ON APPEAL FROM Norwich Crown Court
His Honour Judge Downes
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE MOSES
MR JUSTICE CRANSTON
and
SIR CHRISTOPHER HOLLAND
Between :
JS | Appellant |
- and - | |
REGINA | Respondent |
Mr R H Christie QC (instructed by Messrs Holts) for the Appellant
Mr L Cox (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 27th-28th October 2008
Judgment
Sir Christopher Holland :
INTRODUCTION
JS is now aged 65. On the 3rd 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.
INDICTMENT
The 16 Counts fell into three sections. The first such section alleged offences against TB:
Count 1: between the 16th November 1979 and the 7th November 1980 indecent assault contrary to S. 14 Sexual Offences Act 1956, she then being under the age of 13 years, namely 7 years old.
Count 2: a like offence between the 6th November 1981 and the 7th November 1983, she then being between 9-11 years old.
Count 3: a like offence between the 6th November 1979 and the 7th November 1984 “on an occasion other than in Counts 1 and 2”, she then being between 7-12 years old.
Count 4: between the 6th November 1984 and the 7th November 1986, rape contrary to S. 1 (1) Sexual Offences Act 1956, she then being under the age of 16.
Count 5: a like offence between the 6th November 1985 and the 7th November 1987 “on an occasion other than in Count 4”, she then being under the age of 16.
Count 6: a like offence between the 6th November 1986 and the 7th November 1988 “on an occasion other than Counts 4 and 5”, she then being under the age of 16.
The Crown advanced these Counts as “specimen” but by the end of the evidence each such became based upon an incident spoken to by TB .
The second section alleged offences against Michelle.
Count 7: between the 11th June 1969 and the 12th June 1970 indecent assault, she being under the age of 13 years, namely 7 years old.
Count 8: a like offence between the 11th June 1969 and the 12th June 1975 “other than on the occasion in Count 7”, she then being between 7-12 years old.
Count 9: a like offence between the 11th June 1969 and the 12th June 1975 “other than on the occasion in Count 7”, she then being between 7-12 years old.
Count 10: a like offence during the same period “other than on an occasion in Count 7, 8 and 9”.
Count 11: a like offence between the 11th June 1969 and the 12th June 1976 “other than on an occasion in Counts 7,8,9 and 10”, she then being between 7-14 years old.
Count 12: a like offence between the 11th June 1980 and the 12th June 1981, she then being over the age of 16.
Again, the Crown advanced these Counts as “specimen”, save for Count 12. Again, the evidence served to base each such on a specific incident.
The final section alleged offences against S.
Count 13: between the 19th June 1969 and the 20th June 1970 indecent assault, she then being under the age of 13 years, namely 9 years old.
Count 14: a like offence between the 19th June 1969 and the 21st June 1974 “other than on an occasion in Count 13”, she then being between 9-11 years.
Count 15: a like offence between the 19th June and the 20th June 1974 “other than on an occasion in Counts 14 and 15”, she then being between 11-12 years.
Count 16: between the 20th June 1975 and the 19th June 1976, rape, she then being under the age of 16 years.
Counts 13, 14 and 15 were advanced as specimen but were similarly tied by the evidence to incidents spoken to by 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 11th June 1969 and the 7th November 1988, allotted as to
TB: 6th November 1979 to 7th November 1988.
Michelle: 11th June 1969 to 12th June 1976
and then 11th June 1980 – 12th June 1981
S: 19th June 1969 to 19th June 1976.
The jury was therefore concerned with offences allegedly committed between 37 and 18 years earlier.
THE COMPLAINANTS AND THEIR CIRCUMSTANCES
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 (7th 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.
THE PROSECUTION CASE
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,
Count 1. The Appellant had gone to the upstairs toilet. Her foster mother had asked her to take a toilet roll up to him. When she arrived at the toilet and opened the door the Appellant was urinating. He grabbed her, put his hand down her trousers, penetrated her with a finger and masturbated to ejaculation. She was aged 7. He threatened to kill her if she said anything.
Count 2. She had been told to sweep the stairs. As she was doing so he came up to her, held her down, lifted her skirt, penetrated her with his finger and masturbated to ejaculation.
Count 3. Her foster mother was out at the market and her foster father had fallen asleep. The Appellant took advantage of the situation to order her up to the toilet. There followed a similar offence with two finger penetration.
Count 4. Her foster father was doing some haircutting in the garden. She went upstairs to the airing cupboard to obtain a protective sheet. The Appellant followed her, put her down on the floor and pulled her trousers down. He then had unprotected sexual intercourse to ejaculation. He left her to clean herself whilst he took down the required sheet. She was aged 13.
Count 5. Another rape in the toilet in the course of which the doorbell sounded. This panicked the Appellant who broke off.
Count 6. The last act of rape with circumstances that were similar save that the Appellant held her throat forcefully and was generally rougher. She was aged 15. Subsequent events have some importance in the context of this appeal – we deal with them separately, later in this judgment.
Michelle founded the following Counts:
Count 7. An offence committed at the earlier address, B Road, at which access to the toilet was by way of the garden. When aged about 7 she was in the garden when the Appellant came and put his hand down her top and into her knickers.
Count 8. A similar offence made more significant to the complainant because it involved holding her by the throat and pushing her against a wall.
Counts 9 and 10. Two offences committed at Felixstowe in the course of a family holiday. Each involved putting a hand down the top of her swimming costume.
Count 12. When she was about 18 she accepted an early morning lift in the Appellant’s car. In the course of the journey he put his hand between her legs and made an indecent suggestion.
S founded the following Counts:
Counts 13, 14 and 15. Each was based upon an opportunity seized by the Appellant to put his hand in her knickers and penetrate her digitally. The first such occurred when she was about 9 years old.
Count 16. At B Road she was forced into the toilet by the Appellant who then penetrated her vaginally with his penis. Whilst intercourse was taking place there was a knock on the door. She said “Who is it?” The reply was “Ivan.” She said she would be out in a minute and the Appellant stopped what he was doing. In the house at the time was IH, one of her foster father’s friends, and she presumed that it was he who knocked.
An Addendum to the foregoing is necessary to sustain an aspect of this appeal. On the 10th 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 HISTORY
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:
1969-1976. Michelle claims to have reported the assaults to her mother without arousing particular interest.
c. 1980. Michelle told a then boyfriend, DG that a friend of her father, whom she did not name, had sexually assaulted her.
c. 1988. S tells her sister, A, of abuse some 18 years previously.
September 1986. Upon leaving home in acrimonious circumstances TB complains to a teacher, Mr S, and to Social Services of physical abuse by her foster father. She does not complain of sexual abuse by anyone.
1992. S told her husband, CL, that she had been abused, having been moved to do so by a chance visit made by the Appellant who got no further than the doorstep. This was a few weeks after her Mother’s funeral.
1993. S told a friend, SS, of abuse by a man called James who was a regular visitor. The above had taken place in the bedroom and bathroom.
2000. Michelle told her then boyfriend, MS, that she had been abused as a child.
2001. Michelle marries Mr S and refuses to allow the Appellant to attend the wedding. Thereafter, per Mr S “TB and S have visited our house on a number of occasions when matters have been discussed.” Michelle says she learned of abuse to S from A.
6th February 2001. S tells her G.P., Dr Ward, that she was sexually abused. He refers her for counselling. At some stage S set out in a letter what had happened to her. The letter was subsequently destroyed, unread by anyone else.
October 2002. K, S’s brother, says that TB “disclosed to me the full details of the abuse that she had suffered as a young child at the hands of JS. TB told me that she wanted the men (sic) exposed.” K wrote to the Appellant and his brother asking to meet to discuss the allegations. There was no response.
2002. At some stage the sisters meet in distress to discuss experiences, supported by drinking vodka.
17th March 2003. In the course of a visit to a Police Station about another unrelated matter K alleges abuse of those he regarded as his sisters. He is asked to encourage the making of a formal complaint.
September 2005. The video interviews.
Before parting from this history it seems to this Court that for the purposes of the jury the following is apparent:
(a) Leave aside Michelle’s recollected complaint to her mother, no complainant made any contemporaneous complaint, not even inter se or to other potentially vulnerable siblings – a matter of concern to TB as the youngest as appears from her interview.
(b) With reference to the complaints of sexual abuse that came to be made there is no significant discernable variation over time.
(c)The evidence of Mr S raises concerns as to collaboration reflected in a number of meetings at his house.
THE DEFENCE
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.
THIS APPEAL
By way of his perfected grounds, Mr Christie raises various points, in summary under three heads:
(a) Abuse of process: An application should have been made to the trial judge to stay for an abuse of process having regard to the delay and the consequent impact upon the fairness of the trial. Whether or not successful, any such application would have served fully to apprise the Court of the chronology and of the resultant problems in terms of impaired recollection, missing witnesses and lost records.
(b) Failings on the part of both solicitors and counsel in the conduct of the defence allegedly so as to impair it.
(c)The Summing Up – serious defects in its terms served to deprive the jury of direction and guidance that were imperative in the circumstances of this case.
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:
(a) Abuse of process: we make no comment save to accept the submission that had a fully researched application been made then, at the least, the Court would have had the material wherewith to make various decisions, in particular as to the guidance for the jury.
(b) Professional Incompetence. There are matters open to adverse comment – particularly a belated change of defence counsel shortly before trial – but we have discerned nothing which has arguably had an impact upon the safety of the verdicts.
(c) Summing Up. We are reluctantly satisfied that this was inadequate in that it did not give to the jury such direction and guidance as were essential if the verdicts were to be transparently safe.
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.
THE SUMMING UP
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) 19th 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) 30th 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:
(a) At no stage did the judge draw the jury’s attention to the potential impact of delay upon the burden and standard of proof. It is rigorous attention to the latter that ultimately secures a trial that is fair: it is for the Prosecution to surmount the impact of delay upon the cogency of the evidence.
(b) In the passage cited from 19F the judge effectively downplayed the burden and standard of proof. Confronted by “discrepancies” in the Prosecution evidence the jury was seemingly only to regard such discrepancies as having an impact upon the strength of the Prosecution case if there was no reasonable explanation: a warning that all witnesses might have recollection difficulties due to the delays was obviously justifiable but only in the context of the burden and standard of proof. Further, it is unfortunate that the passage is almost entirely about the potential evidential problem of the complainants: the reference to the Appellant is cursory and there is no specific reference to his witnesses.
(c) Turning to the passage starting at 28B we have two comments. First, in dealing with explanations for the delay the judge did not pick up from the Specimen Directions the potential for a reference to the conduct of the Appellant. It was surely germane to point out that this was not a case in which silence had been maintained by way of ongoing threats. On the evidence after 1988 he had made one abortive approach to S’s home in the aftermath of her mother’s funeral and that was it. Second, it is unfortunate that his reading of the Specimen Direction stopped short of its last sentence,, “Even if you believe that the delay in this case is understandable, if you decide that because of this the Defendant has been placed at a real disadvantage in putting forward his case, take that into account in his favour when deciding if the Prosecution have made you sure of his guilt.” The burden of proof point was there and it was not taken up.
(d) The final paragraph starting at 29F cannot be justified. The problem with increasing familiarity with and acceptance of historic sex abuse cases is that there is a temptation to become blasé about the passage of time. It is worth pausing a moment to reflect upon the significance of the early complaints of offending against S and Michelle: they dated back to 1969 before TB was born and, for that matter, before the introduction of decimalisation. The timescale is huge and the conduct of the defence must have difficulties, and arguably the less obvious the more dangerous. Further, even allowing for a standard of preparation and presentation that could not have matched that which has been deployed before us, it is difficult to believe that enquiries would not have served to identify a list of concerns more specific and cogent than the loss of “some sort of documentary evidence”. Indeed, as we point out in the next paragraph, a clear example of potential prejudice had emerged in the course of the evidence. Overall we cannot justify a final paragraph that effectively denigrates the potential impact of delay – the reverse was needed.
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.
GENERALLY
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.