. None such seems to have been available at trial. Happily, we have had the benefit of sustained research and investigation by the two counsel before us. In the result the essence of the matter is as follows:

Before parting from this history it seems to this Court that for the purposes of the jury the following is apparent:

The Appellant was himself interviewed and answered questions. At trial he gave evidence. Essentially it amounted to a categoric denial of any offending – whether lying or mistaken the complainants were wrong. He was supported by several witnesses, starting with his wife and son. Through other witnesses it was alleged that LB was a sexual abuser leading to a submission floated before the jury to the effect that the complainants had in truth suffered at his hands, a suggestion robustly denied.

One particular point requires mention. When interviewed by the Police the Appellant sought to distance himself from the B Road addresses and said he rarely visited. By contrast when giving evidence he agreed that he had been a regular visitor. He was given an opportunity to explain the contrast and failed.

By way of his perfected grounds, Mr Christie raises various points, in summary under three heads:

On behalf of the Crown Mr Cox resisted these Grounds of Appeal. He accepted that some criticisms could be made as to the Summing Up but contended that overall there was no good basis for regarding the convictions as unsafe.

We pay tribute to the professional standards evinced by Mr Christie and Mr Cox in terms of research, preparation and presentation. We do not propose to rehearse the respective submissions – our indebtedness to such will become apparent.

In the event we propose for good reason to take the following course. Thus we forthwith record our judgment on this appeal as follows:

It follows that we are constrained to allow this appeal and in due course to quash the verdicts. Before then we shall of course develop our critique of the summing up but we will say nothing more about the other issues raised by Mr Christie. We believe that we have to anticipate an application for a retrial. Obviously any such application, if made, will be considered on its merits but our present concern is not to undermine the conduct of any possible retrial by making rulings that could inhibit the unfettered discretion of a new trial judge. The submissions of Mr Christie on abuse of process and associated topics are relevant not just to this appeal but potentially to the conduct of any retrial and invited a response from this Court that could undesirably curtail or direct future rulings notwithstanding the change of circumstances inevitably attendant upon a fresh hearing. By contrast, a focus upon the summing up can only assist rather than inhibit any retrial.

As at trial the Appellant was a 63 year old man of good character. He was confronted with very serious allegations that had been held back for between 18 and 37 years. Before 2005 he had had no forewarning of the advancement of any such and this is not a case in which silence had been secured by ongoing threats. A trial that was fair to him and to the complainants constituted a forensic challenge. In our judgment the guilty verdicts could only be seen to be safe if they were based upon adequate evidence followed by rigorous directions and guidance sufficient to ensure that the jury had delay and the potential for injustice as an operative component in their decision making. It is, of course, by way of the summing up that the judge guides and directs the approach a jury should adopt in cases of historic allegations of sexual abuse. Since a jury gives no reasons for its conclusions, it is only by fair and pertinent directions, which confront the problems of delay, that there can be sufficient assurance that the convictions resulted from a rational approach, with the moral authority that the burden and standard of proof are designed to achieve. It is in this light that we have to assess that which was put before this jury. By way of guidance the trial judge had the benefit of the JSB Specimen Directions. The Direction which related to the impact of the delay was in part specifically based upon a general proposition set out by this court in R v Percival (unreported) 19^th June 1998:

“Delay of up to 32 years must threaten the fairness of any criminal trial, not least when the Crown case depends on late complaint and oral testimony, see R v Telford Justices ex p. Badhan (1991) 93 Cr. App. R. 171 at 179. True, a developing concern with and, understanding of sexual abuse is reflected in a growing experience of cases featuring delays that at one time would have been regarded as intolerable. That experience and the underlying problem of unreported abuse has served to encourage experienced judges to be more liberal in their concept of what is possible by way of a fair trial in the face of delay, but, as we think there is a price, namely safeguarding the Defendant from unacceptable resultant prejudice by a “proactive” approach in terms of directions. Before a conviction following such a trial can appear to be safe, it is necessary to be satisfied that the judge has confronted the jury with the fact of delay and its potential impact on the formulation and conduct of the defence and on the Prosecution’s fulfilment of the burden of proof. ”

That proposition was subsequently endorsed by this Court in R v Lloyd (unreported) 30^th November 1998 and in R v M (2000) 1 Cr. App R 49, albeit that by way of both these latter decisions there was emphasis upon the need to tailor the summing up to fit the particular circumstances of a case. It is our reluctant view that in the event the summing up failed to meet up to the challenge posed by the exceptional delays.

Before turning to detailed consideration we should acknowledge a transcription problem. Seemingly the judge’s microphone was not functioning and the transcribers have had to work from what was recorded through the microphone of counsel. Happily, the resultant problems had little impact on so much of the transcript as covered directions – problems more frequently arise during the review of the evidence.

Delay. The judge first confronted the jury with the potential impact of delay at a passage extending from 19F to 21 D. it is necessary to cite it in full:

“Now, in this case, although the complainants are now adult women, they were giving evidence (several inaudible words) about things that had happened when they were much younger. In some cases, they were very young indeed and although there is no rule of law which requires the evidence of children (inaudible) that is supported in (inaudible), you will need to have a little care when you are dealing with the evidence of children, particularly young children, talking about things that happened a very long time ago, because experience tends to show that in any particular set of circumstances, an adult might have reacted rather differently to a child and for instance, it may be that an adult will make a particular point in remembering the date or the time, the sequence or what day it was. Things of that sort, whereas of course a child is sometimes more alert to what is actually happening and do not pay a great deal of attention to detail; days, dates, times, what they were wearing and things of that sort and what might seem to be a rather irrelevant detail to them, so bear that in mind and also when there are discrepancies, particularly when you are dealing with cases that are very old – and these are very old, historic allegations – memories can play tricks and sometimes fail altogether.

It may be that that means the defendant will be unable to remember details but it also means that witnesses might not be able to recall all the details with exactitude and remember when you are dealing with young children who may not recall detail or see the importance of detail, but as I say, recall the bits that matter to them.

It is also right, perhaps to have in mind when you are dealing with something that happened they say when they were very young with the ability of children to complain to authority because whilst these ladies can stand here and say:” Why didn’t you scream and shout or why didn’t you complain?” When you are very young and the person is at least, sort of in authority and also much older that the (several inaudible words) it is sometimes rather more difficult to complain about it. At least it may appear to them to be rather difficult for them to complain.

If you find that there are discrepancies, look for an explanation and decide whether the explanation for the discrepancies is so fundamental that you have to disregard all of the evidence or of there is a reasonable explanation for why there is a discrepancy or (several inaudible words).”

He returned to the topic at 28B and thereafter to 29E his summing up broadly follows the JSB Specimen Direction:

“Now, the last principal matter of law is the question of delay. These things, if they happened, happened a long time ago, and you have to be aware of the real danger of prejudice to a defendant. You have to keep that in your minds when you are considering the case about the length of time has gone by, and as I said earlier, memories fade and so on with the passage of time.

You are entitled first of all to consider why the matters did not come to light sooner. Does that reflect badly on the complainants, or is there an explanation which you find satisfactory? You have had the three ladies give their various reasons in this case, ranging from concern about the father, and in one case, I think (several inaudible words) until the father dies (several inaudible words) because of upsetting him and possibly making him ill, or trying to shut out what had happened and get on with life. There are a variety of explanations (several inaudible words), but you are entitled to look at those and see what you make of those explanations. Do they reflect upon the reliability or not? Do you find the explanations acceptable?

You should also make allowance for the fact that from the Defendant’s point of view, the longer that goes by between the incident, whatever it was, and coming to court, may reflect, it may make it more difficult for him to answer the complaint made. If you think about it for a moment, if you were in that position and had to think back 20 years or more as to what might have happened, you might find yourselves in some difficulty being able to explain what was happening, and possibly even remembering enough to form a defence, and obviously (several inaudible words) if you now cannot remember the dates so long after, it might have been possible (several inaudible words). You cannot do that now, because you cannot remember the date.”

He then concluded this topic with a short paragraph at 29F:

“I do not think any particular difficulty has been raised on behalf of the defendant in this case, but an alibi (several inaudible words) and there might have been I suppose, some sort of documentary evidence 20 years ago that no longer exists, so bear all that in mind when you consider this case, and ensure that this defendant is not prejudiced in any way by the passage of time. This is how you deal with that (inaudible).”

In our judgment these directions were inadequate to meet the circumstances of the case:

In the context of our criticism of the paragraph at 29F, we refer to paragraph 13 of this judgment and TB’s termination of pregnancy. It will be appreciated that this was an occasion (seemingly the only occasion) upon which a complaint could be tested by reference to independent contemporaneous documentation. This testing served to show that the complaint (viz., that the Appellant had made TB pregnant) was ill-founded. For anyone concerned about the impact of the delay this was grist to the mill. First, but for the fortunate survival of the relevant documentation a serious allegation (inter alia, one potentially impacting upon sentence) would have stood, challenged only by the Appellant’s necessarily belated oral denial. Second, the passage cited from the re-examination of TB served to show that, having persuaded herself over many years of that which could not be true, sustained concession was no longer possible.

In the event not only was there a failure to remind the jury of this evidence in the context of delay directions, but the eventual sole reference to the episode in the course of the review of the evidence was almost cursory:

“She agreed that she had had the termination of pregnancy, and she was asked how could it be JS’s child because by March she would have been a lot more pregnant than she is saying, and she said there is no doubt in her mind it was, but she is a bit confused about the dates.”

We have acknowledged that the judge was not shown the relevant documentation, hence a re-examination by him and a summing-up on the matter which respectively served effectively to leave open the paternity issue and to by-pass relevance to delay.

We have other comments about the summing up, as follows.

Good character. The Appellant was plainly entitled to the classic two limb good character direction. In the event it was as from 13G:

“But, it is something that you must take into account in his favour and you do that in two ways. First of all, when somebody gives evidence like this defendant has done, and called evidence as with anyone of good character, it can support his credibility. That means it is something that perhaps you can take into account when deciding whether you believe his evidence.

Secondly, because he is now 63 and has no convictions on his record or no cautions, it may be – and you are entitled to take this view – that he is less likely to start committing this sort of offence now, although of course, you have to bear in mind that although 63 now, the time that the young ladies were talking about was (inaudible) years ago. Nevertheless, that is something you are entitled to consider here.”

As to the first limb, the words “something that perhaps you can take into account” are unacceptably diffident by reference to the JSB Direction, viz “it is a factor which you should take into account.” As to the second limb, we comment as follows. The opening words reflected a reading from the JSB Direction viz., “In the second place the fact that he is of good character may mean that he is less likely to commit this crime now.” Given the Appellant’s age and history, this was self-evident – and for the jury’s purpose effectively irrelevant. It is unfortunate that the judge did not pick up the addendum to this Specimen Direction viz., “In cases where it is necessary to give the Delay direction, see direction 37, para 4.” Reference to the latter serves to supply a precedent particularly germane to the instant case as serving to identify the relevance of good character for second limb purpose. “Having regard to what you know about this defendant and in particular the […] years since the date of the alleged offence and that no similar allegation has been made against him you may think he is entitled to ask you to give considerable/more than usual weight to his good character when deciding whether the Prosecution has satisfied you of his guilt.” Obviously a mere failure to adopt a Specimen Direction cannot in itself found an appeal, but the inadequacy of this truncated second limb direction does serve, in our judgment, to contribute to our finding that the delay directions were seriously flawed.

Bad Character. At 17B the Jury received a bad character direction pursuant to the provisions of the Criminal Justice Act 2003, which opened:

“Now, in the course of the case, because these charges were specimens, you have heard other matters which are not the subject of charges; that things that happened, for instance on more than one occasion.

You heard for instance evidence from I think it was A that on occasions the defendant would dance with her in a rather provocative manner. That of course is not the subject of a charge. These other matters are admitted so that you can see the whole picture and you can see whether it helps you to decide the whole case, and in particular what you have heard about the defendant for instance dancing provocatively and committing other matters that are not actually charged on this indictment amount to or might amount to what the law calls reprehensible behaviour; another sort of misconduct. ”

The immediate concerns are twofold: what “evidence of, or a disposition towards, misconduct” (see s.98) is referred to; and whether a bad character direction was justified. As to the first concern, it is only “provocative dancing” with A that is particularised and from the subsequent review of the evidence we learn that this occurred when she was 14 or 15, that is in 1977 or 1978. Given the delay, given the lack of particularity (and hence of any basis to assess the weight and significance of whatever further allegations are referred to), we query whether any direction was justified other than a direction to attach no adverse weight to these matters. If we are wrong in that the evidence was more cogent than appears from the summing up, then we are satisfied that that which the judge was referring to should have been fully deployed in terms of the respective cases of Prosecution and Defence with directions sufficient to comply with s. 101 et seq. built upon such. Overall this contributes to our concerns about the summing up.

Mutual Support, Complaints and Collusion. In evidential terms these are intermingled concepts, effectively covered by that which counsel put before us by way of a timescale and set out in paragraph 14 of this judgment. Adverting to the summing up, we are satisfied that the directions given to the jury on these topics were, in terms of general propositions, adequate. What is a matter of concern is the failure to provide any particularity, that is, to draw specific attention in the course of the directions to evidence relevant to such. We accept that the judge did not have the benefit of the help given to us but, unhappily, he does not seem to have asked for such in advance of the summing up. Thus it is, by way of example, attention is not drawn to the lack of communication of complaint as between the complainants by way of warning – nor to the disputed evidence of Mr S as to more recent meetings between the complainants. Essentially, the jury were left to assess the impact of the directions, unaided as to potential relevance in terms of evidence.

Lies. At 22B the jury were directed that lies by the Appellant were capable of affording independent support for the complainants. At 24B he gave to the jury a conventional Lucas direction. The lies in question were those identified in paragraph 17 of the judgment – that is, as allegedly told in the course of interviews but corrected in evidence. At no point in his directions on this topic did the judge draw attention to the potential impact of delay on the weight of this part of the Prosecution case. The lies were told in 2005 when after many years he is first asked to speak of visits to B Road; they are effectively corrected in the light of the evidence when on oath. Unless attention is specifically drawn to these slightly unusual circumstances and the possible implications in terms of the impact of delay, there can be no fair appraisal of the point taken by the Prosecution. If the original lies had been placed in the proper context of an accusation made so many years after the alleged offences, with a subsequent correction at trial we do not think the lies have sufficient weight to afford independent corroboration, or, at least, not without a strong warning.

As foreshadowed at paragraph 22 of this judgment we are satisfied that the summing up was so defective in terms of guidance and direction that the verdict must be regarded as unsafe, leading to allowing this appeal and quashing the convictions. We have reached this conclusion with hesitation and reluctance, anticipating the stresses and frustrations inevitably arriving from this further step in the forensic history. We wish to stress that our conclusions are based on the inadequacies of the process which led to the convictions. We were not at the trial. We did not hear or see the witnesses. Nothing we have said can or should be understood as being any reflection on any of the witnesses, for either side, who gave evidence. It was and may, in the future, again be, for the jury to judge their credibility, not us, but only after fair and proper guidance. It is the absence of such guidance which has led us to the conclusion that the Appellant’s trial was unfair and thus the verdicts were unsafe.