W, R. v

The appellant in this case, W, then 58 years old, was convicted on 16 July 2009, at the Crown Court at Leeds before Her Honour Judge Kershaw and a jury, of the rape (count 1) and assault by penetration (count 2) of his step-daughter, when she was 14. We shall refer to her throughout as the complainant. We will refer to Mr W as the “appellant” but sometimes, where it is natural to do so, as the “step-father”. The convictions were by a majority of 10 to 2. The trial with which we are concerned was a retrial. At the first trial the jury could not agree on verdicts in respect of these allegations.

The complainant’s allegations were made first to her mother, the appellant’s wife, on 19 October 2007, towards the end of a lengthy conversation which had been initiated by the mother as a result of the appellant finding a text on the complainant’s mobile phone suggestive of a sexual relationship between the complainant and a boyfriend. The appellant was angry and had asked his wife to deal with it. The mother was therefore challenging her daughter’s behaviour. In the course of that conversation, the mother had told her daughter that she would have to go to live with her father, ie her natural father. At the end of the conversation, the complainant made an allegation that the appellant had touched her, in the stables, by putting his hand down her trousers.

Later that same day, the complainant was already being interviewed on video by a senior social worker for the purpose of a police investigation (the “video”). What the complainant then said in due course became her evidence in chief at the trial. During the interview the complainant made two allegations against the appellant. One was an allegation of rape, in the stables, “a few months ago”. He had stood behind her, put his hands down her trousers, fingered her, and then put his penis (his “willy”) down her trousers and up her. He stopped and she ran off. The second allegation was of something that had happened only two days earlier, on 17 October 2007, when she and the appellant had been alone on a settee in the living room of their house watching a film. He had “started to do it again”, had put his hand down her pyjama bottoms and had fingered her. She ran off to bed. In due course these allegations became counts 1 and 2 on the indictment.

At trial the question of the date of the alleged rape became an important issue for the defence. The indictment alleged that it had occurred between 8 July and 31 August 2007. 8 July 2007 was the complainant’s fourteenth birthday, and the prosecution did not suggest that the rape had occurred before the complainant turned fourteen. Although in the video the complainant had been quite vague at first about the timing of the rape (“about a few months ago”), with more questioning she was able to be increasingly precise: “maybe in like the beginning of August”…“It was on the weekend”…“It was a Sunday, I think”…“before we broke up [school]”. It was later established that the complainant’s last day of school before she broke up for the summer holidays was 20 July. The complainant accepted in cross-examination that it had certainly not taken place on her birthday, Sunday 8 July. That left only Sunday 15 July as a Sunday prior to breaking up at school. Therefore 15 July became the focus of particular attention on the part of the defence.

The complainant gave further details about the occasion of the rape. In her cross-examination evidence at trial she said that it had occurred at about 1pm. In her video she said that she had had a shower afterwards “cos I’d been riding my pony”, “and then my dad picked me up”, ie her natural father, and he had taken her to school the next morning “cos it was a Monday”. As for the appellant, he had been in his old jeans and a shirt, his “weekend” clothes. He “just drove off in his car”, going, she thought, to the pub, and leaving the complainant to be picked up by her father. As a result she had not spoken to the appellant about the rape. As the judge summed up her video evidence:

Another major issue at trial concerned the complainant’s motive. Inevitably, the question was raised as to what possible motive the complainant could have had for making allegations against her step-father, if they were false. The evidence from the appellant and his wife was that the relationship between appellant and complainant was on the whole a normal one. However, the complainant also said (in her video) that “I just don’t like living with him really” and that “he’s quite nasty”. Be that as it may, the text message found on the complainant’s phone caused a crisis of a kind. The complainant was aware that it was the appellant who had found the message. It was from an unknown friend and said “K [ie OK], I will, LOL [ie laugh out loud]. Ye, mine too. K a shag it is” (smiley face), LY [ie love you] X”. The inference was that the complainant was sexually active, and her mother put that to her, but she denied it (although at trial she accepted in cross-examination that the message read as an arrangement to have sexual intercourse). She would not say from whom the message was sent. The mother was worried that her daughter was pregnant and said so. She also said that she had had enough and that the complainant could go and live with her father. She had never said that to her before and was very angry. The complainant was crying hysterically. That was when she came out with her allegation.

In the circumstances, the defence suggested that her allegation was a reaction to the predicament she found herself faced with, and that she had no adequate explanation for the delay which had occurred (some three months or so) between the rape and the text-induced conversation with her mother. When she was asked to explain this delay she gave a variety of explanations. She said that she was scared and that it was hard to speak about such things. However, she also said that she had decided to act naughty, so that her mother would leave the appellant and “I’d be able to get away from him”. She had said that in her video, and again in cross-examination. On the other hand, she also said, at a different place in the video, that she did not know what to do because her mother was happy with her stepfather and she did not want her younger half-sister growing up without her parents being together.

The complainant was cross-examined about these two different explanations. It was suggested, both to her, and to the jury, that they were inconsistent. First, it was put to her that she had wanted her mother and stepfather to separate, which she confirmed:

Only after that had happened.

At first it was.

What the defence said were inconsistent explanations of her delay in speaking out about the rape was thus tied up with the defence’s suggestion of a possible motive for the allegations. It was to ensure that she could remain with her mother, when she was threatened with exile with her natural father, and/or to get away from the appellant.

In these circumstances, the defence was that the complainant was not telling the truth, and was not to be believed. There was no Sunday before the complainant broke up from school on which the rape could have taken place. The only possible candidate was Sunday 15 July, but on that afternoon there was a family party which the family attended (away from home) of which there are photographs showing the complainant together with the appellant in happy poses. The submission was that it was impossible to think that such an event had taken place within hours of a rape. In any event, the complainant had said nothing about going to a family party that day: on the contrary, she had said that after the rape her father had picked her up, whereas her step-father had gone off to the pub. She had seen neither her mother nor her step-father again that day. Moreover, her father could not have picked her up as she had said, for he was travelling back from a training course in Cardiff that day. Even if, for some reason the enquiry was stretched to Sundays beyond the break-up of school, there was, as it turned out, no other Sunday on which events could have occurred as the complainant had said they had, for a number of different reasons such as the complainant’s competing at horse shows, or her father being away in Turkey or suffering a motor-bike accident.

Moreover, the defence submitted that the complainant had a motive for telling lies, in response to her step-father’s discovery of the compromising text on her phone, and had given an inconsistent explanation for her delay in mentioning the rape to her mother – until a combination of anger and fear over the discovery of the text and being sent away from her mother to her father led to the allegations. It appears that at some point in his cross-examination, the appellant had described the complainant as a “vindictive liar”.

The defence also submitted that the rape could not have occurred as it was described by the complainant. She was wearing tight, elasticated, jodhpurs, into her hips, which she said had only been pulled down by a couple of inches. In such circumstances, the defence suggested that the complainant, who was a big man, could not have penetrated the complainant in a standing position from behind.

There was no medical evidence to support the allegations. The examining doctor, Dr Osman, found the complainant’s genitalia to be normal. His findings neither confirmed nor undermined the allegations, and he was “at pains to say that the upshot of his findings is neutrality” (to quote from the judge’s summing-up). However, the complainant had spoken to him of transient pain on urinating following the rape. This was not a medical finding but part of a history taken from the complainant herself. Dr Osman said that there were a number of causes of such pain, both innocent and consequential on penetration.

In response to the heavy emphasis which the defence placed upon the complainant’s account of the rape occurring on a Sunday during term-time, the prosecution’s response was to say that the rape could have occurred on any day of the week during the period mentioned in the indictment, which was “between the 8^th day of July 2007 and the 31^st day of August 2007”, whether before or after the end of the school term. The prosecution submitted that the complainant’s evidence about the dating of the rape was vague, eg “about a few months ago” and “It was a Sunday, I think”. Normally, the dates in an indictment are not material facts, but as a concession to the defence the prosecution was happy to stipulate that the rape must at least have occurred during the period mentioned in the indictment.

On behalf of the appellant, Mr Ian Peddie QC, who had not appeared at trial, relied on what was essentially a single ground of appeal, albeit it had several aspects to it: and that ground was that the judge had made material errors in her summing up, the effect of which were that she failed to sum up the main aspects of the defence in a way which fairly presented that defence to the jury. As a result the conviction on count one, the rape, was unsafe, and it necessarily followed that the conviction on count 2 was unsafe as well.

The most important aspect of this ground related to the defence’s case as to the dating of the rape. It was an essential plank of the defence that the rape could not have occurred on any Sunday as described by the complainant, and that the only real candidate for the relevant Sunday, namely 15 July, was an impossible date, and that therefore the complainant’s account for that reason alone had to be regarded as suspect. On this appeal, Mr McKone for the Crown conceded that there was no Sunday within the indictment period when the complainant could have been picked up by her father and taken to school the next day.

Mr Peddie’s complaint was that the material relating to the Sundays in July and August was presented in the summing up as if it was really part of the prosecution case, rather than the essential plank by which the defence sought to challenge the complainant’s credibility; that there was nothing to reflect the particular emphasis that the defence placed on 15 July as the only available Sunday prior to the break up of school; and that the judge gave the jury no guidance whatsoever as to how to regard the significance of the availability of a date consistent with the complainant’s account as bearing on the way in which they should regard the complainant’s evidence as a whole. Above all, Mr Peddie submits that the judge all but removed this essential part of the defence case by directing the jury that “It does not, however, matter if [the complainant] has got the day of the week wrong or if she has got the time of day wrong or if she has got it wrong about her seeing her father afterwards and being taken to school and so on and so forth.”

Thus the judge summed up the evidence and submissions about dates in the following three passages:

Secondly, at 49/50, where the judge had turned to the appellant’s evidence, she said this:

Finally, just before concluding the summing up by resuming the prosecution and defence cases, the judge said this:

Mr Peddie QC submits that even in the second of those passages, which represents the high water mark of the summing-up with respect to the date of the rape, the judge did not highlight Sunday 15 July as the only Sunday even in theory available before the break-up of school, but lost that date among the other dates canvassed; that the judge’s expression “many of those, if not all, can be accounted for” had an unhappy tendency to remove the force of what was really common ground; and that the hypothesis with which the judge began – “if we assume that [the complainant] is correct” – is hardly the appropriate way with which to introduce a point which challenges the complainant’s credibility. However, whatever might, even inadequately, have been achieved in putting the material on which the defence relied before the jury, was then removed in the third passage cited above in which the judge directed the jury that the total of the complainant’s circumstantial dating of the rape “does not matter”. Mr Peddie’s complaint is that the judge effectively there removed from the jury the defence’s primary point for challenging the complainant’s credibility. So far from explaining to the jury the possible significance of the defence being able to challenge the alleged circumstances of the rape as described by the complainant (in circumstances where the burden of proving her credibility lay on the prosecution), the judge appears to have directed the jury that these circumstances did not matter. Of course, what the judge intended to tell the jury was that, in law, the indictment would not be defective as long as the jury was sure that the alleged rape occurred at some time within the stated period; but, unfortunately, she expressed herself in such a way as in effect to remove from the jury the defence’s factual challenge to the credibility of the complainant’s account.

We consider that there is considerable force in this submission. On behalf of the Crown, Mr McKone went far to concede the relevance of this, while submitting that it did not affect the safety of the convictions. In our judgment this amounts to a material misdirection.

We go on to consider the way in which the judge dealt with motive. She approached it in this way. At page 31 of the summing up, after setting out evidence about the normality of the relationship between appellant and complainant, she dealt with the question of motive generally, outside the context of the text message, by saying:

Mr McKone was forced to accept that the judge’s summing-up was in this respect defective on the subject of motive. We accept Mr Peddie’s submission that this was another material error on the part of the judge.

Thirdly, Mr Peddie relied on the issue as to whether the complainant had given inconsistent explanations of her delay in reporting the fact of rape to her mother. This was also connected with motive, since the complainant’s explanations embraced whether or not she wanted her mother’s and step-father’s relationship to survive. The Crown’s submission about this aspect of the complainant’s evidence was that there was not an inconsistency, but a succession of emotional responses over time: at first the complainant had been silent because she did not want to destroy her half-sister’s family, but subsequently she had concluded that her own best interests lay in her freeing herself from her step-father.

That was, in our judgment, a possible way to understand the complainant’s evidence: and, in any event, there needs to be caution about expecting too much of a young girl’s possibly conflicting emotional response to a step-father’s abuse. However, the judge’s summing-up on this issue made the alleged inconsistency entirely disappear by suggesting that the complainant’s evidence had been concerned with her feelings about the family situation before and after the rape itself. Thus she said (at page 36):

Two further matters of complaint have contributed to our concern.

The first is the terms in which the judge concluded her summing up. After setting out the Crown’s case at some length (at pages 57/8), emphasising the description of pain on urination as though it was support for the complainant’s credibility independent of the complainant herself, she turned to the defence case, in these brief remarks:

The second matter relates to what happened after the jury retired.

After four hours of deliberation two jury notes requested the complainant’s video and the transcript of that video. The judge briefly remarked to counsel (there were no submissions) that the jury “are of course entitled to see the video”, but not the transcript, although she would remind them of anything in her evidence. The jury were brought in and the judge told them of that decision. The trial was then adjourned for five days, from 10 July to 15 July 2009, and the jury were sent home.

Normally, however, the practice is to refuse to replay the video of a child witness (it will at most be replayed in court, not in the jury’s retirement room) unless the jury indicate, when asked, that they wish to be reminded of how the evidence was given, as distinct from what was said. The following guidance is derived from R v. Rawlings; R v. Broadbent [1995] 2 Cr App R 222, as noted in Archbold, 2011, at para 4-423:

The judgment of this court in R v. Rawlings; R v. Broadbent was given by Lord Taylor CJ. In Rawlings, the appeal was dismissed, because the video replay had been necessitated by points made by the defendant in his evidence, about play-acting by the child, after the video had been first played and at a time when the jury would not necessarily have had such points in mind, and because the judge there had observed the three conditions for which the case is authority. In Broadbent, the appeal was allowed, because no reason was given or obvious for replaying the video, the video went into the jury’s room, and no warning was given.

Moreover, even where the judge refuses the jury a replaying of the video, but instead only reminds them of relevant evidence by reference to a transcript, it is none the less incumbent on the judge to warn the jury not to give disproportionate weight to the evidence because it is repeated after all the other evidence and to consider it in the context of all the evidence; further, the judge should remind the jury of the cross-examination, any pertinent re-examination and, where appropriate, of any relevant part of the defendant’s evidence: R v. McQuiston [1998] 1 Cr App R 139. In that case, the appeal was allowed: the judge disturbed the balance of his summing-up by giving a long verbatim recapitulation of the child’s evidence, by failing to give the appropriate warning, and by failing to remind the jury “of the other relevant evidence” (at 142).

That indicates, in our judgment, that whether the video is replayed or not, any repetition of the child’s evidence to the jury after retirement should be accompanied by the warning emphasised and required in both cases cited above, and that in addition, in order to achieve fairness and to support the warning given, the judge ought to remind the jury of the evidence given by the complainant outside the video itself and indeed, in order to maintain that fair balance, may also have to refer to other relevant parts of the defence evidence.

In the present case what happened was that the judge appears to have overlooked these necessary precautions. At the opening of her summing-up she had already told the jury that “If at any stage in your discussions it becomes evident that one or more of you would like to see part of it again, you have only to ask and that will be done. You will be brought back into court and such part of it as you want to see again, the whole of it if you wish, will be replayed” (at pages 6/7). It may possibly be that defence counsel at trial, Mr Duffy, had already indicated that he was relying on passages in the video as to the manner in which the complainant had given her evidence: but subject to that, and in any event, we think that the judge’s open invitation to the jury went beyond what should be done in such a case, and was likely to cramp the proper exercise of her discretion if there was a subsequent request for the video to be replayed.

In the event, there was such a request, and the judge’s immediate reaction on the Friday was that the request would be granted.

On the following Wednesday the video was replayed in full to the jury who were told by the judge that they could afterwards indicate by note whether they wanted to be reminded of any part of the complainant’s evidence. The video lasted about 75 minutes, and the judge had already read much of the transcript of the video into her summing-up.

After the jury had retired again after watching the video, Mr Dixon, who had not been trial counsel for the prosecution, but was covering for Mr McKone that day, raised his concern with the judge in the following terms:

Those remarks initiated a discussion which had probably not been foreshadowed before Mr Dixon spoke up, although defence counsel, Mr Duffy, then indicated that he had had it mind to say something. However, he seemed fairly relaxed about things. He said: “…as a surfeit of caution I think it is probably on balance best repeating the cross-examination”. The judge thanked Mr Dixon and recalled the jury. She asked them whether there was any part of the complainant’s evidence that they wished to hear again. She was told by the foreman that there was not. The judge then proceeded nevertheless to give them a version of the rest of her evidence. Mr Peddie submitted that this account lacked coherence, because it was not counter-pointed to the various issues which arose on the defence case. That is true, but then it was not intended to have that form. It was a second run-through of the complainant’s evidence at trial, for which the judge had not prepared in advance, and which arose on the spur of the moment as a result of Mr Dixon’s request. Thus, as for the issue regarding the dating of the rape, there was barely anything (“She talked about various dates during the summer and what had happened on them…”). Nothing was said about Sunday, 15 July as the only candidate for a Sunday before break-up of school. As for motive, arising out of the text message and its consequences, the judge said that she denied making her allegations because of what her mother had said to her, which was not how the matter had been dealt with first time round. As for the alleged inconsistencies of her explanation for her delay in telling her mother of the rape, the judge said “There was a time when I wanted them to stay together but not after this had happened”, which was to repeat, with perhaps greater emphasis still, her error first time round in making the possible inconsistency disappear by relating the complainant’s change in attitude to a period first before and then after the rape.

The full court which had given leave to appeal on limited grounds did not extend its leave to a complaint about the replaying of the video to the jury. As set out above, this appears to have happened without any objection on the part of the defence. We therefore do not take that into account. However, the guidance of R v. Rawlings; R v. Broadbent and of R v. McQuiston remains the background to this situation, and the permitted grounds of appeal did include a complaint that after the replaying of the video the judge had failed to remind the jury about the main thrust of the defence case. We consider that this ground of appeal is made good. The judge failed entirely to warn the jury that they should guard against giving the complainant’s evidence in chief, which they had just had replayed, disproportionate weight, and that they should bear well in mind the other evidence in the case. The judge also failed to remind the jury of even the bare outlines of the defence case, which in these circumstances was probably required in order to achieve a fair balance, since that could not simply be achieved by a second run-through of the complainant’s cross-examination and re-examination. The judge did not give any thought to these elements of the learning of the jurisprudence, because it was not brought to her attention. It cannot therefore be said that she had exercised an informed discretion about how to handle the situation. Although it may not be possible to generalise about what is necessary to achieve a fair balance in such situations, nevertheless the jurisprudence demonstrates that the achieving of a fair balance is what is necessary and, in particular in the absence of any warning, we do not consider that the judge came close to achieving that balance in this case.

Finally, we have asked ourselves whether the convictions are safe in these circumstances. We have concluded that they are not. We think that the first (the dating of the rape) and last (the second-run through) of the grounds considered above are of particular significance, but that all the points discussed above are not without their weight in undermining the safety of the conviction on count 1. Although the judge, at various points of her summing-up, had made the point to the jury that one or other of the protagonists was lying and that it was their job to decide whether they had been made sure that the complainant was telling the truth, nevertheless she gave the jury little help, and less help than was necessary, about how to approach determining the issues which had been raised by the defence. In circumstances where the two counts were cross-supportive of each other, we feel compelled to regard the conviction on count 2 as also unsafe.

We announced our decision to allow the appeal and quash the convictions at the time of the appeal hearing. These are our reasons for that decision.