N(H) v R.

We informed the parties at the hearing of this appeal on 9 March 2011 that we would dismiss the appeal. These are our reasons.

This is an appeal against conviction with the leave of the full court. The identity of the complainants is protected by section 1 Sexual Offences (Amendment) Act 1992. No matter shall be published which might lead to their identification. The title to this judgment will be N(H).

We shall refer to the complainants respectively as S, A and L. S and L are half-sisters. S lived with their mother, whom we shall call D. L lived a short distance away with her grandparents. Having commenced a relationship with D some months before, the appellant moved in with D and S in April 2005. S had a friend, A, who would visit S at their home.

The appellant was charged in an indictment containing 7 counts as follows:

Following a trial before His Honour Judge Dutton and jury at Chester Crown Court the appellant was, on 17 November 2009, unanimously convicted upon counts 3 and 5 of the indictment. On the following day, 18 November 2009, the appellant was unanimously convicted upon count 4; he was further convicted upon counts 1 and 2 by a majority of 10:2, and convicted upon count 6 by a majority of 11:1. The jury could not agree upon a verdict in respect of count 7 and they were discharged.

The appellant has leave to advance two grounds of appeal:

The evidence was that S enjoyed having her feet massaged and her back rubbed by her Nan. D, her mother, was not keen to massage S’s feet. The appellant took her place and on occasions delivered massages to S’s feet and back in respect of which no complaint is made. As S explained in her ABE interview, there were, however, occasions when the appellant used the opportunity to touch S in a sexually indecent manner. The first incident (count 1) occurred in 2005 when S was aged 11 or 12. S would visit the bedroom which the appellant shared with her mother to watch her television. She was lying on the bed wearing pyjamas when the appellant came into the room and offered to massage her back. He used cream on her back, feet and legs for about 5 minutes. He moved his hands to her front inside her bra and touched her breasts. He placed his hands inside her knickers and touched her bottom and vagina. The officers established that S was not saying that the appellant inserted his finger into her vagina but that he had touched her labia. S said she felt awkward, “freaked out” and shocked. She did not know what to say. When he finished she got up and walked out of the room. The appellant later behaved towards her as though nothing had happened. She did not tell her mother. Her mother and the appellant appeared to be happy together. S said she did not know what to do.

The second occasion (count 2) took place about 4 months later, again in D’s bedroom. The appellant began massaging S’s feet with cream. He moved his hands up her legs and touched her bottom. He did not on this occasion touch her vagina. She just lay there. He stopped and she got up.

On the third occasion (count 3) S believed she was in her mother’s bedroom lying on her front in a pair of shorts and knickers. The appellant massaged her legs and asked her whether it tickled. She responded that it did. He moved his hands further up her leg and repeated the question. He moved his hands to her front inside her knickers and touched her vagina. He asked whether it was nice. He told her not to tell her mother otherwise she would want a massage as well.

On the fourth occasion (count 4) S, her mother and the appellant were in Poland as guests at their hosts’ wedding. S was provided with an upstairs room. In the early morning she came downstairs and lay on the floor in her mother’s room on her mother’s side of the bed. D had left the room for some purpose. While S was half asleep the appellant lent over the side of the bed and placed his hand beneath S’s pyjama top and bra. She rolled on to her front in order to stop him. He then placed his hand inside her knickers and touched her bottom and vagina. She got up and told him never to touch her again. He said nothing and went to the living room. S said that she went into the bathroom and cried. No-body saw her crying. When she came out the appellant was sitting on the sofa looking glum.

Finally, in April 2008 (count 5), S said that her mother had gone upstairs to bed leaving herself and the appellant downstairs watching television. He asked S if she wanted a foot massage. She agreed. He went upstairs and collected some cream. She thought it was hemp cream from the Body Shop. He turned S over on the sofa so she was on her tummy, and removed her trousers. He massaged her legs and then pulled her knickers down. He massaged her bottom and her vagina. While doing this he stopped, left the room and came back with a different cream. S had put her mother’s pyjama bottoms on. The appellant resumed after removing her pyjama trousers. S got up and said to him “Don’t you dare do that ever again”. S walked off crying. She went to her loft room. Her mother heard her and went to ask her what was wrong. S replied “Ask Harry”. The appellant came to the landing. D asked the appellant what had happened. He said, “I gave her a massage and I don’t think she liked it”. Her mother again asked S what was wrong. She replied, “He gave me a massage and went too far”. Her mother insisted, “You’ve got to tell me”. S said that she was too upset to say anything more to her mother. On reflection S thought that her mother had not really understood what had happened.

S’s mother gave evidence relevant to this incident. She said that S did have a problem with hard skin on her feet. She herself did not enjoy massaging S’s feet. She knew that the appellant gave her foot massages. On the latest occasion referred to by S, D recalled going upstairs to her bedroom leaving S and the appellant together. She had understood that the appellant was going to give S a foot massage. She recalled that after about half an hour the appellant came upstairs and then returned downstairs. A few minutes later S came upstairs. She heard noises and went to S’s room. She found S sitting on the floor with her arms around her knees, crying. The judge summarised D’s evidence as to what happened next as follows:

“I asked her if she was alright, “What’s it all about?” She didn’t really answer, she mumbled. I tried again. She was wearing my pyjama bottoms by then. They had come from the utility room perhaps or the bedroom but she had not been in to get them. I asked where she had got them from. She said Harry had given them to her. She did not say very much. She said he’d massage her and she pointed to the top of her legs. Harry had said he couldn’t massage her if he didn’t remove her jeans. I didn’t know what was happening. He came upstairs then asking if she was alright. I said, “I don’t know what’s gone on”. He said that he’d massaged her and perhaps he had rubbed her too hard. I told him he should have given an appropriate massage. He said he would never hurt her. It was just a massage, but he was very upset. I was very upset. I don’t know what I thought. I know now. I stayed in the loft with S all night because she was so upset. In the morning I got up. He left a note saying sorry that he would never do anything to hurt us as he loved us both. He wanted to talk to me and that was April 2008. Our relationship finished at the beginning of July.”

The judge reminded the jury in his summing up that the mother had not mentioned in her witness statement that S had pointed to the top of her legs, nor had she mentioned a conversation about the removal of S’s jeans, nor that S told her that Harry had given her the pyjamas. D had responded that she had said these things on the day when she made her statement. They must have been left out. She explained in evidence that at the time she did not know what to think, but “it” had worried her.

The appellant, when he gave evidence, agreed that he massaged S’s feet, legs and shoulders. He denied that he had ever touched S sexually and had never removed her trousers. On the occasion in Poland he had been tickling S, poking her and trying to make her get up. There was nothing sexual in it. He said S became annoyed and upset. Similarly, he said that on the occasion in April 2008 he was rubbing her feet and legs. S did change into her mother’s pyjamas. She got upset and angry when he tickled and aggravated her but he had only tickled her legs, nowhere near her private parts. He said that at one stage he got up, but that was to go to the toilet. Later, when S was upset, he had apologised for being too rough. S was telling a pack of lies. In his interview under caution the appellant had said that he might have “helped” S remove her jeans. In evidence he said that was wrong. He had not.

The appellant therefore accepted that there were two specific occasions upon which the appellant had been touching S when the manner of his touching had caused S to become upset. The question for the jury was whether S became upset because the appellant was too rough or because his touching was sexual.

As to count 6 A gave evidence that on one occasion she was sleeping at S’s house. In the morning she awoke before S and the appellant asked her from the bedroom to make him a cup of coffee. A went downstairs and returned with the coffee. She used the en-suite bathroom to go to the toilet. When she came out the appellant suggested that she watch television with him. She agreed and climbed onto the bed. The appellant said, “If you lie on your stomach, I will give you a back massage”. A, knowing that he gave S foot massages, thought that would be all right so she said “Yes”. As he was massaging her back the appellant moved his hand down and massaged her bottom. A said that she tried to keep calm. When the appellant asked her to take her top off the better to massage her she replied, “I’m going to see if [S] is awake” and she left the room. S woke up about 5 minutes later but A did not mention to her the events in the bedroom. She had thought later of asking S what she really thought of the appellant but had never plucked up the courage to do so. It was her family. The appellant gave evidence that no such incident occurred. A was lying.

As to count 7, L was a young mother who, at the time of the incident she described, had 2 children. In about March 2008, two weeks after her youngest was born, the appellant asked her to go to a rugby match with him. The weather was poor so instead of watching the match they went to a bar and spent the afternoon and evening drinking. L said she did not have much to drink but the appellant did. When they returned to her grandparents’ house at about 10 – 10.30 pm her grandmother was still up, babysitting in the living room. The appellant was offered a bed for the night but he declined. He would sleep downstairs for a while until leaving in the morning. When her grandmother went to bed L also stayed downstairs so as not to disturb the baby. She and the appellant were left in the room with the baby. L said she went to sleep on the sofa. Later she awoke to find that the appellant was fondling her vagina. Her jeans and knickers had been pulled below her knees. When she got up from the sofa the appellant said, “Let me give you the best orgasm of your life”. She said she was stressed, but did not want to make a fuss with her grandparents sleeping upstairs. She sat separately from the appellant and began texting her friend Jonathan. She then spoke on the phone to him and eventually the appellant got up and left at about 4 am. By the date of the police investigation her texts to Jonathan had been deleted but his texts to her had survived. Those texts were consistent with Jonathan’s evidence that L was telling him that the appellant had “tried it on” with her. The appellant said that no indecent touching had taken place. He accepted from the phone records that L must have been texting Jonathan while he was in the room. He could not explain the contents of Jonathan’s texts to L. In particular, nothing had happened, he said, which might explain the written response by Jonathan to a text written by L, “Oh shit, that ain’t good”. On the contrary, L had, the appellant said, slept with her head in his lap.

These matters came to light after the appellant and S’s mother separated in July 2008. The appellant had received messages from another woman which D said she could not tolerate and she asked him to leave. S rang her sister to give her the news. L told S that she had never really liked the appellant anyway. S replied that she had not liked him either. When S gave evidence she said she had asked L whether that was because she thought the appellant was a pervert. L replied “yes”, and told S about the night of the rugby match. L asked what the appellant had done to S. S replied that he had “done stuff” but she did not go into detail. She told L that her mother was aware of it but she had not really understood what had happened. L suggested that the best person to speak to was their Uncle Colin, their mother’s brother. L’s account of the conversation was similar to that of S. She too said that S had not gone into detail although L had told S what had happened to her. As L put it, S said he had done the same sort of thing to her. L agreed that she had suggested speaking to Uncle Colin.

L did speak to Uncle Colin. She told him that she could not speak to her mother about it. L picked S up from school. Her mother phoned. Colin came to collect S and took her home. There was a meeting between S, her mother, Colin and the appellant. S said that the appellant was annoying and “a dickhead” but at that stage she made no complaint of sexual misconduct. S and her Uncle Colin went out in the car and he asked S whether anything had happened that should not have happened. S said that it had but again did not go into detail. She told Colin that she had been too embarrassed to talk about it in front of her mother. Colin discussed the situation with S’s mother and they decided to call the police. S’s mother gave evidence that, following the meeting, she had met the appellant hoping that he would tell her the truth. He mentioned Poland but D could not remember in what context. He told D that he couldn’t live without them. There could be no reconciliation, so they parted.

As to the involvement of A in the investigation, both S and A gave evidence that S contacted A on 2 September 2008 to tell her that the police might visit her to ask questions about “Harry”. They had already visited another of S’s friends. At first S would not tell A what the enquiry was about. Eventually she said that the appellant had touched her sexually and she asked A whether he had ever done anything to her. A replied that he had touched her bum. She did not go into further detail. A was interviewed for an ABE recording on the following day, 3 September 2008.

Mr Barlow’s cross examination of S is relevant to ground 1 of his appeal. We have been provided with transcripts of his cross-examination. Mr Barlow put to S that she had not telephoned her sister L with the intention of informing her of the appellant’s conduct towards her. She agreed that she had telephoned to tell her sister that Harry and her mum had split up. At the time of the call L was staying with her father in Gloucestershire. She agreed that L had informed her of the appellant’s sexual touching first. She said that for a moment she was not going to tell L what had happened to her, but then changed her mind. Still, she had not given details. She agreed that she had not given her Uncle Colin any details either. It was only after the police were called that S gave detailed information. The police lady who interviewed her was the first and only person to whom she had given the details of the allegations. Of her conversation with A by telephone, S accepted that she had telephoned A the day before A was interviewed by the police. A wanted to know why the police would be coming to see her and S revealed it was something to do with Harry. She said something like, “He touched me” or, “He’s sexually abused me”. S continued that she had asked A whether Harry had ever done anything to her and A replied, “No”. Eventually A said that Harry had touched her bum. S responded that she had better tell the police about it. On no other occasion had she discussed these matters with A.

At the end of his cross-examination of S Mr Barlow asked questions about S’s knowledge that her mother was concerned about the financial implications of the separation between the appellant and D. The appellant had spent some thousands of pounds in building work on the house. S agreed that her mother probably had been worried about her financial obligation to the appellant but she said that she was not really aware of the details. She had told A at one stage that it was possible they might have to move out of the house. The learned judge intervened to require Mr Barlow to put explicitly to the witness any motive which it was suggested S may have for telling lies about the appellant. Mr Barlow asked:

“Now is there a possibility ... that you have said these things about Harry ... which are false because you think it will help your mum about keeping the house?”

S replied:

“That’s just disgusting.”

The suggestion was put again and it was again denied.

Mr Barlow put to A in cross-examination that she had made up the incident she described in order to support her best friend. She denied it. A said that S had informed her of her mother’s money problems but only as an explanation why her mother had done nothing about her complaint in respect of count 5. A denied that she had ever discussed these matters further with S, or at all with L.

When L gave evidence she denied having spoken to A about the complaints. S and A had stayed with her in Crewe, but that was a long time before the complaints came to light. S and A had stayed at L’s new home about a month before the trial. There had been no talk about the court case, except that L had asked S whether she felt alright. The only time the appellant’s behaviour had been discussed between S and L was on the telephone. L robustly denied the suggestion that she had given evidence simply to support her sister.

We turn to the first of Mr Barlow’s grounds of appeal. He submits that the jury should have received an explicit warning as to the risk of both collusion and innocent contamination between the witnesses as a consequence of their admitted telephone contact before they were interviewed by the police. Mr Barlow accepted that the appellant’s case at trial was that the witnesses had lied, not that there may have been some innocent transference of information which had become embedded by repetition. There was a discussion between counsel and the judge before speeches as to the legal directions which would be appropriate in the circumstances. The full court ordered, and we have seen, a transcript of the discussion. Mr Barlow accepts that he made no request to the judge to consider giving directions about the risks of collusion and/or contamination. Mr Mills, for the respondent, explained that there was a very good reason for this. During the prosecution case Mr Mills had made it clear to Mr Barlow and the judge that he did not intend to submit that the evidence of one complainant could support the evidence of another. It was, thus, perfectly clear by the close of the evidence that the issue for the jury was the credibility of each of the witnesses who, it was alleged by the defendant, had put their heads together to make false accusations. Mr Barlow frankly conceded that he had not been suggesting that the familiarity of one complainant with the complaint of another may innocently have affected the evidence of either or both. The defence accusation was that L and S had, either individually or jointly, concocted false evidence and that S had afterwards involved A in a similar concoction.

Nevertheless, Mr Barlow submitted to the Court that the risks of collusion and contamination had been sufficiently raised in the course of the evidence to require a direction about them from the learned judge. He relied upon two decisions of this court, Paul W [2003] EWCA Crim 2168 and Lamb [2007] EWCA Crim 1766.

In Paul W the appellant had been charged in an indictment containing counts that fell into two separate categories. The first concerned sexual offences allegedly committed against the complainant MH in 1989 and 1990. The second concerned sexual offences allegedly committed against BTbetween 1998 and 2001. There was therefore a gap of not fewer than nine years between the two groups of allegations. The Court (Laws LJ, Mitting J, and HHJ Rivlin QC) held, with some hesitation, that the judge was entitled to rule that the two groups of offences could legitimately be joined in the same indictment under the indictment rules. Commencing at paragraph 15, however, Laws LJ said:

“15.

The real question in the case, as we perceive it, is whether it was proper for the judge at either of the stages at which he considered the matter to hold that the two sets of accusations could be tried together without injustice. As to this we consider that the first issue is whether the evidence on one set was admissible in proof of the other. On this, as we have already indicated, the judge’s first ruling was confused. He seems to have held that the jury might consider the existence of both allegations to be too much of a coincidence but yet held that he must direct them to try the two matters totally separately. At the end, however, in the summing up he very firmly directed the jury that the two sets of allegations had to be separately considered...

16.

In our view, unless the two sets of accusations were properly capable of supporting each other as a matter of evidence, the judge should have severed them...”

The court had concluded that the interval of time between the two sets of allegations was so substantial that unless the evidence was cross-admissible the effect of a joint trial was bound on the facts of the case to be unduly prejudicial to the accused.

On appeal, the prosecution argued that, notwithstanding the judge’s directions to the jury to the contrary, the evidence given in respect of each set of offences was admissible in support of proof of the other under the principle explained by the House of Lords in DPP v P [1991] AC 447. At paragraph 20 Laws LJ continued:

“20.

We have been greatly concerned as to the overall picture here, and the form of the summing up. The mutual admissibility of the evidence on each set of allegations in proof of the other is in this case at the margin. Had the case been treated as one to which DPP v P applied there would at least have been the safeguards of appropriate directions as to how the jury should treat the relationship between the two sets of evidence, including a direction as to the risk of collaboration or innocent contamination. As we have said, absent legitimate mutual evidential support between the charges, these offences should not have been tried together. The risk of the jury’s view of one set of counts affecting their view on the other was very real. Indeed we consider that even if this were not a DPP v P case, the defence was at least entitled to a direction in relation to innocent contamination concerning the BT charges, having regard to the defence of accident put forward in relation to them and the possibility that BT knew something of the MH case when he first described what he said had happened to him.”

It is clear that the court’s concern was centred upon the decision to permit a joint trial of the two sets of offences and the prejudice which accompanied that decision. The court was not saying that in every case in which there is more than one complainant a direction as to collusion and/or contamination is necessary. At paragraph 20 Laws LJ, however, expressed the view that on the particular facts of the case, whether or not the evidence of one set of counts had been admissible in support of the other, the risk of innocent contamination revealed by the evidence should have been drawn to the attention of the jury.

In Lamb, a post-2003 Act case,the trial judge did permit the jury to consider whether the evidence of one complainant would assist them to a conclusion as to the truth of the evidence of the other. The judge directed the jury that before they could treat the evidence in that way they must be sure that the danger of collusion, that is, putting heads together to make up false allegations, had been eliminated. At paragraph 46, Dyson LJ (as he then was) said:

“46.

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

Furthermore, the appellant complained that in drawing attention to similarities between the allegations respectively made, the judge had failed to point out the differences. Dissimilarities would weaken the argument for the prosecution that it was unlikely that two similar but independent allegations were explicable as mere coincidence. At paragraph 56 Dyson LJ drew attention to the fact that a judge was required, when evidence of bad character had been admitted under section 101(1)(c)-(g) Criminal Justice Act 2003, to consider the risk of contamination under section 107 (discharge of jury or acquittal of defendant). While in Lamb’s appeal the court was not suggesting that the evidence should not have been left to the jury, it was important that if it was, they should receive appropriate directions as to the reliability of the evidence, tailored to meet the requirements of the evidence as it had emerged. Dyson LJ concluded at paragraph 57:

“57.

In our judgment, therefore, the judge’s failure to warn the jury about the danger of innocent contamination was a material misdirection, which went to the heart of this case. We do not suggest that the judge was wrong not to have stopped the case itself, something that was never suggested, but we do think that in the circumstances the jury’s verdicts are as a result of the judge’s misdirection themselves unsafe...”

Both the judgments of the Court on which Mr Barlow now relies were commenting, primarily, but in Paul W not exclusively, upon the requirements for directing the jury when the jury is permitted to consider whether the evidence of one complainant provides support for the other, one example of what is now commonly called “cross-admissibility”: see, further, DM [2008] EWCA Crim 1544, Wallace [2008] 1 WLR 572, [2007] EWCA 1760 and Freeman and Crawford [[2009] 1 Cr App R 11, [2008] EWCA Crim 1863.

“Cross-admissibility”

The admissibility of the evidence of one complainant to support the evidence of another is governed by the bad character provisions of the Criminal Justice Act 2003. Section 112(2) of the 2003 Act provides:

“(2)

Where a defendant is charged with two or more offences in the same proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.”

The effect of this provision is to require the prosecution to satisfy one of the relevant section 101 “gateways” before the judge will permit the evidence adduced in proof of one count (if amounting to misconduct) to be used as evidence to support a separate allegation made in another count in the same indictment.

In the case of the evidence of multiple complainants, the prosecution will usually be seeking the admission of such evidence under section 101(1)(d) because “it is relevant to an important matter in issue between the defendant and the prosecution”. It is necessary to recall that evidence may be “cross-admissible” between counts in the indictment for two possible reasons, either:

Mr Mills points out that the present case raised no issue of cross admissibility for the jury to consider because the judge was expressly invited by the prosecution to treat each count as a separate allegation whose proof depended upon the evidence of the complainant relevant to it. The judge’s direction to give separate consideration to each count and each complainant is at page 11 of the transcript of his summing up:

“You need to look at each of these allegations quite separately. Look one by one at the allegations that [S] makes about what happened to her. Your verdicts don’t necessarily need to be the same. They may be the same. They may be the same in one direction, they may be the same in another direction, they may be a mixture of verdicts. That’s entirely for you to decide and it’s important that you look individually at each charge on the indictment, looking at each separate allegation that [S] makes, for example, looking at them separately [from] the allegation that [A] made and then, lastly, separately at the allegation that [L] makes. It is matter for you to decide on the evidence whether the matters or any of them are proved.”

At page 13G the judge said:

“This case, like most cases where sexual allegations are made, it really does depend on the word of a young person who is making the allegation against the defendant ... it is always in private and it’s usually only two people together, and juries up and down the country are having to look at cases, not I am sure dissimilar to this one, to decide as far as this girl’s allegation is concerned, is she telling the truth about it and, if you are sure she is, then you convict. It is very rare that there will be any other supporting evidence in cases of this kind but we will look at the evidence and see if there is anything which might help you in due course.”

The only evidence to which the judge referred which might have provided some support for the complainant under consideration was her complaint. As the judge put it at page 16D:

“... what was told to the other person is what the alleged victim is saying. It’s not some extra evidence and extra support, it is still her account as has been given in court but it is all part of the evidence. If those things were said to another person then it is part of the evidence and it does indicate, does it not, that at the very least whenever that conversation took place then at that time the young person was making a complaint that she had been interfered with sexually, not something that was alleged yesterday. It was being alleged at the time that the conversation was taking place. It’s not independent support but it is all part of the evidence in the case for you to consider”.

The judge followed his directions as to separate consideration of each of the complainants in the scheme of his summing up. At the outset he presented the issue for the jury in stark terms (commencing at page 4B):

“... you have to decide this case, to judge the witnesses, to decide whether in each case what they say is true or whether for some reason it may just be a complete tissue of lies. You judge the case on all the evidence. What they say about what happened, what they told others about what happened is all part of the evidence for you to consider. You may find some importance and significance in the circumstances. For example, what was it that had happened to [S] for her mother to find her on that occasion in April sitting on her bedroom floor with her legs drawn up to her sobbing, apparently uncontrollably? What was it about what had happened to [S] that evening that caused her mother to spend the whole night with [S] in [her] bedroom? Might it be that she was annoyed because Harry was being silly with her or was there something more serious than that? ... Has this case been about real experiences in the hands of [N] or is it, or might it be just some complete malicious fabrication on the part of these witnesses for whatever reason that might be? You have to decide.”

In the course of his summing up the judge reminded the jury of each complainant’s response to the suggestion that she was lying. At page 14G the judge placed the defence squarely before the jury:

“You’re entitled to consider why these matters didn’t come to light at the time that the events occurred in relation to [S] and [A] particularly if they are true. The defence say that their complaints are lies, or made up at some later time for some reason, fabrication for whatever motive, with [A] telling lies about herself in a way it is suggested to support her close friend [S]. Had what they said been true, it is said by the defence you would have expected a complaint to have been made much sooner than it was.”

The risk of contamination of evidence in consequence of conversations between witnesses, or knowledge by some other means by one witness of the complaint of another, arose in sharper focus at the time when similar fact evidence was capable of providing “corroboration” of (i.e. independent support for) the evidence of a complainant making an allegation of a sexual offence. Since the enactment of sections 32 and 33 Criminal Justice and Public Order Act 1994 corroboration of the evidence of a witness alleging a sexual offence has not been required.

The issue of principle considered by the House of Lords in H [1995] 2 AC 596 was whether “similar fact” evidence should have been excluded by the trial judge in the presence of a risk of contamination, or, the evidence could properly have been left to the jury to evaluate with suitable directions from the judge. At page 612 of H Lord MacKay of Clashfern LC said:

“... where ... the question of collusion has been raised, the judge must clearly draw the importance of collusion to the attention of the jury and leave it to them to decide whether, notwithstanding such evidence of collusion as may have been put before them, they are satisfied that the evidence can be relied upon as free from collusion and tell them that if they are not so satisfied they cannot properly rely upon it as corroboration or for any other purpose adverse to the defence.”

Lord Mustill pointed out at pages 616 and 617 that the word “collusion” is capable of ambiguity. He said:

“In its more limited sense this may denote a wicked conspiracy in which the complainants put their heads together to tell lies about the defendant, making up things which never happened. It is however clear that the argument for the appellant, and the authorities on which it is based, give the word a much wider meaning; wide enough to embrace any communication between witnesses, even without malign intent, which may lead to the transfer of recollections between them, and hence to an unconscious elision of the differences between the stories which each would independently have told. The High Court of Australia in Hoch v The Queen [1988] 165 CLR 292 was called upon to deal with the former situation. The Court of Appeal in Reg v Ananthanarayanan [1994] 1 WLR 788 and in Reg v Ryder [1994] 2 All ER 859 plainly had the latter in mind. It may well be that the logic of the appellant’s propositions, if sound, applies to both situations alike, but in terms of their practical consequences the two are worlds apart.”

These observations were of particular importance in the context of “similar fact” evidence. Such evidence acquired its probative force from the existence of similar but independent complaints. If, however, the evidence reveals that the similarities may exist because they have been influenced by repetition between complainants, or by publicity, the complaints may not be independent at all, and the probative force of the “similar fact” evidence afforded by the improbability of coincidence is for this reason weakened or removed altogether.

Lord Nicholls of Birkenhead pointed to the difference between collusion and innocent contamination in a few words at page 627:

“Evidence from a co-complainant, if accepted by the jury, is evidence from a source independent of the complainant. When co-complainants are living in the same household there will often be a real risk of collusion. Frequently the complaints will only have emerged because in the course of discussion each learned what had happened to the other. Nonetheless, whether the evidence of a co-complainant ... is to be accepted as reliable and true is a matter for the jury ... In reaching their decision the jury will need to consider, where necessary, the possibility of collusion or unconscious influence of one witness by another. The appropriate course is for the judge to give the jury a clear direction that they should not accept the evidence unless they are satisfied that it is reliable and true and not tainted by collusion or other defects. If in the course of the trial the judge forms the view that no reasonable jury could be so satisfied, he should direct the jury that the evidence is not to be relied on as corroboration or for any other prosecution purpose. That extreme case apart, the risk of collusion is one of the matters for the consideration of the jury. The whole of the foregoing is subject to the judge’s overriding discretion under section 78 (1) of the Police and Criminal Evidence Act 1984 ...”

As we have noted, evidence of similar complaints may still be admissible to demonstrate the unlikelihood that similar complaints made against the same person are coincidentally false. The evidence will only be admitted under section 101(1)(d) Criminal Justice Act 2003 if the requirements of the gateway are met, including section 101(3) of the 2003 Act and section 78 PACE 1984. For the purposes of considering admissibility through a gateway the judge is required by section 109 of the 2003 Act to assume, for the purpose of assessing the relevance and probative value of the evidence, that it is true. If, however, there is material before the court from which it appears that no court or jury could reasonably find the evidence to be true the assumption need not be made. The judge, as before the enactment of the 2003 Act, continues to have a residual discretion to ensure the fairness of the trial under section 78 PACE 1984. Where, following the admission of the evidence, the court is satisfied that the evidence submitted is contaminated the judge will exercise his judgment under section 107.

It must follow, in our view, that where the judge does not conclude that the evidence is contaminated under section 107 but there remains a risk that it may be, the jury should be warned that mutual complaints will not be capable of supporting each other if they are not or may not be the product of independent and uncontaminated complaint. Clearly, if complaints are made in consequence of collusion or foreknowledge, innocent or deliberate, any probative value they may have had in demonstrating the unlikelihood of coincidence (and, therefore, their truth) disappears; hence the need for the trial judge specifically to direct the jury as to those risks which are revealed by or are inherent in the evidence.

If, on the contrary, the jury has been instructed that the evidence of each complainant must be judged separately then the evidence of each complainant must be considered solely upon its own merits, unsupported by the “coincidence” of another complaint. The occasion for a warning as to the risk of contamination will not on that account have arisen because the prosecution is not seeking to derive support from other evidence which acquires its probative force from the similarity of a separate complaint and the independence of those complaints. This is not to say that evidence of the circumstances may not reveal the real possibility of contamination. Contamination (deliberate or innocent), if it has or may have occurred, may render unreliable the evidence of one or more complainants whether or not the jury is invited to consider whether their evidence is mutually supportive. Where such a real possibility is revealed by the evidence we accept that there will be an obligation upon the trial judge to draw the jury’s attention to the risk. Whether there is an obligation upon the trial judge to address the jury upon the risk of collusion or of innocent contamination or both must, we think, depend upon the development of the evidence in the trial.

Thus, we conclude that in any case where the evidence of complainants is treated as cross admissible the jury will need to exclude collusion or innocent contamination as an explanation for the similarity of the complaints before they can assess the force of the argument that they are unlikely to be the product of coincidence. Save in an obvious case, in which the evidence has plainly excluded the risk of collusion and innocent contamination and no point is taken on behalf of the defendant, a direction to the jury will be required. Where, however, the evidence is not treated as cross admissible, the need to provide the jury with guidance upon the risk of collusion and/or innocent contamination will depend upon the particular circumstances of the case. The need for directions which meet those circumstances is amply demonstrated by the judgments of the Court in Paul W and Lamb. In Paul W the Court concluded that notwithstanding a specific direction to the jury that the evidence of one complainant could not provide support for the evidence of another, a direction as to the risk of collusion and contamination was required because one complainant knew the substance of the complaint of another before making his own complaint, and the defence in each case was that any indecent touching had been accidental. In Lamb, when at trial the evidence had been treated as cross-admissible, and the defendant had specifically raised the issue of innocent contamination, it was not enough for the judge to warn only of the risk of deliberate falsehood when no such possibility has been asserted.

This court (Leveson LJ, Griffith Williams J and HHJ Scott Gall) in K [2008] EWCA Crim 3301 considered the safety of convictions arising from allegations of sexual abuse some 30 years in age. Two brothers made complaints of abuse dating to the 1970s. The appellant argued that there was a risk that the evidence adduced from the complainants and other witnesses could have been contaminated such that the judge was bound to consider the discharge of the jury pursuant to section 107 CJA 2003. At the hearing of the appeal it was argued on behalf of the appellant that the judge, having permitted the trial to continue, should have given explicit directions as to possible contamination. In the circumstances of that case the judge directed the jury in relation to inconsistencies demonstrated by the defence and posed the question whether they may constitute evidence that the witnesses had “put their heads together in order to make these allegations”. Leveson LJ observed at paragraph 28 of his judgment that it was difficult to see how the evidence given by the witnesses could be the result of innocent collusion or contamination rather than deliberate concoction. He continued at paragraph 29:

“29.

It is that difference which in our judgment is crucial to the determination of the case. The battleground as the judge described it in this case was drawn between honest attempted recollection by mature adults of incidents many years past in their teenage years, and deliberate dishonesty (said to be at the behest of the ex-partner). By insisting that the jury focus on the evidence supporting each specific allegation with reminders of the strengths and witnesses of each, and without directing them on cross admissibility, the learned judge tailored his directions to his view as to the requirements of the case that he was trying. In that regard it is not irrelevant that prior to or otherwise contemporaneous with the summing up Mrs Burns (who it is obvious has been assiduous in doing her clients case from first to last) did not suggest that some other direction was appropriate ...”

We have examined in detail the evidence given at trial, and the conduct of the defence, in the present case. This appeal does not concern allegations of historical abuse which in consequence of possible repetition in the household, or by other innocent means, could have become the learned memory of the complainants. The case put to the complainants on behalf of the appellant, confirmed in his own evidence, was that S’s evidence was lies, driven not by a wish to tell the truth but by misplaced loyalty to her mother, and the evidence of L and A was solely motivated by dishonest support for S. It seems to us that the case being put on the appellant’s behalf was placed squarely by the judge before the jury for their decision. As the lines were drawn between the defendant and the prosecution there was no room for innocent contamination. Furthermore, this was not a case in which there was a risk of collusion between the witnesses which may have become obscured by the passage of time. Conversations between the witnesses were explored in the evidence, in detail. Each of the witnesses accepted that she had made relevant complaints to another and they were thoroughly examined upon their admitted contact. As the evidence emerged there was no realistic possibility of a form of subliminal contamination between S and A as a sensible alternative to out-and-out lying.

Mr Barlow engagingly accepted full responsibility for omitting to submit to the judge at any stage during the trial that innocent contamination was a danger against which the jury should be warned. Mr Barlow did, during the post-evidence discussion, draw the judge’s attention to the exigencies of delay and the Court’s decision in H (Henry) [1998] 2 Cr App R 161, and the judge informed Mr Barlow how he intended to deal with that issue in his summing up. The judge’s direction commences at paragraph 14G of the transcript, part of which we have extracted at paragraph 35 above. We have no doubt that Mr Barlow would have found no basis in the evidence upon which to support an argument for a direction as to innocent contamination even if it had occurred to him to make it. Had there been evidence from which a jury could reasonably conclude that innocent contamination could be an explanation for the complaints respectively made by S, L and A, then we agree that such a warning would have been appropriate, but there was, in our opinion, no obligation upon the judge to address the jury about hypothetical possibilities which had found no expression either in the evidence or in argument. Mr Barlow was unable to demonstrate to the Court a route by which the jury could sensibly have concluded that while the witnesses had not deliberately put their heads together they may innocently have learned the complaints they made shortly afterwards.

We note that the jury reached their decisions that both S and A were telling the truth about their experiences by both unanimous and majority verdicts. The requisite majority could not conclude that the prosecution had proved the appellant’s guilt upon count 7 (L being the complainant), about which the foreman informed the judge there were strongly held views on both sides. It seems to us that the jury were faithfully following the judge’s instruction to consider each of these counts on its individual merits without regard to the fact that similar complaints were made by all three complainants.

The judge directed the jury as to inconsistencies as follows at page 13A of his summing up:

“In the course of examining witnesses it is important and necessary to look carefully as the advocates have done at what they said in court and sometimes compare that to what might have been said in a witness statement that will have been made many months ago. That’s to test and to probe the accuracy and reliability of the evidence obviously. It would be remarkable you may think, if you think about it carefully, it would be remarkable if a witness many months after the events have taken place and many months after making a witness statement to the police remembered in exactly the right order and exactly the right detail every element of what may have occurred. Sometimes witnesses do have extremely good memories and can remember things sometimes witnesses begin to forget elements. It may be that it is easy to remember the really significant issues and then things that may be of only peripheral importance begin to get lost in the overall memory of events. If there are consistencies do they matter? Are they inconsistencies that go to the root of the reliability of the evidence of that witness or are they matters which can be explained and can be excused? These are matters for you to decide.”

Mr Barlow submits that the judge should have gone further in one respect. There was a difference in recollection between A and S as to whether it was S who first revealed to A that she had been abused or it was A who first revealed to S that the appellant had massaged her bottom. This inconsistency between the witnesses went to the issue whether they had failed to demonstrate truthful consistency rather than false inconsistency. Had the jury been reminded by the judge of the significance of the inconsistency they may, Mr Barlow argues, have concluded that the purpose of the telephone conversation was collusion. We do not accept this submission. The judge, Mr Barlow accepts, summarised the evidence accurately for the jury. We have no doubt that Mr Barlow will have drawn the jury’s attention to his criticism of the inconsistency and its possible implications. The judge informed the jury that they should make a judgment whether or not inconsistencies were the result of faulty recollection or went to the root of the reliability of the evidence. In our view the judge was not required to go further.

We have no reason to doubt the safety of these verdicts and the appeal will be dismissed.