MH v R. (Rev 1)

At Derby Crown Court before His Honour Judge Burgess, the Honorary Recorder of Derby, on 25 July 2011 the applicant was tried upon an indictment containing 17 counts as follows:

Count 1: between 1 September 2009 and 30 April 2010, rape of a child under 13 years by penetration of the child’s mouth with his penis, contrary to section 5(1) Sexual Offences Act 2003;

Count 2: between the same dates, sexual activity with a child under 13 years by placing the child’s penis in his mouth, contrary to section 9(1) Sexual Offences Act 2003;

Count 3: between 3 September 2005 and 1 May 2010, had in his possession, on the external hard drive of a computer SPW/5, 42 indecent images and movies of children, contrary to section 160(1) Criminal Justice Act 1988;

Count 4: between 10 January 2010 and 1 May 2010, had in his possession, on a SD memory card JEM/2, 14 indecent images of children;

Count 5: between 14 February 2010 and 1 May 2010, had in his possession, on a computer hard drive SPW/1, 37 indecent images/movies of children;

Count 6: on 26 January 2006, made an indecent photograph of a child, a category 3 image, on a computer hard drive SPW/1, contrary to section 1(1)(A) and 6 Protection of Children Act 1978;

Count 7: on 1 February 2006, made an indecent photograph of a child, a category 4 image, on a computer hard drive SPW/1;

Count 8: on 21 March 2006, made an indecent photograph of a child, a category 2 image, on a computer hard drive SPW/1;

Count 9: on 22 April 2006, made an indecent photograph of a child, a category 4 image, on an external hard drive SPW/5;

Count 10: on 15 February 2010, made an indecent photograph of a child, a category 1 image, on a computer hard drive SPW/1;

Count 11: on 15 February 2010, made an indecent photograph of a child, a category 1 image, on a computer hard drive SPW/1;

Count 12: on 15 February 2010 made an indecent photograph of a child, a category 3 image, on a computer hard drive SPW/1;

Count 13: on 15 February 2010 made an indecent photograph of a child, a category 4 image, on a computer hard drive SPW/1;

Count 14: on 11 January 2010 made an indecent photograph of a child, a category 1 image, on an SD memory card JEM/2;

Count 15: on 11 January 2010 made an indecent photograph of a child, a category 2 image, on an SD memory card JEM/2;

Count 16: on 11 January 2010 made an indecent photograph of a child, a category 3 image, on an SD memory card JEM/2;

Count 17: on 11 January 2010 made an indecent photograph of a child, a category 4 image, on an SD memory card JEM/2.

The victim in counts 1 and 2 was the applicant’s three year old son who is entitled to his anonymity pursuant to the Sexual Offences (Amendment) Act 1992. Further, we make an order under section 39 Children and Young Persons Act 1933 that the name, address, school or other details of the complainant shall not be published. The title to this judgment shall be ‘MH’ and by reason of the family connection we shall refer to the complainant and his mother as ‘T’ and ‘CF’ respectively.

The prosecution case was, in count 1, that the applicant inserted his penis into T’s mouth and required him to suck it; in count 2, that the applicant sucked T’s penis. Following the applicant’s arrest police officers seized from his ‘office’, a shed in the garden of the former family home, a tower computer, a remote hard drive and an SD memory card on which indecent images of children were found. Expert examination revealed that the images had been downloaded or copied from an external source. On the tower computer the expert found 42 indecent images of children; on the external hard drive were found 37 indecent images of children; on the memory card there were 14 indecent images of children. The images on the tower computer SPW/1 had been created by copying from another source on 15 and 16 February 2010, possibly SPW/5, and deleted on or after 16 February 2010. The deleted folders included those entitled “Both delete first”, “Boys delete first” and “Girls delete first”. They were recovered using specialist software. The images on the external hard drive SPW/5 had been created between 3 September 2005 and 19 June 2006 and deleted on some unknown date. They included the “both”, “boys” and “girls delete first” folders. The SD memory card contained images which had been created on 11 January 2010, the date of last access. Of 252 images, 14 were indecent images of children and 192 contained file names which indicated paedophilic content.

The complaint, which concerned counts 1 and 2, was made by the child’s mother, CF, to the police on 20 April 2010. T was ABE interviewed by DC Kerry Pope and a social worker, Ms Phillips, on 23 April 2010. The interview formed T’s evidence in chief. T was cross examined via the video link. CF gave evidence of the complaints made to her by her son. DC Pope gave evidence that when T was shown his ABE interview on 15 July 2011 in preparation for trial, he made further unsolicited and relevant remarks which were given in evidence. Technical evidence of the discovery of images on the applicant’s computer equipment was given by admission. The applicant gave evidence that no impropriety had taken place between himself and T. He admitted that he had downloaded indecent images of children to his computer and that he had subsequently copied them. He denied, however, that he had done this knowingly.

On 28 July 2011 the jury returned unanimous verdicts of guilty upon each count in the indictment. On 23 September 2011 the applicant was sentenced by the trial judge to terms of 15 years imprisonment upon count 1, 5 years imprisonment upon count 2, and 9 months imprisonment upon each of the remaining counts, each sentence to run concurrently with the other. The judge made a Sexual Offences Prevention Order under sections 104 and 106 Sexual Offences Act 2003, a Disqualification Order under section 28 Criminal Justice and Court Services Act 2000 and a Forfeiture Order under section 143 Powers of Criminal Courts (Sentencing) Act 2000.

The single judge, Foskett J, has referred to the full court the applications for leave to appeal against conviction and sentence. In short, the grounds of appeal against conviction are as follows:

(i)

The judge misdirected the jury upon the legitimate effect of the evidence of T’s complaints;

(ii)

The judge failed to emphasise the caution to be exercised before acting upon the evidence of a child of such tender years;

(iii)

The judge failed to instruct the jury upon the disadvantage to the applicant of delay;

(iv)

The judge failed adequately warn the jury against prejudice arising from the appellant’s admitted interest in adult pornography;

(v)

The judge failed to warn the jury against drawing an inference adverse to the applicant from his demeanour when CF drew his attention to T’s ‘complaint’;

(vi)

The trial of counts 3-17 should have been severed from the trial of counts 1 and 2 in order to avoid prejudice to the applicant; alternatively, a strict warning should have been given to the jury that they should not allow prejudice arising from the ‘image’ counts to infect their judgement upon counts 1 and 2;

(vii)

The judge failed to give to the jury a Lucas direction concerning the possible impact of a finding of guilt of counts 3-17 upon the jury’s consideration of counts 1 and 2;

(viii)

Counsel for the applicant, Ms Dorrell, failed adequately to represent the interests of the applicant at his trial.

The appellant contended that if the appeal against conviction upon counts 1 and 2 succeeded, that rendered the verdicts upon counts 3-17 also unsafe. Before the full court, the appellant raised a “supplementary” ground of appeal that the ABE interview should not have been admitted in evidence. We shall grant leave to appeal against conviction and henceforward shall refer to the ‘appellant’.

The appellant and CF met in 1998 and were married in 2000 when CF was a serving police constable. They had three children of whom T was the middle child. CF ceased work as a police constable to become a full time mother. T was born on 21 February 2007. The family lived in Matlock, Derbyshire, save for a period in 2008 when they moved to Cornwall where the appellant had been offered lucrative employment. The appellant lost his employment in Cornwall and in early 2009 the family returned to live at their former home in Derbyshire. By this stage the relationship was failing. CF left the matrimonial home with the children for about six weeks in the summer of 2009, but returned in late August with a view to reconciliation with the appellant.

CF was preparing T for bed, she thought in early December 2009. T was then aged 2 years 9 months. She placed a nappy on him for the night and put him into his bed. T said, “Mummy, suck my winky”; then, “Daddy sucks my winky”; then, “Mummy, suck my ear”. CF explained that T was asking her to suck his winky, meaning his penis, and to suck his ear, and was telling her that Daddy sucked his penis. She said that she replied with words to the effect, “We don’t do things like that”. The appellant was, as he often was, in the shed in the garden which he used as his office. Using a telephone handset she made contact with the appellant and asked him to come into the house. She met the appellant on the landing and they went into their bedroom. She told the appellant what T had said to her and asked why he should have said something like that. She continued:

“…he looked very nervous. He couldn’t look me in the eye and he kept swallowing and he was shaky, very shaky and said words to the effect of, “I don’t know why he would say that. I want to go and have a word with him”.”

The appellant went into T’s bedroom and CF remained immediately outside. CF could recall the appellant asking T what it was all about and suggesting to him other words which rhymed with, but were not, “suck”. She could not recall what they were. She recalled the appellant saying to T, “We don’t do things like that”. CF thought that T might have repeated to the appellant, “Daddy sucked my winky” but was “a bit hazy” about that. The appellant emerged from the room and said that T must have been mistaken in his use of words, or had been saying something else. The appellant went back to the shed.

The appellant, in evidence, accepted that this incident occurred but thought it was a few weeks earlier, in September or October 2009. The appellant said, as he had in interview, that to encourage T to prepare for bed he would play a game with him. On one occasion T had an erection when he was putting his nappy on him. The next morning T had wet the bed and his mother was not pleased. Following that incident, the appellant would say to T that Daddy would “tuck your winky” into the nappy or ask whether T wanted Daddy to tuck his winky. This went on for up to four weeks. The appellant gave evidence that he had been in the shed when CF asked him to come to the house. She told him that T had said, “Daddy sucks my winky”. The appellant agreed that he was shocked and shaken by what he heard. He was sure there had been a misunderstanding. He went into T’s bedroom, lay on the bed, and asked T what he had said to Mummy. T did not reply. He was very shy and coy and turned his head into the pillow. The appellant said he asked whether anyone in his play school had done anything to him or whether his older brother had said anything to him. He asked T whether he had said “tuck”. He did not receive any response. As far as the appellant was concerned “that was the end of it”. CF also said in evidence that she “decided to leave it there”. The appellant was not suggesting that he had explained to his wife the circumstances in which T may have misunderstood the word “tuck”.

Relations between husband and wife did not improve and on 4 January 2010, by agreement, she left with the children permanently. She and the children stayed in a flat provided by her parents. CF said that a few days later, perhaps on 10 January, she was in the lounge area of the flat putting on T’s nappy, ready for bed. T again asked her to suck his winky and to suck his ear. She said she would not and T responded, “Daddy sucks my winky”. CF phoned her friend in Scotland for advice. The advice offered was that CF should make sure T understood what was meant by the word “suck”. The following day CF gave T a glass of juice and a straw and asked him to suck it. He did. She asked him what he was doing with the straw and T said, “I’m sucking it”. Still, CF did not take the matter further and did not raise it with the appellant. She permitted the children to spend the weekend with their father on about five occasions between January and mid-April 2010. This would suggest that CF was herself still not persuaded that she should take further action.

The appellant had the children at the former matrimonial home on the weekend of Saturday, 18 April. On the evening of Sunday, 19 April CF was in T’s bedroom preparing him for bed. T asked his mother to suck his winky and his ear and he repeated, as before, “Daddy sucks my winky”. This time she responded, “Does he?” and T replied, “Yes”. She asked, “Do you do anything to Daddy?” and T replied, “I suck Daddy’s winky with my mouth” and pointed to his mouth. She asked whether he did anything else. He replied, “I pull it up and down”. She asked him to show her on Teddy. T placed his hand in Teddy’s groin area and demonstrated the movement of manual masturbation. CF again asked T to explain what he meant by “suck” and he sucked on two of his fingers deep into his mouth.

This time CF made handwritten notes of the sequence of incidents involving T, the appellant and herself. The notes were timed at 19.40 and she referred to them in her evidence. CF recorded that on 19 April T had also told her that Daddy said, “I like it” when T pulled his winky. She asked T where his winky was. T was by this time wearing his nappy and began “scrabbling at the top of his nappy and he couldn’t get to it”. She said, “OK, [T], what comes out of your winky?” T replied, “Wee, and milk comes out of Daddy’s winky”, and he pointed towards his penis. CF asked T whether anyone else touched his winky. He told her that his 5 year old cousin had touched it. She asked whether Mummy ever touched it. He replied, “No”. She asked whether T’s brother had touched it. T again replied, “No, just Daddy”. She asked how many times Daddy had touched it. He replied, “Two, twenty hundred”. She asked, “Or just once?” He replied, “Two hundred, he sucks it”. Asked when he had last done it, T replied, “A long time ago and now”. CF telephoned her friend and then the NSPCC. She was advised to report the matter. She took further advice from a police officer before contacting the local police on 20 April. She texted the appellant to say that the children would be unable to be with him during the approaching weekend.

The ABE interview commenced at 2.09 pm on 23 April. Following the preliminary familiarisation process, the officer attempted to introduce the subject for interview by asking T to show her what he had shown his Mummy on his teddy. The attempt produced no relevant response. The social worker asked what he did at Daddy’s house. He replied, “I sleeped”. He was asked what happened at Daddy’s house, “Can you remember what you told Mummy?” T replied, “I slept very well”. The following passage then took place between the social worker and T:

“SW: Did you?

T: Yeah

SW: Can you remember what happened to your winky?

T: Daddy sucked it

SW: Okay. And then what happened can you remember? What happened to your winky when he sucked it?

T: Daddy didn’t do anything, but daddy only sucked it

SW: Okay. Did, did you do anything to Daddy’s winky?

T: Yes

SW: What did you do?

T: Suck it in my mouth

SW: And then what happened? What happened to Daddy’s winky when you sucked it?

T: When I sucked?

SW: Yeah, what happened to Daddy’s winky when you sucked it? Did anything happen?

T: No

SW: No

T: I just didn’t (inaudible)

SW: What comes out of your winky?

T: No (inaudible). Daddy winky, milk comes out of Daddy’s winky.

SW: Okay. What comes out of your winky?

T: No. No milk comes out of my winky”

The social worker made an unsuccessful attempt to discover from T what happened to the milk which came out of Daddy’s winky and the interview was brought to a close.

It was suggested to CF in cross examination by Ms Dorrell that T had never told her that Daddy sucked his winky; she had put the words in his mouth. She denied the allegation. She agreed that when T made his complaint in January 2010 she thought of involving the police but at that stage did not do so; neither did she raise it with the appellant. The appellant continued to see the children at his home over the weekend. It was put to her that T had never demonstrated to her with his fingers what he meant by sucking. In re-examination CF was asked whether she had, following the complaint to the police, discussed the subject with T. She replied that T had said other things but she had never discussed the subject with him. Asked what else T had said, CF replied that during the weeks, and possibly months, after the ABE interview T had said to her that Daddy’s winky got bigger and bigger until he made a “Chh, Chh” sound. There were two daddies, one naked and the other with clothes on. He preferred the daddy with clothes on.

DC Kerry Pope gave evidence that on 15 July 2011, while T was watching the recording of his interview, and the recording came to the point at which T was asked what happened to the milk, T looked at the officer and said, “It went all over his body”. He pointed his finger and said, “Once. Milk came out once but he sucked mine loads [or lots] of times”. It happened “in the spare bed that’s mine”. T also told DC Perry that his father had a bit of sunburn on his back. Mr Goldberg tells us that in fact the appellant has a prominent birth mark on his back. DC Pope said that she had made a note of T’s intervention shortly after the completion of the viewing exercise.

Ms Dorrell asked questions of T in cross examination with the assistance of the intermediary. He said he liked it when he visited his daddy’s house. When asked whether Daddy did anything to his winky, he replied, “Yes, he sucked it”. He was asked where he was. He replied, “On the bed”. He was asked, “Did you do anything to Daddy’s winky?” He replied, “Yes, I sucked it and the (inaudible) when milk came out of it”. Ms Dorrell asked whether it was “a fib” and he replied, “Yes”. He was asked whether Mummy was making him say these things. He said, “Yes”. Ms Dorrell asked, “Is Mummy making you say these things about Daddy that aren’t true?” He said, “Yes. They are actually true”.

When the appellant was arrested at his home on 30 April 2010 he said, “She’s gone too far this time”. In interview he explained that CF would get it into her head that something had been said and get very emotional about it. She was an obsessional person when it came to her children. The appellant said that his own relationship with his children was loving and tactile. He was regularly involved in the physical care of the children. He claimed that T was a very deceitful boy. He knew how to wind up his older brother. He gave an account of the occasion when CF raised with him T’s reference to sucking his penis. He said he thought that T had, when he spoke to him in the bedroom, said or repeated the word “tuck”. When he was asked whether the children saw him naked, he replied that they may have done when he showered. Later, during the fourth interview tape, the appellant was asked whether the children had been exposed to anything sexual. He replied that in the early morning of Sunday, 19 April he heard his daughter cry out. He went to investigate and the children were all asleep. He returned to his own bed, became aroused and masturbated himself to ejaculation. When he had finished he saw T in the doorway of his bedroom. T asked why milk was coming out of Daddy. He told T to return to his bedroom and later told him not to tell Mummy about it. This account was repeated in evidence during cross examination. The prosecution suggested that the appellant’s account of this incident was inconsistent with the physical layout of his bedroom and the position of the doorway through which the appellant claimed T had watched him masturbating. Mr Herbert submitted to the jury that this was a disclosure made only to meet and avoid the prosecution case that T had seen him ejaculate in different circumstances.

The appellant said in evidence that he was a self-taught IT consultant. He had built the shed in the garden to be his office. He spent his working hours there and also his evenings. He said he was horrified to realise that there were indecent images of children on his computer. He owned the computer SPW/1. He had used a software programme in 2001 or 2002 to search for adult images on a web site. He had paid US $1.99 for three days access and had left the search programme running to download everything he could. He had later copied the images across to his new external hard drive SPW/5 as part of the process of copying everything, not just pornography. There had been no selection. He had forgotten that child images were cached on his computer. When he had come across them he would place them in special folders which he labelled “Boys Delete First”, “Girls Delete First” and “Both Delete First” with the intention of deleting, later, the whole contents of the folder. The explanation for the contents of the SD memory card was that the appellant had purchased an electronic photograph frame on which he could view photographs. He selected some adult pornography for viewing and copied it on to the SD card which could be inserted into the frame to create a slide show. He had not realised that the SD card contained images of children. When he attempted to play the frame he received an error message. The appellant accepted that the eight letter file description against each thumbnail image would in many cases have revealed the nature of the image, such as “Paedo”, “14YO”, “4YO”. Asked by Mr Herbert why he had gone to the trouble of moving images into three separate folders when he could have deleted them as he came across them, the appellant replied that he was a “techy”. He agreed that he had similarly placed his adult pornography images into separate folder categories, but he denied that his purpose was to categorise child images for viewing. The judge asked the appellant how he knew into which folder an image of a child should be placed. He replied, “As it happens some of these titles obviously gave it away, but this is going back to 2005/2006. They would go straight in to the deleted folder straight away, but sometimes if I was viewing them and a picture popped up, that would be when I would select it to the deletion folder”. The appellant said he had viewed about 12 indecent images of children altogether. He denied that they gave him any sexual pleasure.

The appellant maintained in evidence that CF had coached T to give the evidence he had. Her purpose, he suggested, was to stop the appellant seeing his children. He acknowledged, however, that CF had actively encouraged him to see the children after the agreed incident when she raised with the appellant T’s claim that “Daddy sucks my winky”. He suggested that CF was also motivated by the financial dispute between them following their separation in January 2010. He accepted, however, that disagreements about financial arrangements also arose after CF had first raised T’s claim. Ms Dorrell adduced the evidence of six character witnesses who spoke of his loving, honest and honourable character.

The jury returned with their verdicts of guilty at 12.32 pm on 28 July after a retirement of about an hour and 20 minutes. During the interval between conviction and sentence Mr Jonathan Goldberg QC was instructed to represent the appellant at the sentence hearing and, thereafter, to give advice on appeal. Mr Goldberg has provided us with full written submissions in which he has covered every significant aspect of the trial. We are grateful for his forthright but measured oral and written submissions.

The judge was provided with the report of an intermediary, Judy Clegg. T was at the time of trial aged 4 years and 4 months. His communication skills were consistent with his chronological age. There were no development problems and he was able to respond normally to a variety of questions. Questions needed to be phrased simply and straightforwardly. Complexity was to be avoided. T had limited understanding of the concept of time. He could speak of yesterday and tomorrow but could not handle days or dates, past or future. If a question was not understood by T he would not say so but would answer affirmatively so as to agree with the questioner. He was easily distracted. Ms Clegg attended court to be with T when he gave evidence. She assisted the judge and counsel with the phrasing of questions. The judge was satisfied at the outset that T was a competent witness but he indicated his intention to keep the matter under review. He decided not to engage T in the concepts of truth and falsehood.

Mr Goldberg identifies the evidence of ‘complaints’ by T to his mother, and subsequently to DC Pope, as important in the context of the trial. We agree. In summary, the hearsay evidence from CF and DC Pope comprised:

In his directions to the jury as to the significance of the hearsay evidence the judge said (Summing up, transcript 28 July page 14-15):

“If you accept her evidence [T] told his mother that Daddy had sucked his winky and he had sucked Daddy’s winky. Now, that much was the same as on the video. You also heard [CF] tell you what [T] had said to her so that the prosecution could deal with the suggestion that [T] had made this up, and for the same reason you heard from DC Pope of what [T] said to her whilst he was watching his DVD. Now, you will appreciate that [CF] and DC Pope cannot give direct evidence of what, if anything, happened between [T] and his father; they are just telling you what they say [T] told them, and the principal purpose of their evidence is to help you decide whether [T] is telling the truth, but it can also be considered by you as evidence of what happened between [T] and his father. I mention this because, if their evidence is right, that is DC Pope and [CF], [T] said more to them and gave more detail than he did on the DVD. For example, to DC Pope he said that the milk went all over his father’s body, and that that happened once, but his father had sucked his winky loads of times – he did not go into that kind of detail on the DVD – and [CF] said that he told her, among other things, that he used to pull his Daddy’s up and down.

Now, you are entitled to consider what [T] said to them as evidence of what happened, but bear this in mind. You have not had the opportunity yourselves of hearing and seeing [T] say those things, and it may be more difficult for you to gauge his reliability about what he said and, in the circumstances of this case, it would have been very difficult for Ms Dorrell to cross-examine [T] about what he may have said to others. So you have not seen that evidence tested by cross-examination and, as I say, bear those things in mind when you are considering what [T] may have told others.”

Mr Goldberg argues that the judge misdirected the jury in the following respects: (1) the defence did not suggest that T had made up his evidence - the defence was that the alleged activity did not take place, and (2) T’s complaints were inadmissible either as evidence of the matters stated by T to CF and DC Pope respectively, or to bolster the credibility of T’s evidence.

Under the common law, as it was applied immediately before the commencement of the Criminal Justice Act 2003, “recent complaints” were not admissible to establish the truth of the matters stated by way of complaint. They were admissible if they were made at the first reasonable opportunity and might support the consistency of the complainant’s account. If the complaint was made spontaneously, the complainant’s accompanying distress could, subject to a warning as to dissembling or the possible existence of another cause of the distress, support the credibility of the complainant’s evidence. The admissibility of previous consistent statements (including complaints) as evidence of the matter stated is now governed by section 120 of the Criminal Justice Act 2003. We shall recite in full the relevant terms of section 120:

“Principal categories of admissibility

120 Other previous statements of witnesses

(1)

This section applies where a person (the witness) is called to give evidence in criminal proceedings.

(2)

If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.

(3)

A statement made by the witness in a document—

(a)

which is used by him to refresh his memory while giving evidence,

(b)

on which he is cross-examined, and

(c)

which as a consequence is received in evidence in the proceedings,

is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

(4)

A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—

(a)

any of the following three conditions is satisfied, and

(b)

while giving evidence the witness indicates that to the best of his belief that he made the statement, and that to the best of his belief it states the truth.

(5)

The first condition is that the statement identifies or describes a person, object or place.

(6)

The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them well enough to give oral evidence of them in the proceedings.

(7)

The third condition is that-

(a)

the witness claims to be a person against whom an offence has been committed,

(b)

the offence is one to which the proceedings relate,

(c)

the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,

[...]

(e)

the complaint was not made as a result of a threat or promise, and

(f)

before the statement is adduced the witness gives oral evidence in connection with its subject matter.

(8)

For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.”

There are, accordingly, under section 120, five circumstances in which a previous consistent statement may be admitted as evidence of the matter stated in it:

Mr Goldberg rightly points out that the evidence of CF and DC Pope, to the effect that T described and elaborated to them relevant conduct by the appellant towards T, was not admissible under section 120(4) and (7) of the Act, since T was never asked in evidence to confirm that he had described such conduct to CF and DC Pope, and to confirm that his description was true. For this reason the condition for admissibility of a previous complaint provided by section 120(4)(b) was not fulfilled (see AA [2007] EWCA Crim 1779 at paragraphs 13 and 14). Despite the court’s warning in AA (and see Athwal below) it would appear that “complaints” continue to be admitted as though the former common law applied.

As to the application of section 120(2), Mr Goldberg suggested in writing that it was not the appellant’s case that T’s account in his ABE interview was fabricated. It was simply that the allegations made were untrue. We cannot agree with this assertion and Mr Goldberg was bound to make an appropriate concession in oral argument. In the defence statement it was alleged that:

“...the mother of the complainant, his former wife, has encouraged his son to claim that sexual activity took place. Her motives for doing so are that the couple are in the process of an acrimonious divorce where custody/residence of the child will be sought by each side. The matters in issue are whether or not the acts occurred and the reasons for taking issue are that the mother of the complainant has a motive for making false allegations, namely to prevent the defendant from seeing his children”.

It was explicitly suggested to T and CF in cross examination both that T’s account was untrue and that he had been put up to it by his mother. The appellant maintained in his own evidence that CF had specific motives for using T to make false allegations against him.

It seems to us that, had the evidence of previous disclosures by T not been led in chief by Mr Herbert, it is arguable that it would have been admissible in re-examination of CF for two possible reasons: first, because it tended to disprove the accusation of coaching and, second, because it tended to disprove fabrication by CF and/or T. It is important to consider the implications of this analysis. In the former case it is the fact that the disclosure was made in the circumstances contended which tends to disprove the accusation of coaching. It is not, however, admissible as hearsay evidence but because the fact of disclosure was relevant evidence (see Subramaniam v Public Prosecutor [1956] 1 WLR 965 at page 969 (PC)). That fact would not, without more, make T’s statement admissible in proof of its content. It establishes only the spontaneity of the disclosure. If, however, the statement was properly admitted to rebut an accusation of fabrication by T, with or without the encouragement of his mother, it is admissible in proof of its content under section 120(2). In our view, the history of T’s revelations was plainly relevant to the accusations both of fabrication and coaching of the child. Indeed, Mr Goldberg, in opening the application to us, described the evidence as “powerful” support for the reliability of T’s evidence. It must be acknowledged that, since the driving force for the falsehoods was alleged to be the complainant’s mother, the degree to which the history was capable of rebutting the allegation depended on the jury’s judgement of CF’s evidence. We therefore turn, secondly, to the question whether CF’s evidence of previous disclosures was admissible to rebut an accusation of fabrication.

As we have said, the mere fact that consistent statements have been made by the witness in the past is not sufficient to justify a decision to admit the statements in evidence. In his work Hearsay Evidence in Criminal Proceedings [2008] at page 181, Professor JR Spencer summarised the common law as follows:

“12.1

At common law a rule, closely related to the hearsay rule, provided that a witness giving evidence may not make use of his previous out-of-court statements either to supplement or to support his oral testimony; nor may evidence about them be given to this end by other people. This rule goes by at least three different names. In this book it is called ‘the rule against narrative’, but it is also known as ‘the rule against previous consistent statements’ and ‘the rule against self-corroboration’.”

Professor Spencer, at page 185, paragraph 12.10, described the changes made by chapter 2 of the Criminal Justice Act 2003. The rule against narrative has been retained but the rules about memory refreshment are relaxed; the common law exceptions are put into statutory form (section 120), and when, exceptionally, the court hears the previous statement of a witness (whether consistent (section 120) or inconsistent (section 119)) the legal standing of the statement has been raised; whereas in most cases the previous statement formerly went only to the credibility of the witness’ evidence in court, the previous statement now counts as evidence of any matter stated in it.

In Athwal and Others [2009] EWCA Crim 789, [2009] 1 WLR 2430 (Maurice Kay LJ, Mackay and Stadlen JJ), the Court considered the impact of section 120(2) upon the former common law relating to “recent fabrication”. The Court noted that in T [2008] EWCA Crim 484 David Clarke J, giving the judgment of the court, said obiter at paragraph 18:

“… section 120(2) is not itself a provision governing admissibility … what the sub-section does is to regulate the use to which such evidence, once admitted, may be put. It is then admissible as evidence of the truth of its contents, not merely as evidence going to the issue of consistency.”

Maurice Kay LJ posed the question, at paragraph 45 of his judgment in Athwal, whether previous statements were, since the 2003 Act, admitted as hearsay evidence pursuant to section 114(1) or only pursuant to the common law as to “recent fabrication”.

Section 114(1) provides that in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of the matter stated if, but only if (a) any provision in chapter 2 or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. Notwithstanding the obiter view of the Court in T the Court in Athwal concluded upon this issue:

“53.

What, then, is the effect of these provisions so far as “recent fabrication” is concerned? Once a previous statement is admitted to rebut a suggestion of fabrication, section 120(2) is clear. The statement “is admissible as evidence of any matter stated”. That is the same language as is used in section 114(1). The basic provision for the admissibility of hearsay evidence is that “a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated” subject to certain conditions. In our judgment, all this leads inexorably to the conclusion that a previous statement which is admitted to rebut a suggestion of fabrication is admitted as admissible hearsay under the regime of the 2003 Act. It is admissible as evidence of any matter stated because section 114(1)(a) provides that it is so admissible “if … any provision of this chapter … makes it admissible” and section 120(2) makes it admissible for that purpose. That does not mean that it must always be admitted. Section 114(3) continues to permit its exclusion on other grounds – for example, pursuant to section 78 of the Police and Criminal Evidence Act 1984, in so far as the evidence is sought to be relied upon by the prosecution.”

We respectfully concur with this view. However, as we have said at paragraph 29 above, there may be (rare) occasions when evidence of the fact that a previous statement was made is admissible as relevant to an issue in the case, quite apart from any capacity it may have to rebut an allegation of fabrication. In the event that the previous statement is admitted only on the ground of relevance of the evidence, and not because it passes through a section 120 gateway, it will not be admissible in proof of the matter stated. If, however, the ground for admission of the evidence is its capacity to rebut an allegation of fabrication, then section 120(2) provides that the evidence is admissible in proof of the matter stated.

It is thus for the trial judge to decide whether the previous statement is admissible to rebut an assertion that the witness’s oral evidence is fabricated. In Athwal the Court then turned to the question whether the absence of the word “recent” in section 120(2) was significant. At paragraph 58 Maurice Kay LJ said:

“58.

We add this observation. It is noticeable that section 120(2) refers to fabrication but without the temporal qualification “recent”. Again, this replicates the recommendation of the Law Commission. The omission of the qualification may be a welcome simplification. However, it is clear that the Commission did not recommend a wholesale departure from the previous approach. Indeed, it concluded that “the circumstances in which this minor exception can be used are best left alone” (Report, paragraph 10.45). On the other hand, we do not consider that the common law label of recent fabrication is to be confined within a temporal straitjacket. This case, and others before it, demonstrate that “recent” is an elastic description, the purpose of which is to assist in the identification of circumstances in which the traditional rule against self-corroboration, sometimes referred to as the rule against narrative, should not extend to the exclusion of a previous consistent statement where there is a rational and potentially cogent basis for its use as a tool for deciding where the truth lies. The mere fact that the witness has said substantially the same thing on a previous occasion will not generally be a sufficient basis to adduce the previous statement when the truthfulness of his evidence is put in issue. There must be something more – for example, the absence on the earlier occasion of a factor, say personal dislike, which is being advanced as a possible explanation for the falsity of his evidence in court. However, when circumstances have changed in such a way, it may not matter that they changed last week, last month or last year, provided that there is a qualitative difference in circumstances, but substantial similarity between the two accounts. There is no margin in the length of time. The touchstone is whether the evidence may fairly assist the jury in ascertaining where the truth lies. It is for the trial judge to preserve the balance of fairness and to ensure that unjustified excursions into self-corroboration are not permitted, whether the witness was called by the prosecution or the defence.” [emphasis added]

CF gave evidence that at a time when she and the appellant were living in the same household and attempting to save their marriage, T made the first disclosure to her (paragraph 22(i) above). If CF’s evidence was accepted by the jury, it was a previous statement by T which pre-dated the breakdown of the marriage. It was, furthermore, a disclosure which CF then and there drew to the appellant’s attention. Depending upon the jury’s view of the evidence of CF and the appellant respectively, they were entitled to treat the evidence as rebutting the allegation of fabrication. In argument Mr Goldberg accepted this proposition.

The same cannot be said for the further disclosures made by T (paragraph 22(ii)-(v) above) because they were made at a time following the final breakdown of the marriage and the departure of CF and the children from the matrimonial home. They did not tend to disprove the allegation that T had been coached by his mother because, by then, it could not be said that the motive had not arisen. However, at the time when T made his further disclosures to CF on or about 10 January 2010, she was admittedly encouraging the appellant to look after the children unsupervised at weekends. It was indeed immediately following such a weekend visit on 18 and 19 April that the third disclosure was allegedly made to CF. The further disclosures of January 2010 were also inconsistent with the appellant’s case that one of CF’s purposes in coaching her son to false allegations was to prevent the appellant seeing his children. Once again, depending upon the jury’s view of the evidence, the timing of the further disclosures was capable of undermining the appellant’s accusation of fabrication. However, we accept Mr Goldberg’s submission that this further reasoning cannot apply to the disclosures made to CF on and after 19 April 2010 (paragraph 22(iii) and (iv) above). From that moment on the children did not see, and by implication would not have been permitted to see, their father; and it is common ground CF and the appellant were in a financial dispute. In our view, therefore, the disclosures to CF in or about December 2009 and January 2010 were admissible to rebut the accusation of fabrication within the meaning of section 120(2) and, for that reason, were admissible in proof of the matters stated by T. To use Maurice Kay LJ’s words, the evidence of previous consistent statements would “fairly assist the jury in ascertaining where the truth lies”. However, the disclosures made to CF in and after April 2010 were not admissible under section 120(2).

The judgement whether such evidence should be admitted is to be exercised with care. In Athwal the court cited with approval the guidance of Dixon J in Nominal Defendants v Clements [1961] 104 CLR 476 (High Court of Australia) at page 479:

“… In as much as the rule [i.e. rebuttal of recent fabrication] forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that the foundation for such an attack has been laid- but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.”

The importance of this authority in its modern context is its insistence that grounds for admissibility must be carefully established. It is not permissible to assume that changes in the law of hearsay evidence made by the 2003 Act have somehow resulted in a permissive attitude towards the admission of hearsay. Care is, perhaps, even more important in the present context because, if the evidence is admissible to rebut fabrication, it is now also evidence in proof of the matter stated when formerly it was not.

For the reasons we have given, we conclude that had the judge been asked to rule upon the admissibility of the evidence described at paragraph 22(i) and (ii) above under section 120(2), he would have been justified in ruling, and would have ruled, it admissible.

The same cannot apply, in our view, to the disclosures made by T to his mother on and after 19 April 2010 (paragraph 22(iii) and (iv) above), for the reasons we have given at paragraph 34; neither does it apply to the disclosure made to DC Pope on 15 July 2011 (paragraph 21(v) above). The disclosure to DC Pope was made, it is true, before T was subjected to cross examination in his oral evidence at trial and, for that reason, may have qualified as a previous statement (notwithstanding the ABE interview had already taken place), but by 15 July the appellant had been charged, there was no question of the appellant enjoying access to T, and the financial dispute between CF and the appellant was yet to be resolved. We are prepared to accept that a disclosure made on 15 July to a third person was not, on the facts of this case, capable of rebutting the allegation of fabrication, either by the mother or by T himself, unless the circumstances unequivocally tended to exclude the risk of coaching.

Nonetheless, Mr Herbert submits that all of T’s disclosures were, in the alternative, admissible in the interests of justice under section 114(1)(d) of the 2003 Act. It is to be noted that the test for admissibility of the evidence under section 114(1)(d) is different. In the case of section 120(2) the test is whether the evidence tends to rebut fabrication; if it does, and is admitted for that purpose, the evidence becomes, by the operation of section 120(2), admissible in proof of the matter stated. Under section 114(1)(d), however, the test is whether the evidence should be admitted, in the interests of justice, for any purpose, including proof of the matter stated. Mr Herbert relied upon Maurice Kay LJ’s reference to the prohibition against “self-corroboration”. He submits that there is a material difference between an adult, or an older child, making repeated allegations of sexual misconduct (with the risk that mere repetition may provide spurious self-support) and a child aged three years who does not possess the sophistication required to manipulate such opportunities to his own advantage, consciously or sub-consciously. The child’s repeated and unsolicited references, in an unchallenging domestic context, to the appellant’s conduct towards him provided, Mr Herbert submits, cogent evidence of T’s truthfulness and reliability. It was in the interests of justice for such evidence to be considered by the jury both for its capacity to demonstrate the truth of the witness’ evidence and, on account of its inherent reliability, as evidence of the appellant’s conduct.

In SJ [2009] EWCA Crim 1869 (Hooper LJ, Rafferty and Cranston JJ) this court had to consider a situation with some (but, we agree, limited) similarities to the present. The victim of a serious sexual assault was a child aged 30 months. She was not competent to give an ABE interview. She had suffered serious internal injuries from penetration of the vagina by a penis or similar object. She had been alone in a room when someone entered and committed the act. Self infliction could be excluded. In response to questions asked by her mother, and on one occasion by a social worker, during the following month, the child said both that she had hurt herself and that she had been hurt by the appellant, her stepfather. The issue for the Court was whether the evidence should have been admitted under section 114(1)(d). The Court noted that there was a strong circumstantial case against the appellant and continued at paragraph 33:

“33.

It is accepted that the evidence that she was giving was important in the context of the case as a whole. In our view, its importance is this. The issue that the jury had to resolve was whether or not they were sure that the appellant had committed this dreadful crime. In reality that meant they had to be sure that the crime had not been committed by a third party intruder into the room.

34.

As to whether or not it was an intruder, or the appellant, it seems to us that this evidence was highly relevant. She was not saying that someone else had caused the injuries. To the extent that she was saying that anyone other than herself had caused the injuries, it was this appellant.

35.

We accept, of course, that there was difficulty in challenging the statement, but that does not mean that the evidence was not admissible.

36 We have no doubt that the judge was right to rule the evidence in...”

We derive from SJ the proposition that, while care must be exercised, there may be circumstances in which the interests of justice demand the admission of the hearsay evidence, even if it is of critical importance to the main issue in the case.

The matters to be considered upon an application to admit evidence in the interests of justice, which cannot enter through one of the specific gateways provided by chapter 2 of the Act, are set out at section 114(2). They are (a) the probative value of the evidence in relation to a matter in issue in the proceedings, or how valuable the evidence is for understanding other evidence in the case, (b) what other evidence has been, or can be, given on the matter, (c) how important the matter is in the context of the case as a whole, (d) the circumstances in which the statement was made, (e) how reliable the maker of the statement appears to be, (f) how reliable the evidence of the making of the statement appears to be, (g) whether oral evidence of the matter stated can be given and, if not, why not, (h) the amount of difficulty in challenging the statement, and (i) the extent to which that difficulty would be likely to prejudice the party facing it.

We recognise immediately that the trial judge was never asked to exercise his discretion to admit the evidence under section 114(1)(d) and he did not, therefore, address these issues. Its admissibility was not challenged. We cannot now be sure on what basis Ms Dorrell concluded that there was no prospect of successfully resisting the prosecution’s wish to adduce it. The circumstances were, however, overwhelmingly in favour of the admission of the hearsay evidence in the interests of justice, whether or not it was also capable of admission under section 120(2).

At the time when T gave his ABE interview he was aged 3 years 2 months. It was a borderline decision whether to subject him to the process of interview at all. The police officer and the social worker did their best to elicit evidence from T but in view of T’s tender years they were unable to obtain much more than a bare description, to the effect that Daddy sucked T’s winky, that he, T, sucked Daddy’s winky, and that milk came out of Daddy’s winky. We have seen the DVD recording of the interview. T’s description is straightforward and unhesitating. However, the boy’s father was alleging that his mother was behind the allegations. The acts alleged were of so gross a nature that evidence which went to eliminate misunderstanding, to explain the child’s level of comprehension or to establish that he was describing events which actually occurred was important in the context of the case as a whole. Ordinarily, this would be explored with the witness in the ABE interview. That was hardly possible with a child aged three years. It seems to us inherently improbable that T would, of his own volition, invent the subject matter of the complaint. The defence case was that such activity never occurred - T had been coached into saying something which was untrue. The only other, and just about realistic, alternative was that T was describing something which he thought had occurred when it had not. Evidence of the manner and circumstances in which T made his disclosures had, it seems to us, an important bearing upon the reliability of T’s account of sexual misconduct by the appellant.

A concluded view upon T’s reliability (section 114(2)(e)) was unlikely to be possible without knowing the background circumstances. On the face of it, however, the circumstantial context of the disclosures was compelling. As to the reliability of the evidence of the making of the statements, CF had, on 19 April, made a note of the progression of events and, specifically, a detailed note of the conversation with her son on 19 April. Inconsistent with the appellant’s defence that CF was motivated by malice is the fact CF recorded both clear and unclear disclosures by T. DC Pope made a note once the viewing of the DVD on 15 July had been completed. This evidence could not otherwise be received by the court by reason of the tender years of the witness, who could not be expected to remember the occasions when he had made the disclosures to others. Had he been able to remember the complaints and to confirm their truth, they would have been admissible under section 120(4) and (7). It was in the interests of justice that the jury should not be deprived of evidence which, but for the age of the witness, they would likely have received through a specific gateway.

We accept that the appellant had difficulty in challenging the statements. They were made on occasions when he was admittedly not present. However, T himself did give evidence and Ms Dorrell was able to obtain intelligible responses both to the question whether Mummy had told him to say what he did, and whether what he said was true. Both CF and DC Pope gave oral evidence and were available for cross examination upon their motivation and reliability. For tactical reasons, which we shall consider below, Ms Dorrell elected not to mount an attack on the integrity of DC Pope, and did not explore with CF her alleged motivation for coaching her son to tell a false story. Finally, the appellant had been consulted soon after the first alleged disclosure and was able to give in evidence the explanation that T may have misused the word “suck” when he meant “tuck”.

While, therefore, the trial judge was not asked to exercise his discretion to admit the evidence under section 114(1)(d), we are satisfied that there was a strong case for so doing, and the evidence was rightly placed before the jury. We do not accept Mr Goldberg’s argument that the appellant was deprived of a “sporting chance” of persuading the judge that it should not be admitted. The judge clearly considered the disclosure evidence to be relevant and probative upon an important issue in the trial and we have no doubt that, if asked to exercise his judgement, he would have permitted the evidence to be given in the interests of justice. We do not accept that the admission of the evidence created unfair prejudice. It was, as Mr Goldberg acknowledged, powerful evidence in support of the reliability of T, if it was accepted, and, for the same reason, we observe that it was powerful evidence that T was describing events of which he had personal experience. But that did not render admission of the evidence unfair. The target of the appellant’s case was the child’s mother; both T and his mother were available for cross examination. The judge properly directed the jury that they should approach the evidence with caution because they had not heard from T himself the full extent of the disclosures made and they should bear in mind that Ms Dorrell was limited in the extent of cross examination of T which she could reasonably conduct. In our view, the balance was properly struck between the interests of the prosecution and the defence.

Mr Goldberg criticises the decision of DC Pope not to record contemporaneously the viewing of T’s ABE interview on 15 July. That way, any spontaneous response by T would have been recorded and there would have been no room for challenge. We agree that a further DVD recording would have been the preferred option. However, the Ministry of Justice guidance Achieving Best Evidence in Criminal Proceedings does not treat recording as mandatory. What is required (4.51) is a record of anything said at the viewing. DC Pope did make a handwritten note of T’s responses as soon as the viewing was completed and T had left the viewing suite. We do not consider that a failure to record the viewing should have led to the exclusion of DC Pope’s evidence. As we have noted, counsel did not challenge that DC Pope had properly recorded T’s disclosure.

We conclude that the judge was right to direct the jury that they could consider the circumstances of T’s further disclosures when deciding whether T was a reliable witness and when deciding whether the appellant committed the offences charged in counts 1 and 2.

At page 5C of the transcript of his summing up the judge instructed the jury of the issue which arose in respect of counts 1 and 2:

“Can we rely on what [T] has said about what the defendant did?”

At page 11E he continued:

“I want to talk about [T] now. Before I embark on the evidence and remind you of what [T] has had to say, I want to say a few words about him. There is nothing in the law that says you have to be a certain age before you can give evidence, but it is a fact that [T] is very young, and that has certain consequences to this trial. It must have been obvious to you that he cannot be treated in court in the same way as an adult witness, or even an older child. We needed the services of an intermediary to help us ask him appropriate questions and, if necessary, to help him. You saw how the intermediary helped with the phrasing of questions. Ms Dorrell was very careful to ask questions in such a way that [T] would understand. Of course, she could not cross-examine him in the way she would have done if he had been older, and no doubt you will bear that in mind when you consider [T’s] evidence.

With the benefit of hindsight it would have been far better if this trial had taken place as soon after [T’s] interview as possible, and it seems that the time taken to examine the defendant’s computers has held things up considerably. Be that as it may, there has been a long 15 month gap between that DVD being made and this trial, and you will want to consider whether that delay has made any difference to the reliability of what [T] has had to say. Does he now have recall of what he said happened between his father and him?” In considering that question you will no doubt have in mind the evidence of the officer in the case who accompanied him when he watched his DVD a fortnight ago in preparation of him coming to court. She said that during his watching of that video, that DVD, he volunteered some extra detail, something that he had not said on the DVD in April 2010. You will also no doubt have in mind what he said to Ms Dorell when she was asking him questions. You may also wish to consider how he came to say what he did in that DVD. You will remember that the interviewer had been trying to ask [T] what he had said to his mother. I will remind you of what he said. “What happened when you slept at Daddy’s house, can you remember what you told Mummy?”, and he said, “I slept very well”. “Did you?” “Yeah.” And then he was prompted by saying, “Can you remember what happened to your winky?”, and he said, “Daddy sucked it.” Now, you will want to consider whether that is a leading question in the sense that it went some way to providing [T] with the answer. It is a matter for you whether it did that. It is right that what [T] said about his father in that interview was not spontaneous and unprompted. However, you will want to consider whether the question that prompted his reply really does go as far as putting words in his mouth. If you accept what his mother said in evidence you will be satisfied that this was something that [T] had said unprompted on three previous occasions, and that the defendant himself was aware some time in 2009 that [T] was saying something like this.

I suppose if I am going to summarise my remarks about the way you should approach [T’s] evidence I would say, “Be fair about it and acknowledge the limitations under which Ms Dorrell on behalf of the defendant has to work.”

Mr Goldberg has argued that this was an inadequate warning of the dangers inherent in relying upon the evidence of a three year old child. The judge should have embarked upon an explanation that children may imagine or fantasise or misunderstand a situation; that they may be easily coached, or say what they think the mother wants to hear, or that they may merely repeat by rote that which has been said on a previous occasion. The judge should have warned the jury not to be beguiled by the attractiveness of [T] as a child and to bear in mind his extreme youth. Mr Goldberg says that the judge should have tailored such directions to the specific facts of the present case. He dealt, however, in bland generalisations.

We do accept the submission that a judge should give relevant directions of law appropriate to the factual context of the case. We consider that this is what the judge did. It would have been quite wrong for the judge to have engaged in generalisations remote from the facts of the case. The jury had observed in the DVD a bright young boy who could not easily be brought to the point. When asked the direct question he did not hesitate to give a clear answer. The risk was that the answer was prompted by the terms of the question. The judge told the jury to be wary of that risk. On the other hand, there was evidence that T had previously made spontaneous disclosures to his mother. Although the judge did not in this context refer to the circumstances of those disclosures, they were compelling. T wanted his mother to play the same games with him as did his father. He was in other words asking his mother to suck his winky because his daddy did. On the face of it this form of disclosure was inconsistent with anything other than T’s description of personal experience. If the jury accepted the mother’s evidence of the circumstances, they could exclude any notion that T had made up allegations against the appellant or that he had been tutored to make them. The judge chose not to remind the jury of details at this point in his summing up, no doubt so as to avoid deflecting them from his chief direction which was to exercise caution and to be fair to the appellant. Far from giving a disadvantageous direction about T’s evidence it seems to us that the judge was being scrupulously fair to the appellant.

There had been an extended delay between the ABE interview and the trial and an essential question was whether the child could be expected to give any meaningful evidence from his recollection. Delay was a subject upon which the judge was bound to direct the jury. Upon this issue the judge had no alternative than to draw to the jury’s attention the fact that T had made a spontaneous remark to DC Pope which demonstrated the existence of a current recollection. If the jury accepted the evidence of DC Pope the risk that T could not give meaningful evidence in cross examination was excluded. What is more, T did give comprehensible answers to Ms Dorrell in cross examination. There was, in our view, no obligation on the judge to make generalised remarks about the risk of fantasising or coaching. We are reinforced in this view by the observations of Lord Judge CJ in B [2010] EWCA Crim 4 at paragraph 40 (see paragraph 54 below). The jury had to deal with the evidence that they had heard. In so doing they knew perfectly well that the appellant could not be convicted if it may be that T was fantasising or merely repeating that which he had been coached to say by his mother. As to the risk that the jury may reach a verdict based upon sympathy for the child or revulsion for the offence, we have extracted the judge’s direction at paragraph 59 below.

We have quoted at paragraph 45 above the judge’s direction on delay. In Powell [2006] EWCA Crim 003 (Scott Baker LJ, Ramsey J and the Recorder of Cardiff), the complainant, aged 3 years 6 months, was not interviewed until nine weeks after the sexual assault of which she had complained to her mother. The trial did not take place until seven months had passed since the ABE interview. The Court regarded the delay as “completely unacceptable”. The appeal was allowed on the ground that the complainant was not a competent witness, although she might have been proved to be a competent witness had she been interviewed sooner and had she, when cross examined, been able to provide intelligible answers. In Malicki [2009] EWCA Crim 365 (Richards LJ, Christopher Clarke J and Sir Peter Cresswell) the trial did not take place until 14 months after the alleged sexual assault. The reason was that an expert (as here) was examining the appellant’s computer which was found to contain a large number of indecent images. Nevertheless, when the complainant, aged 5, was cross examined she was firm that the sexual assault had been committed. The Court allowed the appeal on the ground that the delay before trial was excessive. Richards LJ, giving the judgment of the Court, said at paragraph 18:

“18....The video interview in the present case was prompt, but the overall delay until trial was much greater. The problem in such a case as it seems to us is twofold: first, the risk that a child so young does not have any accurate recollection of events fourteen months previously (that is almost a quarter of her life ago); secondly, the even greater risk that if she is shown the video of her interview just before the trial and during the trial, as she must be, all she is actually recollecting is what was said on the video, and that she is incapable of distinguishing between what was said on the video and the underlying events themselves. It seems to us to be a near impossible task to undertake an effective cross-examination in those circumstances when the cross-examination must depend for its effectiveness on probing what actually happened in the course of the incident itself and immediately after it, not just going over what the complainant said in her interview. These problems go beyond the normal difficulties of recollection with an adult witness or an older child.

19.

It is plain that this case did not receive the expedition it could and should have had. For the purposes of the appeal it does not matter where the fault lay. The result was to create the same unfairness for the appellant as was referred to in such strong terms in Powell.”

We recognise and confirm that in the case of an infant complainant significant delay between the alleged sexual assault and the trial may render the witness incompetent (or more accurately, unable) to give evidence about it, for the reasons given by the court in Powell and Malicki. That is not, however, merely because time has passed but because the passage of time has affected the competence of the child to give intelligible answers to questions about the incident. In B [2010] EWCA Crim 4 (Lord Judge CJ, Hallett LJ and Macur J) the Lord Chief Justice made important observations about changes in our understanding of the ability of children to give an account of events which have affected them personally. At paragraph 40 the Court dispelled some old thinking about the evidence of children:

“40.

We emphasise that in our collective experience the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness. In trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.”

At paragraph 42 the Court explained the importance of the trial process both in the search for truth and the maintenance of fairness to the defendant of the proceedings:

“42 The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes very young, and it should not take very lengthy cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or reciting a well rehearsed untruthful script, learned by rote, or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension, and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence.”

The Court emphasised the need to keep the issue of competency under review. At paragraph 50, on the subject of delay, the Lord Chief Justice said:

“50 Both Powell and Malicki underlined the importance to the trial and investigative process of keeping any delay in a case involving a child complainant to an irreducible minimum. Unsurprisingly, we agree, although we draw attention to the circumstances which did not appear to arise in either Powell or Malicki, that the complaint itself, for a variety of understandable reasons, in the case of a child or other vulnerable witness may itself be delayed pending “removal” to a safe environment. The trial of this particular issue was delayed because of the trial arising from the death of Baby P. With hindsight it can now be suggested that perhaps the better course, given the age of X, would have been to try her allegation first. Be that as it may, in our judgment the decisions in Powell and Malicki should not be understood to establish as a matter of principle that where the complainant is a young child, delay which does not constitute an abuse of process within well understood principles, can give rise to some special form of defence, or that, if it does not, a submission based on “unfairness” within the ambit of section 78 of the 1984 Act is bound to succeed, or that there is some kind of unspecified limitation period. There will naturally and inevitably be case specific occasions when undue delay may render a trial unfair, and may lead to the exclusion of the evidence of the child on competency grounds. Powell, for example, was a case in which after the evidence was concluded it was clear that the child did not satisfy the competency test, and if the child in Malicki was indeed “incapable of distinguishing between what she had said on the video and the underlying events themselves” it is at least doubtful that the competency requirement was satisfied. However, in cases involving very young children delay on its own does not automatically require the court to prevent or stop the evidence of the child from being considered by the jury. That would represent a significant and unjustified gloss on the statute. In the present case, of course, we have reflected, as no doubt the jury did, on the fact of delay, and the relevant timetable. Making all allowances for these considerations, we are satisfied, as the judge was, that this particular child continued to satisfy the competency requirement.

Mr Goldberg contends that the trial judge should, in the present case, have directed the jury to consider the disadvantage to the defendant of the delay which had taken place before trial. We consider that this is what the judge did. He pointed out the inherent difficulty for defence counsel in carrying out the conventional cross examination which she would have done in the case of an adult witness or an older child. The jury was well aware that their assessment of the reliability of T depended in large measure upon their assessment of the evidence of CF. As we have said, the judge was bound to point out that if the jury accepted the evidence of DC Pope there was little doubt that in July 2011 T did in fact have a recollection of an incident which had taken place shortly before his ABE interview. The judge’s responsibility was to leave the issue to the jury in a balanced and fair manner. This is what he did.

Mr Goldberg argues that the judge should have warned the jury against the risk of convicting on prejudice alone. There were two subjects that had the capacity to cause prejudice in the minds of the jury: the appellant’s admitted interest in adult pornography and his possession of indecent images of children on his computer, external hard drive and memory card.

The judge instructed the jury at page 4G of the transcript of his summing up to try the case according to evidence. He pointed out that:

“this sort of case is bound to generate emotions, possibly of sympathy, possibly of revulsion, and the reason I mention that is to tell you that you should be aware of the possibility of being influenced by your emotions, and you should remember that your duty is to try this case on a dispassionate assessment of the evidence. So be aware of emotions but do not be swayed by them.”

At page 9A the judge reminded the jury of the relevance to count 1 and 2 of the discovery of indecent images of children on his computer. At page 9G the judge also pointed out that it did not necessarily follow that because the appellant had an interest in indecent images of children he committed the offences in counts 1 and 2, or, if he committed the offences in counts 1 and 2, that the indecent images were knowingly in his possession. The jury was reminded of the appellant’s good character and the two ways in which that character could count to his advantage (S/U page 10G). The judge qualified his direction only to the following extent at page 11D:

“How much weight you give to it is a matter for you, and it is for you to say whether anything you have heard in the course of this trial tempers what his witnesses have said about him.”

In our judgment there was no risk that the jury would convict because they were unfairly prejudiced against the appellant. The judge told them of the limited relevance of the indecent images of children and instructed them to beware of being influenced by sympathy or revulsion. There was no risk that the jury would be prejudiced against him simply because he viewed adult pornography. It is clear to us that both parties treated that interest as entirely outside the legitimate consideration of counts 1 – 17. The jury was left to make its own judgment about the weight to be given to the appellant’s character and it is true that his character included his interest in adult pornography, a trait which does not appear to have been known to the character witnesses who were asked about it. However, we do not consider that the judge’s direction on good character had any tendency to invite or permit a conviction on the ground of prejudice. They had been instructed to adopt a hard-headed approach to the evidence in respect of each count separately. The judge was, in our view, justified in expressing his qualification to the good character direction in general terms because to have descended to detail may have had the effect of diminishing its value to the appellant.

We have summarised at paragraphs 8 and 9 above the evidence from CF and the appellant respectively of his shock at hearing CF relate T’s words to him in September-December 2009. It is submitted that the judge should have directed the jury not to attach weight to the evidence since, whether the appellant was guilty or innocent, his reaction was likely to have been one of shock. We do not accept that any such direction was necessary. The appellant accepted that CF’s revelation shocked and shook him. He explained the reason why. The jury did not need an explanation from the judge as to the significance they might or might not attach to it depending upon the evidence they accepted; nor should the judge have removed the issue from the jury.

Mr Goldberg accepts that evidence of the possession of relevant articles may be admissible in evidence of the commission of the defendant of a sexual offence, since it may establish a relevant sexual interest (see D, P and U [2011] EWCA Crim 1474 at paragraph 7, per Hughes LJ, Vice President). He submits, however, that this is a case in which the evidence should have been excluded and, therefore, the indecent images counts (3-17) should have been severed from the trial. The effect of the evidence was to “swamp” a weak prosecution case.

We do not accept these submissions. The counts were properly joined. T’s evidence, together with the admissible hearsay of his earlier disclosures, created, in our view, a strong prosecution case. The evidence tended to disprove the accusation of coaching. Proof of a sexual interest in children, particularly boys under the age of puberty, was relevant to the probability that he had committed gross offences against his son. The judge explained in ordinary language the relevance of the evidence but made it clear that the jury should not jump to conclusions.

Mr Goldberg argues that the judge should have directed the jury that any lies told by the appellant about his knowing possession of indecent images of children may have been “innocent” because they were told to avoid the risk that the jury would assume he must be guilty of counts 1 and 2. In his summing up the judge dealt with the appellant’s account for the presence of the indecent images on his computer, hard drive and memory card solely in the context of counts 3-17. That account was at the heart of the defence to counts 3-17 and we accept Mr Herbert’s submission that no Lucas direction was required in respect of those counts. We also accept that the judge might, justifiably, have given a Lucas direction focused upon the possible motivation for lying to bolster a true defence to counts 1 and 2. However, the judge dealt with this issue by informing the jury that even if they were satisfied that the appellant was, contrary to his denial, guilty of possession of and making indecent images of children, it did not necessarily follow that he was guilty of the more serious counts. In our opinion, that was sufficient to ensure fairness to the appellant. The jury well knew that they could not convict the appellant upon counts 1 and 2 unless they were sure that T was a reliable witness.

The appellant claims that he was inadequately represented by Ms Dorrell. At the heart of the appellant’s criticism is Ms Dorrell’s failure adequately to advance in cross examination the appellant’s theory that CF’s motivation for coaching T to make false allegations against his father was the marriage breakdown, and that DC Pope had deliberately falsified her note of 15 July to assist CF to advance her false allegations. We have Ms Dorrell’s written response to the grounds of appeal following the appellant’s waiver of privilege. As to the note of 15 July, the appellant wished Ms Dorrell to make an application to stay the proceedings on the ground of abuse of the court process, generated by an agreement (or an “esprit de corps”) between CF and DC Pope. There was in fact no evidence that the two women were known to one another before 20 April 2010 and they have since confirmed that they were not. Ms Dorrell declined to make the application or to advance the conspiracy theory on the ground that the judge “would not have it”.

There was no prospect that counsel would persuade the judge to stay the proceedings on the ground of abuse. There was no evidential basis on which to make the accusation of conspiracy. If, as the appellant wished to assert, CF had persuaded DC Pope to assist her to pervert the course of justice, the appropriate forum for the making of the allegation was the trial itself. Furthermore, there was no evidential basis upon which to challenge the honesty of DC Pope’s note and it was unlikely that, if honestly made, the note was significantly inaccurate. On the other hand, it was not essential to mount an attack on DC Pope’s honesty and reliability, since, even if the note was accurate, it would be open to the appellant to allege, as he did, that T’s further revelations were the result of coaching and not independent recollection.

As to cross examination Ms Dorrell was in a difficult position. First, it was inherently unlikely that both the mother and a police officer had decided falsely to bolster T’s evidence. Secondly, there was no evidence upon which a conspiracy theory could have been advanced. Ms Dorrell was aware that the investigating officers had found in the appellant’s “office” material which, if admitted in evidence, would have had a catastrophic effect upon the credibility of his defence. Unknown to CF, the appellant had filmed himself drinking urine, wearing CF’s underwear and urinating or masturbating into it. He had drafted and retained an internet profile in which he expressed his interest in “any kind of water sports, girls, boys, kissing, pissing on people, mouths or cocks, you name it, it really turns me on...I’ve always liked pussy and now I’ve started to like cock...” He had concealed a camera in the downstairs toilet of his home and had filmed a female using the toilet. The prosecution made an application to admit this evidence but it was refused on the grounds of the prejudice against the appellant which it would invite. There was, however, a risk that an additional and unjustified attack on the character of CF and DC Pope would result in the admission of that evidence, either as evidence of sexual interest in the male penis or as evidence of bad character. Nonetheless, Ms Dorrell did put to T and CF in cross examination the appellant’s case that she had coached T to make false allegations. Ms Dorrell was reasonably confident that if she went no further the judge would not permit the prosecution to adduce the further evidence. In this, her judgement was correct.

In his own evidence, however, the appellant made it abundantly clear what was his view about CF’s motivation. As we have observed there was a serious weakness in the appellant’s argument.

We have considered the other criticisms of Ms Dorrell’s conduct of the trial. We have found nothing of substance in them. It seems to us that Ms Dorrell’s advice to the appellant and her conduct of his defence cannot reasonably be criticised. She trod a fine line in the protection of the appellant’s own interests. The weakness in the appellant’s case lay not in her inadequate representation of him but in the unlikelihood of his theory. Even if there had been some justification for Mr Goldberg’s criticism of counsel we would have concluded that it had no significant impact upon the outcome of the trial because the appellant was given every opportunity, which he took, to advance his defence when he gave evidence. On the important matters he was not believed.

Mr Goldberg submits that in three respects the interview conducted by DC Pope and Ms Phillips failed to adopt the standards recommended by the Ministry of Justice guidance Achieving Best Evidence in Criminal Proceedings and, for that reason, should have been excluded. There was no attempt to establish that T knew the difference between truth and lies; the critical evidence was elicited by a leading question; and T was praised at the closure stage of the interview.

T was aged 3 years 2 months at the time when he was interviewed. The guidance, at paragraph 3.18, recommends that, while there is no legal requirement to do so, it is helpful to the court to know that the child was made aware of the importance of telling the truth. Conventionally, this is done by asking the child to respond to examples of telling the truth and telling a lie and emphasising the importance of telling the truth.

At paragraphs 3.61-3.64 the guidance advises that a witness’ response to a leading question may result in the question and answer being ruled inadmissible. The answer may be unreliable because the answer is implied by the question and may “significantly distort the witness’ memory in the direction implied by the leading question”. Such questions should not be asked except as a last resort, when all other methods have failed to elicit any kind of response. The guidance recognises that a leading question may prompt a spontaneous response which provides information significantly beyond the scope of the leading question and, for that reason, it may be acceptable.

At paragraph 3.85 the guidance advises that regardless of the outcome of the interview, every effort should be made to ensure that the witness is not distressed. On the other hand, praise or congratulation for providing information should not be given.

In view of T’s tender age, it was not essential, in our judgment, for T to be confronted with the concepts of truth and lies. It would almost certainly have confused him and would not have had the effect which the procedure was designed to achieve. We note that the intermediary had advised the judge that T’s attention span would not exceed 15-20 minutes and that simple questions were essential. The judge himself considered it inappropriate to engage T in a discussion of truth and falsehood.

The critical question, asked after several attempts had been made to engage T’s attention, was “Can you remember what happened to your winky?” This was undoubtedly a leading question but it was not so closed a question that it suggested what T’s response should be. It suggested only that something had happened to his winky. On the appellant’s case, the answer might have been, “Daddy tucked my winky”. The response, which we have seen to be immediate, unguarded, direct and clear, was “Daddy sucked it”. When he was asked whether he did anything to Daddy’s winky he replied, “Yes”. When asked what he did, he replied, “Suck it in my mouth”. He was asked what came out of his winky. He replied, “Milk comes out of Daddy’s winky”. In our judgment, this was evidence which the jury was entitled to receive. Both the response and the manner of its delivery had evidential value. We recognise that, in the absence of circumstantial detail in T’s evidence, the evidence of the mother as to the circumstances in which this account first emerged was of prime importance to a decision upon its reliability.

We do not regard the consoling words spoken to T at the end of the interview as significant to a judgment of T’s oral evidence at trial. He had been asked to show Ms Phillips on his teddy where Daddy’s milk went. T crawled with a box of crayons and toys behind a chair in the interview room and DC Pope observed that he had become “a bit sad”. He was told that he was a very good boy. We do not regard the compliment as significant.

The ABE interview was properly received in evidence. The judge pointed out to the jury the significance of the leading question and emphasised the importance of the issue of reliability.

We have found no grounds, either singly or cumulatively, for doubting the safety of the jury’s verdicts upon counts 1 and 2. There is no appeal on separate grounds against the convictions upon counts 3-17. Mr Goldberg’s argument was that if the convictions upon counts 1 and 2 were unsafe the safety of the other verdicts was also in doubt in consequence of the judge’s cross admissibility direction. Since we do not doubt the safety of the verdicts upon counts 1 and 2, the appeal against conviction upon all counts is dismissed.

It is submitted that a sentence of 15 years imprisonment was excessive. Mr Goldberg invites the Court to hold that oral penetration of a child aged three years is a less serious offence than anal or vaginal rape. At page 19, the sentencing guideline on the Sexual Offences Act 2003 identifies the extreme youth of the victim and a substantial age gap between the ages of the victim and offender respectively as factors aggravating the seriousness of the offence. At page 20, paragraph 2.11, of the guideline it is noted that the maximum penalty for the offence of rape, or assault by penetration, of a child under the age of 13 years is life imprisonment. At page 23, paragraph 2A.2, the guideline says, “It is impossible to say that any one form of non-consensual penetration is inherently a more serious violation of the victim’s sexual autonomy than another”. There is no distinction in the starting points for the penetration of the vagina, anus or mouth.

The starting point for an offence of rape of a child under the age of 13 years, when the offence is accompanied by abuse of trust, is 13 years custody; the range advised is 11-17 years custody. The judge sentenced upon the basis that counts 1 and 2 charged single and not specimen offences. He declined to treat ejaculation as an aggravating factor. Mr Goldberg points out that the appellant could have been charged under section 9 of the Act (sexual activity with a child), in which case the starting point would have been significantly lower (4 years). However, the guideline identifies the section 9 offence as one which is accompanied by ostensible consent. In our view, it would have been inappropriate to charge such an offence when the age of the victim was three years and no question of ostensible consent could arise. We recognise that there may be an overlap between the section 5 and section 9 offences when the victim is under the age of consent. However, in the present case section 5 was the appropriate charge and the judge was required to pass a sentence which reflected the appellant’s actual criminality.

The judge recognised that T’s young age may in years to come save him from intrusive memories of the abuse. We have our doubts about this because T was required to give evidence but we propose to be faithful to the judge’s basis for sentencing. Furthermore, while we accept that, in the case of a victim with comprehension, there is no reason why the penetration of the mouth should be treated as inherently less serious a violation than penetration of the anus or vagina, we think that for a child of tender years there may well be, and is here, a proper distinction to be made in the assessment of likely harm arising from it. Nevertheless, the judge had to sentence for two separate offences each of which was serious. While it was hoped that harm might be limited, the disparity in ages between victim and offender, and the gross abuse of trust of a father towards his infant son, rendered the appellant’s culpability particularly high. The judge expressly did not, as he could, impose consecutive sentences for the indecent image counts.

We have to consider whether, for the nature and range of offending which took place, a sentence of 15 years imprisonment in total was manifestly excessive. We accept the submission that these offences did not reach the seriousness of multiple offences of rape (the guideline starting point for which is 15 years). In our judgment, a sentence of 13 years imprisonment would have been adequate to reflect the seriousness of the appellant’s offending. We shall achieve that result by granting leave to appeal against sentence, and substituting for 15 years imprisonment on count 1 a sentence of 13 years imprisonment. The judge’s other orders will remain. To that extent the appeal against sentence will be allowed.