P, R v

LORD JUSTICE MOORE-BICK: On 9 August 2010 in the Crown Court at Kingston-upon-Thames before HHJ Birts QC the appellant was convicted of assault occasioning actual bodily harm on what became count 1 of the indictment, and of common assault, contrary to section 39 of the Offences Against the Person Act 1861, on what had become count 4 of the indictment. On 30 September, he was sentenced to 12 months' imprisonment in respect of the assault occasioning actual bodily harm, with 14 days concurrent in respect of the common assault. He was acquitted by the jury of one charge of false imprisonment and one charge of making threats to kill. He was acquitted on the judge's direction of charges of harassment and theft following a submission of ‘No case to answer’.

He now appeals against conviction by leave of the single judge.

The charges all arose out of the volatile relationship between the appellant and his former wife, Karen. They met in 1992, married in 1995 and had two children together, Leonie, born in 1995 and therefore 16 at the time of the trial, and Jack, born in 1998, who was therefore 12 at the time of the trial. The complainant had another daughter, Keeley, who lived with the family at various times.

The complainant said that from the early days of their marriage the appellant began to drink excessively and became violent towards her. The offences charged in the indictment are said to have occurred in May 2008 and the first half of 2009, but she also gave evidence of earlier incidents which the prosecution relied upon as evidence of the appellant's propensity to be violent towards her.

In order to understand the particular issues that arise on this appeal it is necessary to summarise briefly the allegations relating to the counts in the indictment on which the appellant was convicted. We shall refer to the counts in the form the indictment took after it had been amended to exclude the original count 1, which related to events that occurred in 1995.

Count 1, a count of assault occasioning actual bodily harm, related to an incident that occurred in May 2008. The complainant said that she had been serving soup to the family in the dining room while the appellant was watching television in the living room. She said she took his soup to him before returning to the rest of the family. He got up and said, "Am I not good enough to eat with you lot?" and knocked two bowls of soup across the room. She said that at that point Leonie called him a bully, which made the appellant start to shout and swear. As Leonie went to call the police the appellant lunged towards her and the complainant jumped between them to protect her daughter. She said that the appellant then grabbed her by the hair and dragged her round the table, repeatedly banging her head against a radiator. She said that he pulled out some of her hair leaving bald patches.

The appellant admitted that there had been an altercation of that general kind, but he said that when he took his soup back into the dining room to join the rest of the family the complainant had started ranting at him. He admitted that he had banged his own bowl, throwing soup around, and that the row had then escalated. He said that he had spun around to speak back to the complainant. She stepped backwards, he stepped forwards and she fell over the back of her chair and grabbed hold of him. He said that he could not help falling over too and ended up on top of her on the floor. He denied having smashed her head on the radiator. He said she just hit it as she fell. He said that his hands were on her hair to stop him landing fully on top of her and she pulled her head away from the radiator.

Count 4, which was a charge of common assault, concerned an incident which occurred on Tooting Common in January 2009. The complainant said that she and the appellant had driven to the Common separately, the complainant arriving first. When the appellant arrived, he started shouting abusively at her. He then ran towards her and her group with clenched fists as if he was going to hit her. She said that she was frightened and threw herself onto the ground, putting up her arms and legs to protect herself. In the event, however, he did not touch her.

The appellant said that there had been a row about his leaving the family. He had taken Leonie to Tooting Common in his car and upon arrival had wanted to speak to the complainant about certain arrangements, but that she stormed off. He persisted and walked after her in order to speak to her. However, she said that she was not coming back to him and that the marriage was over. She then flung herself on the ground. He said he had not run towards her and that his fists had not been clenched. Other people who were there looked at her, he said, in disbelief. He asked her to get up and stop embarrassing him, but she claimed he had hit her. In fact he had not.

There were other and, in some cases, more serious charges in the indictment, but since the appellant was acquitted of them, we do not think it is necessary to take up time reciting what the complainant and the appellant said about them. The only question we have to decide is whether the convictions on counts 1 and 4 are unsafe. However, it is necessary to bear in mind that the allegations made in relation to those other counts, as well as other allegations of violence on other occasions, were potentially relevant to the jury's decision and therefore properly subject to cross-examination.

The grounds of appeal are, first, that the judge intervened during the complainant’ evidence and restricted the time allowed for her cross-examination in such a way as to prevent counsel from properly testing her evidence or putting the case for the defence. Second, the judge failed to consider the need for special measures to be in place to ensure that Jack could give reliable evidence. Third, the judge was openly to hostile to defence counsel in the presence of the jury and he to allow her a proper opportunity to cross-examine Jack. Finally, in his summing-up the judge failed to summarise the appellant's case properly and fairly and gave disproportionate time and attention to the Crown's case.

We have had the benefit of reading a transcript of part of the complainant's evidence. Without wishing to be disrespectful to her, it seems to us that she was a voluble and, to an extent, combative witness, certainly when counsel put the appellant's case to her. She was difficult to control and inclined to go into areas that were not relevant to matters the jury had to decide.

During cross-examination about the events covered by count 1 (that is the incident in which the appellant was said to have thrown the soup and banged her head on the radiator), the judge intervened on a few occasions in order to clarify her answers and to ensure that the jury were able to understand what her response was to the appellant's case. At that stage the judge did not inhibit the cross-examination either by the nature of his interventions or in any other way. It is clear, however, that he was becoming increasingly concerned about the amount of time that was being taken up by delving into matters that he considered had little or no relevance to the issues that the jury had to decide. At one point he said that cross-examination was taking far too long and would have to be completed by 3.30 that afternoon. At that point, counsel moved on from count 1 to consider the matters covered by count 4. Shortly after that, the judge gave the witness a break and the transcript that we have comes to an end.

Miss Furley submitted that by taking the line that he did the judge prevented her from testing Mrs P's evidence and seeking to challenge matters which had been introduced by the prosecution.

We think that the judge was entitled to keep a careful eye on the progress of the case, and to take reasonable steps to ensure that time was not wasted, but, in our view, he could and should have gone about it in a more temperate way. Counsel could perhaps have explained briefly why the matters she wanted to put to the witness were relevant, but she seemed to have been discouraged from doing so by the tone the judge had adopted in the earlier exchanges. That was unfortunate and, in our view, the matter could certainly have been handled better. Whether it was necessary for the judge to impose a limit on the time allowed for cross-examine may be debatable, but viewed overall we think that counsel did have a proper opportunity to cross-examine the witness fully in relation to both of the counts on the indictment on which the appellant was convicted.

In reaching that conclusion we have had the benefit of seeing the notes kept by prosecution counsel, which indicate that the judge did not in fact hold counsel to the deadline of half past 3 that afternoon, and suggests that the witness was fully cross-examined. We note, in addition, that counsel was able to put to Mrs P at least some of the text messages which she says tended to undermined part of the evidence she gave in relation to count 4.

We come next to Jack P's evidence. Jack had given his account in video-recorded form, as is customary for ABE evidence. It appears that until the last minute everyone expected the video to be played as his evidence-in-chief, and for him to be cross-examined over a live video-link. In the event, however, he expressed a clear wish to give evidence in court in the ordinary way. As a result, his evidence-in-chief was given by way of the video recording and he was cross-examined in the witness box in the usual way. There had been some brief discussion between counsel for the prosecution and the judge about the arrangements that were made and there is nothing to indicate that the defence had any significant reservations about what was proposed.

Miss Furley has submitted that the judge was wrong to allow Jack to give evidence in open court, but she also accepted that, apart from expressing some private disquiet to counsel for the prosecution, she made no objection and did not ask the judge to consider in any formal way whether it was appropriate for this young witness to give evidence in that manner. Before he gave his evidence, the judge explained to the jury why Jack was giving evidence in that way and how the matter would be handled.

Whether to allow a young witness to give evidence in open court is essentially a matter for the trial judge. Jack was certainly quite young to be cross-examined in an adult court, but the judge was well placed to decide whether he was sufficiently mature and confident to be able to do so satisfactorily. We can see no grounds for thinking that his initial decision to allow Jack to give evidence in that way was wrong.

However, Jack did eventually become distressed during the course of his cross-examination, and the judge had to give him a break in order to compose himself. Does that mean that his initial decision was wrong? We do not think so. Jack was able to give evidence about two incidents only – those covered by counts 1 and 4 in the indictment – so that his evidence could have been kept reasonably short. Again, having had the benefit of seeing prosecution counsel's notes, which include the period after the transcript we have ends, we are satisfied that after having had a break Jack was able to complete his evidence satisfactorily.

Before the jury left court, however, the judge expressed some strong views about the time being taken by the appellant's counsel over Jack's cross-examination. The judge was obviously concerned that the witness had become distressed, partly, in his view, because questioning had been going on for too long, and he made it very clear that he expected counsel for the defence to be much more succinct. The transcript of the exchanges, which at this stage took place in the presence of the distressed witness and the jury, makes unpleasant reading. The judge rejected a request from counsel to be allowed to address him in the absence of the jury, and then proceeded to criticise her approach to the cross-examination in round terms.

In our view, the judge addressed counsel in a wholly inappropriate manner. Once Jack became distressed, he should have allowed him a short break to compose himself, asked the jury to retire and then discussed with counsel the future course of his evidence in a calm and deliberate manner. If there were proper criticisms to be made, he was of course entitled to make them, but it was not appropriate to make them in discourteous terms in the presence of the jury and in a way that was unlikely to assist in furthering the progress of the case. Having said all that, the exchanges, although occupying several lines of the transcript, were in fact quite brief and, in our view, were not such as to undermine the safety of the convictions.

Our attention was then drawn to the transcript of another acrimonious exchange between the judge and counsel, which apparently arose as a result of a ruling by the judge that evidence called by the Crown in support of count 5 (that is, the charge of harassment) could be relied on by way of evidence of bad character in support of count 3 which charged threatening to kill. Counsel for the defence objected to that course being taken on the grounds that she had been discouraged from calling a witness, who could, if called, have given evidence of relevance to the harassment charge. As the exchange progressed, the judge became very critical of counsel's manner, saying she must learn not to interrupt the judge, that she needed to take some advice from an older practitioner, and suggesting that she must be at the outset of her career and therefore by implication inexperienced. He complained that she had been unresponsive to well intentioned guidance and a little later accused her of being insolent. Things got worse. Counsel said that the judge had cut one of the witnesses dead, a remark which he regarded as an insult.

In the event, the appellant was acquitted on both counts 3 and count 5, so the absence of the witness who might have been called turned out to be immaterial, and Miss Furley did not place any significant reliance on this exchange as far as the appeal is concerned. However, she did submit that it provided a good indication of the judge's general attitude towards her and towards the appellant's case.

This was undoubtedly a most unhappy episode, but fortunately it did not take place while the jury were in court. We are conscious that a transcript is a rather lifeless thing and certainly does not capture the tone of voice, facial expression or any gesture which may accompany the spoken word. The judge may have thought that he had grounds for expressing some displeasure and even for being critical of counsel. But even if he did, he expressed himself in what we can only regard as intemperate terms and failed to display what we consider to be an appropriate degree of courtesy towards counsel.

Finally we come to the summing-up. The appellant says that the judge failed to deal fairly with the appellant’s case, both in reminding the jury of his evidence and in reminding them of the way in which he put his case. We have to say that we can see nothing in that point. The judge chose to remind the jury of the evidence in a sequential manner, that is, by taking the evidence of each witness in turn. He dealt with the appellant's evidence and that of the witnesses he had called in the same way as he had dealt with the evidence of the prosecution witnesses. In addition, there were many occasions on which the judge referred to the defence case in the course of reminding the jury of the prosecution case.

Reading the summing up as a whole, we do not consider that there is any indication of partiality. Miss Furley submitted that the judge made no reference to important text messages that had a bearing upon Mrs P's credibility, but in the absence of any indication of what the messages are said to have contained, or of their significance in the context of the other evidence, we are in no position to accept that there is any great significance in the judge's failure to draw the jury's attention to them. The evidence of the appellant's daughter Leonie and Mrs P's daughter Keeley was, in our view, adequately, if briefly, summarised.

Ultimately we have to decide whether the convictions in this case are unsafe. In that context it is worth remembering that the jury acquitted the defendant of two charges, both of which were of a quite serious nature but on which there was little to corroborate the complainant's account. That suggests that the jury were not adversely influenced against the appellant by the manner in which the trial had been conducted.

Although the exchanges between the judge and counsel were, as we have said, unfortunate and should not have occurred, we are not persuaded that the trial was significantly mishandled or that the convictions are unsafe.

For those reasons the appeal must be dismissed.