AT v R.

This is the judgment of the court.

This is yet another case coming before this court concerning allegations of what may be called historic sex abuse. There were two complainants, J (born on [a date in] 1969 and aged 40 at the time of the trial) and V (born on [a date in] 1971 and aged 39 at the time of the trial). J and V alleged – the allegations first being made, so far as the police were concerned, at the end of 2008 – that their father, the applicant AT, had sexually abused them over a significant period of time when J was aged between about 6 and 13 and V was aged between about 7 and 12: overall, as particularised in the indictment, between about 1975 and 1983.

What, in essence, was alleged by each of J and V was that, in this period, their father frequently summoned them separately to his bedroom, when his wife B was away. It was alleged that he would require each of them to take her clothes off and then masturbate him to ejaculation. Sensibly, these allegations were reduced to a few counts – count 1 (being indecency with a child contrary to a s.1(1) of the Indecency With Children Act 1960) relating to J and count 4 (again being indecency with a child contrary to s.1(1) of the 1960 Act) relating to V, those counts being specimen counts. In addition there were two further alleged matters: a specific count of indecent assault against J and, further, a specific count of rape of J. These were counts 2 and 3 respectively on the indictment.

There was a trial on these matters in the Northampton Crown Court lasting 5 days before HHJ Corrie and a jury in September 2010. Each of J and V and the applicant gave oral evidence, as did other witnesses. The applicant was convicted on all counts, unanimously on counts 1 and 4 and by a majority on counts 2 and 3. It is however relevant to note, in view of the submissions before us, that before this trial commenced an application had been made at the outset of a previous trial of AT to the effect that the proceedings be stayed on the basis that a fair trial could not be had by reason of the delay. On that occasion HHJ Harris QC had acceded to that application. This was on 26 October 2009. The prosecution appealed and that ruling was overturned by a constitution of this court on 18 March 2010. It was held that if such an application were to be made it should have been made after the prosecution evidence had been given; and thus that HHJ Harris’ ruling had been premature. Accordingly the case proceeded to a further trial, being the trial commencing on 20 September 2010 before HHJ Corrie. In the event, no application at that trial, whether at the close of the prosecution case or at all, was made for a stay of the indictment.

The applicant having been convicted, he was sentenced to a total term of 9 years and 9 months’ imprisonment. 8 years was imposed in respect of the rape count relating to J (count 3); 21 months consecutive was imposed in respect of count 4 relating to V; and on counts 1 and 2 (relating to J) concurrent sentences of 18 months’ imprisonment were imposed.

The applicant’s applications for leave to appeal against conviction, and for an extension of time, have been referred to the Full Court by the single judge. The single judge reviewed a number of the grounds advanced, indicating his view that they were not well-founded. However, he referred the matter primarily because of an application that fresh evidence be permitted to be adduced. In doing so, the single judge indicated that it was for the Full Court to determine the validity of all grounds sought to be advanced.

The applicant has, it would appear, continued strongly to protest his innocence since conviction. He has been supported and assisted by his second wife (Jean), who is a qualified solicitor. Fresh solicitors and counsel have been instructed and much further work undertaken. One of the features of the present application is that it involves substantial criticisms of trial counsel and solicitors formerly instructed. Privilege has been waived and this court has seen their responses. It has also been asserted that some of the difficulties said to have arisen arose because a two week trial was shoe-horned into five days as the trial judge was not readily available for a second week. However enquiries reveal that the trial was in fact fixed for three days and in the event lasted five days. Trial counsel for the applicant and Mr Mainds (appearing then, as now, for the Crown) have informed the court that they did not consider there to have been any undue time or other pressures imposed on them at trial.

The alleged sexual abuse was said to have occurred at the then family home in T. The applicant lived there with his first wife (B) and the two complainants, their daughters. The applicant worked as an electrician and B also worked, for a period, at a company called C Co.. It was more or less accepted that the applicant was hardworking and provided well for his family. It was also accepted that there were times when he was away from home on work, although the extent of his absences was very much in issue. The applicant was not able, by reason of the lapse of time, to produce any work records. In evidence, however, the applicant openly accepted that there were occasions when there was opportunity for him to abuse the girls and occasions when he was with them in the home when B was not there. It was, however, strongly disputed that he had done that; or that those occasions were as often as J and V were claiming; or that B was, for example, regularly absent on Sundays taking her mother back to Birmingham when (in particular according to J) much of the alleged abuse occurred.

Each of V and J was aware of the abuse of the other but, on their evidence, did not dare to complain or discuss it. J was to say she had thought it normal until she saw an Esther Rantzen programme on TV when she realised it was not. She thought she was around 12 or 13 then. V said her father had told her not to tell anyone. It was accepted that later on, when they were grown up, J and V did discuss these matters between themselves on a number of occasions.

As to Count 1, J said that the applicant would sexually abuse her on a regular basis, calling her into his bedroom and asking her to masturbate him for a number of minutes until he ejaculated. He had a towel with him. She was required to take her clothes off. She said it happened on random days in the week and on any Sunday when her mother was taking her grandmother back to Birmingham. She could not be precise as to when it started: at one stage she said she was about 6. She left home in about 1986 to live with her boyfriend’s family. She subsequently married and had three children [redacted]. She, as had V, had continued to see her parents – sometimes accompanied by J’s own children. Her parents in due course separated in about 1993. They were divorced in 1994.

As to count 2, she said she had nightmares and would go to her parents’ bed. She said that on one occasion after her mother B was asleep, A touched and rubbed her vagina. As to the specific count of rape alleged in Count 4 she said that this was when she was about 10 or 11. She was summoned to her father’s room and started to masturbate him. On this occasion, according to her, he then lay on top of her and penetrated her with his penis, desisting when she complained of the pain. In cross-examination she was strongly pressed about the fact that when she was first questioned by the police at the end of 2008 she had made no complaint of rape (as opposed to the alleged masturbation) even though asked. She only made this allegation at a further video interview a week or so later. On each occasion a female officer had been present but J was to say in re-examination that she felt more comfortable on the second occasion as it was the female officer asking the questions.

J’s evidence was to the effect that she had not at the time discussed with her sister V what was going on. Nor did she tell her mother at the time. She tried to block things out. She said what put it in her mind to complain was when she realised that A’s step-daughter had had a daughter in 2001 and in fact there was an occasion subsequently when she had tried to warn the step-daughter. She also said that she told her mother B of what had been going on at around the time when this grand-daughter was born. It was accepted that by this time she and V had discussed what had been happening and indeed each said that they had told their respective husbands.

In the course of her evidence, J said she had more or less stopped seeing her father in around 1998. At around this time, she said, she had refused his request for him to take her own three children for a stay in Blackpool. She was not prepared to let him be on his own with her young daughter, even if she had been prepared to accept such contact if others were present.

J was cross-examined vigorously and at length. She confirmed that she had always been very close to V, and had talked about many things with her, including this case. She was also in the course of cross-examination shown a card (apparently with a copyright symbol indicating that the card had first been published in 1985). This was, on its face, addressed at the top in manuscript “To Dad”. The writing is faint. It (in type) says:

“I really do appreciate you even if I don’t always show it…”

Then in manuscript:

“I love you more than you’ll ever know. You mean everything to me and no-one on God’s earth can take your place. Always yours. J XXXXX.”

There was also written on the card in a separate hand (the applicant was to say that it was written by him later, for trial purposes) “wrote by J 16.1.87”.

J in cross-examination strongly denied writing that card. It was put to her that she wrote it when pregnant with her daughter K – it is to be recalled that K was in fact not born until September 1988. It was also put to her that the applicant had changed his will in around 1998 to exclude her and V because of their bad relations with Jean and that she was upset about that. J said that she never knew of any will; had no idea what, if anything, her father owned; had no need of any of his money: and she was never angry about something of which she never knew. The defence case, as was put to J and V, was that one possible motivation for these complaints by J and V was their resentment at being excluded from their father’s will.

When V gave evidence, she also spoke of the applicant masturbating her in a similar fashion. Sometimes, she said, it was when B was on night shift. (Because C Co.’ evening shift had stopped in 1974, it was clear – as the judge pointed out in summing-up – that V in these respects was wrong as to at least some of the dates.) She said the applicant was always insistent that their mother not be told. She said that she never spoke to J about it at the time. It could have happened on 60 to 160 occasions. She said that there came a time when she “twigged” that it was happening to her sister J as well. She also recalled that there was one occasion when both of them were on the bed with no clothes on when J was masturbating the applicant and she (V) was looking at a mirror. She recalled that on another occasion she heard her sister refuse the applicant’s request also to summon a girl called Sarah H (who was staying overnight) when the applicant had summoned J to his bedroom. (J had not, in her evidence, spoken of either such incident.) She (V) also said that she had told a friend of hers called Joanne F what was going on when she (V) was around 10 or 11. But she did not discuss these things with her sister J until much later in life. They then talked about what had happened to them, particularly after the applicant’s step-daughter had a daughter of her own in 2001. She also told her mother at around this time.

In cross-examination, V denied that the trigger for making the complaint to the police in 2008 was by reason of the police investigating a recent incident involving V’s husband at the time – he had apparently assaulted the applicant, accusing him of being a paedophile. It was also put to her that she too had been angry about the applicant changing his will. She said that was “rubbish”. She did not know that he had anything to leave and she and her husband were well off anyway.

In the course of her evidence, V also said that at some stage before she married in 2001 she spoke to the applicant – he complaining about J not letting him take the children away – and she put it to him that was because of what he had done when J and V were growing up. He, according to her, went silent and never had further contact with her.

Evidence was given by B. She said that there were many occasions when the applicant was on his own in the house with V and J. She, among other things, denied that the card was from J or that she had seen it in the house. She also denied pressing the applicant, after the divorce, to make a will making provision for J and V after he married Jean, or having any thoughts about it. She also said that she was told in around 2001 by V and J together of the alleged abuse and sought to confront the applicant with it, but he did not respond.

Joanne F gave evidence. This was to the effect that V had, when she was a child, told her about what the applicant was doing. She said that she (Joanne) had at the time told her own mother, Rita. She did not know why, if it was the case, her mother had, as it was suggested, not made any complaint herself to B or to the applicant himself. She further said that the applicant had once accosted her when she was at their house, telling her forcibly to keep her mouth shut. She denied that she was lying or fantasising in her evidence.

When the applicant gave evidence, he denied all the allegations. He said that they were made up and were false. He said, among other things, that it was not right that B was regularly away on Sundays returning her mother. Further, he often worked away from home at weekends himself in his job as an electrician. He said that the card had indeed been sent by Jane and he had kept it and displayed it in a frame. He had written the date of 16.1.87 on it later (for the purpose of the proceedings): although he had some difficulty linking that date to J’s pregnancy, given the date of K’s birth. As to the will, he said that he had made and then changed his will from time to time, excluding J and V; but he said that he was unable to produce any such will, in spite of having tried to find it. He also said that he jointly owned several properties with Jean.

Various other individuals gave evidence for the defence. A number spoke warmly of his character. One (a Mrs O’Boyle) gave evidence – not challenged in cross-examination – that B, then a work colleague, had, after the divorce and when the applicant had married Jean, been very angry that the applicant had not made a will providing for V and J and told her that she had confronted him on this. Mrs O’Boyle also said that the applicant had been away from home a lot on work. She (like other witnesses) said that she never noticed anything untoward in the family dynamic.

The proposed grounds of appeal are many and varied. They have been developed very fully and very skilfully by Mr Christie QC on behalf of the applicant (he not having appeared at trial below). In addition much work has been undertaken by the fresh solicitors instructed since trial.

The grounds fall under three broad heads.

We will deal with these submissions in turn.

All three members of this court were somewhat disconcerted at finding that they were being asked in effect to rule that the previous decision of the court of 18 March 2010 was wrong in law. If such was to be found, it was a matter for the Supreme Court if permission had been sought and granted (no such application had been made). Short of that, the matter would seem to be res judicata.

The way, however, in which Mr Christie sought to put his argument came to this. When he gave his initial ruling, Judge Harris QC had considered the application for a stay carefully. He had ruled that this was an exceptional case. He had considered the grounds of prejudice arising from the long delay advanced by counsel then appearing for the applicant (different counsel again: not subsequent trial counsel) as showing that the applicant could not now fairly be tried. Amongst other things, these were the absence of the applicant’s work records; the death of various potential witnesses, including the mother-in-law; the absence of B’s work shift notes; and the unavailability (through death or difficulty in location) of, for example, babysitters and of friends of J and V who had visited the house. Judge Harris concluded that “with such attrition of evidence” it was established on the probabilities that to proceed with the trial would not be fair.

On appeal by the prosecution, the Court of Appeal (Moses LJ, Rafferty J and Maddison J) set aside the ruling: [2010] EWCA Crim 630. What the court decided was that, while Judge Harris may have accurately summarised the difficulties for the applicant “the force and cogency of them cannot in our judgment properly be determined until the precision with which the complainants give their evidence or not can be assessed”. Moses LJ, giving the judgment of the court, went on to hold that “this was not an exceptional case where it was plain from the start that no fair trial was possible”. The court, having referred to Smolinski [2004] 2 CAR 40 and Anthony B [2005] EWCA Crim 29, indicated that Judge Harris had been wrong to question the “principle” that in most cases the judge should wait until he had heard all the evidence, or at least the evidence of the complainant, before he can judge whether or not a fair trial is possible for the defendant. Thus, so the court decided, Judge Harris had, in the present case, been premature in making his ruling as he did. The court did not rule out the prospect of such an application succeeding after evidence had been given.

Mr Christie says that the approach adopted by the courts generally at that time has been overtaken by the subsequent decision of another (five judge) constitution of this court in the case of F(S) [2011] 2 CAR 28. That held, putting it shortly, that an application to stay of this kind ordinarily should be heard and decided before evidence was adduced, unless there was a specific reason to defer it. Mr Christie thus submits that, that decision having established the law as it should be, and, in effect, having marked a change in the previously understood legal position, it can be seen that Judge Harris’ approach had, after all, been justified in deciding the matter before evidence was heard: and there then could have been no proper basis, on an ordinary appellate approach, of interfering with Judge Harris’ evaluation of the position that a fair trial could not be had or as to his exercise of discretion to order a stay.

This is untenable.

One obvious point is that Moses LJ did not decide that the only proper outcome was to refuse the application for a stay. On the contrary, the court allowed the appeal because, in the circumstances of the case, the application had been premature. Such a ruling by the Court of Appeal thus gave rise to no irreversible position for the applicant – in that he was free to make an application for a stay at the further trial if the evidence given warranted it.

It is to be noted that the reason given by Moses LJ in fact broadly corresponded with one particular example given by Lord Judge LCJ in giving the judgment of the court in F(S). In paragraph 45 of the judgment (in F(S)), it was envisaged that in the case of the absence of long-lost evidence such as institutional records “the evaluation of the significance of the absence of such records may best be undertaken at the close of the Crown’s case”. That, in substance, had been precisely the view taken by the court on 18 March 2010. It is also to be noted also that the Lord Chief Justice was at pains to stress that the court in F(S) did not propose to be “prescriptive”. It is yet further to be noted that it was affirmed in F(S) that it would only be in “exceptional cases” that an application for a stay on the ground of delay would succeed, even where the precondition of a successful application (serious prejudice) may have occurred: paragraph 45 of the judgment.

All that of itself disposes of the point. We in any case still have the greatest difficulty in thinking that it was even open to Mr Christie to raise this ground. The point had been judicially decided by the Court of Appeal on 18 March 2010, when it had set aside the decision of Judge Harris. Mr Christie could cite to us no authority under the law of England and Wales to justify the particular course now proposed. He did refer us to a decision of the Court of Appeal of Northern Ireland in the case of Walsh [2007] NICA 4, a case concerning reopening of an appeal against a conviction for possession of an explosive substance. The case alluded to there being a power, exceptionally, to reopen an appeal in circumstances where not to do so may make an injustice likely to occur. (This was, we add, in the context of a case where the CCRC had declined to refer a conviction for a second time.) So far as the law of England and Wales is concerned, however, the approach suggested by Mr Christie would, in cases where there has been a subsequent change in the law, tend to run counter to the general approach indicated in other, analogous, contexts such as Penfold (1988) 37 CAR 15 (second appeals) and Cottrell and Fletcher [2008] 1 CAR 7 (extensions of time).

Mr Christie sought to provide reassurance that it would only be in an “exceptional” case that an application such as his could be made or entertained. As to that, however, we all have experience of the number of legal contexts whereby what has started out as being reassuringly required to be “exceptional” has become more or less a norm a few years later: or, at all events, has spawned great numbers of applications asserted to be “exceptional”. Be that as it may, if exceptionality is required (whether by way of test or by way of description of the situation in which the jurisdiction contended for may be exercised) then it is impossible to identify any such exceptionality here.

We would also point out that the CCRC is available to deal with appropriate cases of potential real injustice where all appeal routes have thus far been exhausted. It would simply tend to complicate the exercise of their functions if there was doubt raised in any particular matter as to whether all appeal routes had indeed been exhausted, before the matter was referred to the CCRC, on the approach sought to be adopted in this case.

We say as much as we have with a view to lending no encouragement whatsoever to the making hereafter of further applications of this present kind in comparable situations.

Mr Christie then says that in any event trial counsel was gravely at fault in not pursuing an application for stay at the close of the prosecution case. Had she done so, he says, she should and would have succeeded.

There is an unhappy difference of recollection between the applicant and trial counsel on this. He says that he had wanted and expected such an application to be made, and that had always been envisaged before this trial (especially when such an application had succeeded before Judge Harris). She, on the other hand, says that she took the view that such an application would not prosper and, after discussing it with the applicant during the trial, he agreed it should not be made.

We do not need to adjudicate on this factual dispute (Mr Christie did not press for counsel to give oral evidence before us and this court decided that it was not necessary for her to do so). What we do need to adjudicate on is whether, if such an application had been made, it should and would have succeeded. We have carefully considered the points made. We note, among other things, that there was (unsurprisingly) no real specificity at all as to dates in the evidence of the complainants. Looking at matters overall, and unhesitatingly accepting that there was potential real prejudice to the applicant arising from the very long delay, we conclude that the circumstances did not justify the grant of a stay. If that means that we depart from Judge Harris’ previous evaluation (made prior to any evidence) that this was an exceptional case, then so be it. We do not think that this was an exceptional case justifying the grant of a stay. The trial process was capable of dealing with the difficulties raised for the defence.

Mr Christie did also submit that, even if such an application would not have succeeded, still it should have been made so as to provide the applicant with, as he put it, “an important opportunity to highlight key points of prejudice which needed to be addressed in the summing-up”. That is wholly misconceived. It would be little short of an abuse of the process to make a stay application of this kind simply for such a collateral purpose. In any event, the proper time and place for highlighting such matters is in discussion between counsel and judge before speeches, followed by the speeches and the summing-up themselves.

No stone has been left unturned in seeking to marshal further evidence in the aftermath of the applicant’s conviction: in these respects the applicant’s wife, Jean, has in particular been redoubtable on his behalf. This court has considered the proposed fresh evidence in the first instance de bene esse.

The card

As we have noted, J flatly denied ever having written the card (and B’s evidence was that she had never seen it in the house). There had been no prior notification in any defence statement or otherwise on behalf of the defence that this card existed prior to it being deployed in cross-examination. It may be that it was assumed that J would accept having written it: if she had accepted that, whether it would have been of very great moment may be queried, given that so many of these cases involve mixed emotions over the years. But at all events Mr Mainds – while himself having no expert evidence at trial to the effect that the latter was, in effect, forged – cross-examined the applicant on the footing that the card was a fabrication. He also, understandably, made some play of the date subsequently written on it by the applicant.

After trial, the applicant sought expert handwriting evidence. An initial report was obtained on his behalf indicating that there was “moderate” evidence that the handwriting was that of J, sufficient to establish that on the balance of probabilities. The Crown then commissioned its own report. That, when provided, was to the effect that the evidence was simply inconclusive. Shortly before the hearing, the experts came to an agreement that the evidence was inconclusive.

That agreement inevitably cut a good deal of ground from under Mr Christie’s feet. Indeed it makes production of this expert evidence essentially pointless in advancing the applicant’s case. He nevertheless changed tack and sought to maintain that the applicant’s own credibility on this had been affected, given that at least there was and is no expert evidence to show that the card had indeed been fabricated. He made other points. All this, however, seeks to maximise now a point which was, in our view, of subsidiary importance. The jury had the evidence of J that she had not sent the card and the evidence of the applicant that she had. The jury could, if they wished and felt able to, make their own assessment of the point, for what it was worth. Moreover, in his summing-up the judge described the issue of the card “as one you may or may not find it necessary to decide”. He said:

“Is it a genuine card or not, or are you simply not able to decide? Whatever its status, does it affect and, if so, to what extent, the view which you have formed about the central core of the allegations made?”

Mr Christie complained that was wholly inadequate and gravely down-played an important point. We, to the contrary, take the view that those were wise and sensible remarks, given the circumstances.

We have dealt with this point at some length because feelings seem to have run high on it. But we decide that this fresh evidence should not be permitted to be adduced at this stage. We have had regard to the matters set out in s.23 of the Criminal Appeal Act 1968 in this regard (noting, of course, that those matters do not delimit the circumstances in which fresh evidence may be permitted to be adduced). We accept that the expert evidence could not, with reasonable diligence, have been adduced at trial. But, as we have explained, it carries matters no further and does not afford a ground for allowing the appeal. We decline to admit it.

Wills

It will be recalled that the applicant had suggested that one motive for J and V fabricating these allegations was through anger and resentment at being excluded from his will. (Of course – as the judge expressly reminded the jury in his summing-up – it was not for the applicant to prove any such motive.) It may perhaps be queried just how plausible the suggestion was given that the complaints were made to the police in late 2008, a significant number of years after – according to him – they had been made aware that they had been cut out of his will.

The applicant could produce no will, or copy of a will, at trial. Mr Mainds saw fit to cross-examine him at length on this, suggesting that there never had been any will made, let alone one changed so as to exclude J and V. The applicant denied this. He said, as we have recorded, that he had tried to obtain his will but had been unable to locate it.

Since trial, yet further investigations have been made on behalf of the applicant. Various draft and copy wills have now been located: and these indeed include changes so as to exclude or limit the entitlement of J and V from inheriting. Thus the cross-examination of Mr Mainds – albeit unbeknown to him at the time – had been on a mistaken basis.

Mr Christie submits, this being so, it would be a denial of justice for this fresh evidence not to be admitted now. Indeed he goes so far as to say that, if admitted, this fresh evidence should of itself cause the appeal to be allowed.

Of course we can see an appeal to the merits in this evidence being admitted: the applicant had been cross-examined on the wrong basis, in a way potentially bearing adversely on his credibility. But matters cannot be resolved quite so simply. We can see no reason why, with reasonable diligence, these wills or copy wills could not have been produced at trial. No reasonable explanation for that failure has, in our view, been provided to us. It had been the applicant’s own case that the change in wills may have been a motivation for fabricated complaints. This was, moreover, a second trial – there had been very ample time to search the will or wills out. Further, it has transpired that in July 2008 the applicant had corresponded – albeit not in connection with these complaints, which had not then surfaced – with a firm of solicitors about his previous will; and it was that firm which, after further communication after trial, led to the location of the various copies. So the applicant could have identified these solicitors and pressed them much earlier. In all the circumstances, and looking at the matter overall, we refuse leave to adduce this evidence.

However, since feelings have apparently run high on this point too, we in any event wish to make clear that (as with the card) we do not think this point would have had anything like the importance Mr Christie would now like to ascribe to it. In itself, the suggested motive was not, as we have said, very likely. In any case, both J and V said they did not think that the applicant had any property of any value to leave and, in any event, they did not want or need his money – they had ample of their own. That was for the jury to assess. As to the possible effect on the applicant’s own credibility, we do understand the point. But, even there, it may be noted that in his summing-up the judge’s remarks about the will were brief (in effect, simply indicating that was the applicant’s suggestion for the fabrications): the judge did not in any way direct the jury in terms to have regard to the absence of production of any will as material to the applicant’s credibility. One may perhaps deduce that the judge, at least, – and in our view understandably – had formed the view that the issue was not one requiring aggrandisement.

Home video

Since trial, the applicant’s wife has found a home video dating back to 1992 in the loft. The circumstances are such that, we are satisfied, it could not with reasonable diligence have been adduced at trial.

But it takes matters no further. It shows the applicant, shirtless, playing in the garden with J’s children and with the granddaughter on his knee. But J and V were present. It was common ground they had had some contact (sometimes with the children) with their father at this time. Their case was that they would not trust him to be with a granddaughter on his own. This video adds nothing of any significance.

Rita R

It will be recalled that Joanne F, when she gave her evidence about V’s complaint to her – potentially very important evidence indeed for the prosecution case, if accepted by the jury – said that she had also told her own mother, Rita. Rita did not give evidence at trial.

Since trial, an investigator – a retired experienced police offer – on the instructions of Jean interviewed Rita on 24 November 2010. Apparently based on that interview, a draft statement of Rita was prepared dated 1 June 2011. It is unsigned. It includes, as typed, a statement by Rita that she has “no recollection” of being told by her daughter Joanne of V’s complaint about the applicant sexually assaulting J and V. The defence would wish to say that if Joanne’s mother has no recollection of being told, then (it can be inferred, so it is asserted) she was not told by Joanne: she would not have forgotten.

When interviewed, Rita told the investigator that she did not want to be involved and, according to him, that she did not wish publicly to say that she had no recollection of what her daughter had said. By subsequent letter of 19 June 2011 to the applicant’s solicitors Rita stated that she did not wish to sign any witness statement and was not prepared to be associated as a “witness to the case for or against [the applicant]”.

This witness statement has no evidential status. Rita has refused to sign it. She is not afraid to give evidence: she is just not prepared to. Mr Christie then formally submitted that it could be admitted under s.114 of the Criminal Justice Act 2003. But it could not possibly be right, in the circumstances, to give leave to adduce it under that gateway. Mr Christie did also then ask this court to summons Rita. We declined to do so.

There is another fundamental objection. The investigator’s report further shows that the applicant’s trial lawyers had themselves approached Rita with a view to her giving evidence at trial; and she had likewise declined. She was not issued with a witness summons at that time. It would be wholly unjust, in our view, to permit this (unsigned) statement now to be adduced in such circumstances.

Mr Christie, however, then – in a series of further criticisms of trial counsel’s conduct – criticised trial counsel and the solicitors then acting for not summonsing Rita to the trial. Had they done, he said, she may well then have co-operated (the inference being that she would have made a statement when at court and given evidence to like effect as contained in the recent unsigned statement). He asserted that that is what he would have done. He said that the applicant should not be prejudiced by trial counsel’s failing in this regard.

This is an unfair and unworthy criticism of trial counsel and solicitors. The dangers in calling an unwilling witness are usually apparent. Counsel at that time had no means of knowing what Rita might – even prospectively – say; and we also do not know what were the applicant’s instructions about Rita (for example whether she was perceived as friendly or hostile to him). If Rita were summonsed and were (as was possible) to say in evidence that Joanne had told her, that would have been most damaging. Mr Christie’s position is based on speculation: itself founded, moreover, on what the investigator has since reported and as was not known to trial counsel at the time. It was, we consider, a reasonable and proper decision not to call Rita at trial.

We decline to permit this unsigned statement to be adduced in evidence on this appeal.

Further witnesses

Fresh evidence is sought to be adduced from further witnesses: Mr Newey (now deceased); Mr Higley; Ms Braggins (who had at the time indicated unwillingness to attend the trial); Mr Bacon and Mrs Smith. All had provided witness statements prior to the trial. None were in fact called. Here too trial counsel is criticised. Her written response is to the effect that she did not consider it necessary to have more witnesses, as the points they made were in essentials covered by other evidence.

We have considered those statements. Having considered them, we take the view that counsel’s assessment was one properly open to her. Much of the prospective evidence, in truth, was in the nature of character evidence, of which there was already a quantity adduced. Mr Christie went through the statements closely, seeking to highlight additional factual points supportive of the applicant’s case. But evidence is not a numbers game: and the assessment that there were before the jury sufficient other sources of such evidence on the various points was proper.

In some respects, Mr Christie’s analysis of this evidence was overstated in any case. Thus he ascribes to Mr Higley (who first, according to his statement, met the applicant on a job in 1981/82) prospective evidence that it was in or from 1981-1982 that the applicant was regularly working nights and Sunday evenings. But Mr Higley in fact in his statement gives no dates for that; and understandably in his statement says he could give no details. We need not specifically rehearse all the other points sought to be raised. There is, we consider, no proper basis for permitting any of this evidence now to be adduced when it was available at trial and the informed decision was taken not to adduce it at trial.

We should, however, say something about Mr Newey. He was an old and longstanding friend of the applicant. He had provided a statement prior to trial and had himself attended trial with a view to giving evidence. To a great extent, judging by that statement, his evidence would have added little. But in some respects it could have assisted the applicant: for example he says in his statement that J had permitted the applicant to take the grandchildren out (whether on his own is not quite specific) and only stopped allowing him to do so when he married Jean, whom she did not like. There were other points too. Mr Mainds frankly told us he would not have agreed Mr Newey’s evidence if asked to do so: which connotes that it was perceived by him as potentially helpful to the defence.

Mr Newey did not give evidence on the day he attended at trial, as he had to leave for a hospital appointment. He was then told that evening through his wife that he was not required, even though he was apparently willing to attend the next day. Trial counsel, from recollection, says this was agreed with the applicant. He wholly denies that: he says that he wanted and expected Mr Newey to be called. Mr Christie points, in this context, to two manuscript notes on trial counsel’s copy of Mr Newey’s statement. One says “accept not to call – not useful. 21/9/2010”. The other says: “Change mind – call him”.

We cannot resolve this present dispute. But even accepting what the applicant says, it does not really advance matters. Mr Newey’s evidence, as contained in his statement, was not, in our view, likely to be of any real significance.

Since trial, Mr Newey was – before his death – interviewed further by the applicant’s current solicitors and the interview was tape recorded. In what Mr Newey now is recorded as saying, he goes far further than what he had said in his original statement, in a number of respects. Moreover, there are indications that prior to this interview he may have been primed (not, of course, by the most reputable solicitors concerned) as to what he might be asked and say: for example, he volunteers – now years after events – some quite specific evidence about the card and what it said and where it was in the applicant’s house. Be that as it may, we see no proper basis for permitting this taped interview to be admitted in evidence now. However regrettable the breakdown in communication between trial counsel and the applicant, we do not think it right to give leave now to adduce the earlier statement either: but in any case, as we say, we do not think that evidence likely to have been of any real materiality. Nor in any case do we think that the subsequent tape-recorded interview (if permitted to be adduced) would afford a ground for allowing the appeal.

“That’s Life”

The final aspect of the proposed fresh evidence relates to the Esther Rantzen programme: by reference to which, as will be recalled, J said she realised what had happened was wrong. This is, unfortunately, yet another matter now blown wholly out of proportion.

Trial counsel had at the time of trial done some informal research. This suggested that the relevant date was 1986 – if so, J would have been 17 and that would not fit with her evidence that she was around 13 at the time she said that she realised that had happened, was wrong. Counsel drafted an admission in the course of the trial. Amongst other things, this stated that a programme called Childwatch which dealt exclusively with the issue of child abuse was aired as part of the “That’s Life” series presented by Esther Rantzen in 1986. To get this in evidence, she in practice needed Mr Mainds’ agreement. He was only prepared to agree it if a further admission was included to the effect that “That’s Life” was aired on Sunday nights prior to 1986 [as indeed it was] and that it was accepted that some segments of that programme “may” also have dealt with the issue of child abuse. To this the applicant’s trial counsel in turn agreed: otherwise she would not have secured the first admission.

It is now said that subsequently obtained fresh evidence from the BBC, now sought to be adduced, does not reveal any instance of child abuse being discussed on “That’s Life” prior to 1986. The first identified reference to child abuse on “That’s Life” was a broadcast in February 1987 and on “Childwatch” in October 1986. However, we note that in providing that information, the BBC in terms says that it is dependent on the cataloguing, which cannot be guaranteed to catch every item broadcast. That being so, the second admission – with its use of “may” – cannot be said to be inaccurate.

The reasons for wanting the first admission are understandable. Agreeing the second admission to secure that was also understandable. We deprecate the attempt now to seek to reopen an admission agreed at trial. We refuse leave to adduce this evidence. In any event, the importance now sought to be attached to the point – given the general vagueness as to dates at trial – is completely overstated.

Blackpool

Some reliance was initially sought to be placed on the property in Blackpool having been acquired – as proposed fresh evidence would show – in 1999 rather than in 1998 (when the proposed visit to Blackpool was placed at trial). There was and is nothing in the point and Mr Christie abandoned his application in this regard.

We have dealt with the fresh evidence at some length out of deference to the strenuous investigations made and Mr Christie’s elaborate arguments on the points. But in the overall outcome we are not prepared to entertain as admissible fresh evidence what is sought to be adduced – repeating, furthermore, that in any case such items of evidence, whether taken individually or cumulatively, would not begin to have the impact the applicant would now seek to ascribe to them.

We turn, finally, to the criticisms of the summing-up. We grant leave and the extension of time sought in respect of these grounds.

In view of the points raised, we enquired of Mr Mainds about discussions between counsel and judge before speeches. Mr Mainds had no recollection of the contents of such discussion but is confident, knowing the practice of the trial judge, that there was one. Counsel then appearing for the applicant has, we were told, no recollection either way. Certainly there should have been one: and we are prepared to assume there was. Even so, we would deduce that it must have been relatively brief. That, in a case of this kind, was unsatisfactory. As will be gathered from our comments hereafter, there cannot have been – as there should have been – a proper consideration of the appropriate directions to be given on matters such as (in particular) cross-admissibility.

We can dispose of one point in short order. As we have said, in her initial (and not properly noted) police interview – or in any previous discussion with the police – J, although given the opportunity to do so, did not say that she had been raped. She first said this only a week later, in her second ABE interview. Clearly that was potentially a powerful point in favour of the defence. This was duly referred to by the judge in summing-up and further amplified by him on request by trial counsel. It is now said that the point was insufficiently summed up. Indeed, it is said that it was erroneously summed up. In re-examination, J had suggested she felt more able to raise the alleged rape at the second interview when a female police officer was asking the questions, whereas (she had indicated) it was a male officer asking the questions at the first discussion. In fact, it was also the female officer asking the questions at the first interview, albeit the male officer was then present.

This point too has been completely overstated. As Saunders J pointed out in argument, at the second interview J was being questioned in the special interview room by the female officer on her own (the male officer was outside the room). That distinguishes it from the first interview. J had in any event in cross-examination given other explanations for not mentioning the alleged rape in the first interview. The judge’s summing-up was, overall, not misleading on this issue in any material way: and certainly the fact – important to the defence – that the allegation had not been made by J in the first interview emerged with clarity. These were matters for the jury to assess.

The real complaint, however, is as to the asserted inadequacy of the summing-up on delay, cross-admissibility and collusion. The arguments raised merit the closest consideration. A principal rationale for (generally) declining to order a stay in cases of this kind is precisely that prejudice – both actual and potential – to a defendant is capable of being dealt with fairly by virtue of the trial process. A crucial element in this trial process is an appropriately full, fair and balanced summing-up on such matters.

When he came to the issue of delay, the judge emphasised to the jury that it was “an important feature. All these directions are important, but delay is something that must have occurred to you as a feature which merits serious attention”. He drew attention to the delay span of 27 to 35 years and said “There may be – and you must appreciate this – because of that delay a danger of real prejudice to this or any other defendant and that possibility must be in your minds when you decide whether the prosecution has made you sure of his guilt”.

In these kinds of cases, we observe that delay in fact has two facets which should normally carefully be distinguished in a summing-up. The first is a consideration of why a complainant should wait so long before making allegations of sexual abuse (if true). The second is the prejudicial impact on an accused occasioned by reason of the very delay in the complaints being made.

The judge clearly appreciated this. He went on first to deal with the issue of why these matters did not come to light sooner. He summarised the explanations of J and V on this (inevitably also, in this context, referring to V’s complaint to Joanne, if the jury accepted that evidence). The judge dealt with the point concisely – he certainly cannot possibly be said to have over-elaborated in favour of the prosecution the reasons why J and V had not come forward earlier with their complaints (or indeed general reasons why alleged victims of sexual abuse often may not make complaint at the time).

The judge then turned to the second aspect. What he said was this:

“However, the second matter that you should consider in the context of delay is that memories can fade with the passage of time. Witnesses cannot be expected to remember with complete clarity events from many years ago and tricks on memories can be plagued by the elapse of time. On the other hand, it could be said that if these things alleged did happen, they are not readily forgettable in the mind of a little girl and into adulthood. Thirdly, you should make allowances for the fact that from the defendant’s point of view, with such a long gap of time it may make it more difficult for him to answer the allegation – because it is so long ago, has it had the effect of depriving him of the opportunity of obtaining relevant evidence? It is not an alibi case – he could not put forward an alibi, even if there was one – and in a case like this, it is not a bank robbery on a particular date in say, Newcastle in 1962. It is quite possible that in that sort of case relevant evidence might have disappeared or an alibi witness or two might have dies or become untraceable. This is a case, particularly in the examples of counts one and four, where the family was living together and where there are allegations that the event happened repeatedly. It is not disputed by the defendant that there were occasions when he had the sole care of his children and therefore would have had the opportunity, although he denies taking it, to commit these offences. However, if you do come to the conclusion that the delay was understandable, but if you further decided that because of it the defendant has been placed at a real disadvantage in putting forward his case then you should take that into account in his favour when deciding if the prosecution have made you sure of his guilt. However, I repeat that this is not a single incident which is alleged years ago in the case of counts one and four; it is events occurring in a household, if they occurred.”

He then immediately followed this by reference to the applicant’s previous good character.

Mr Christie submits that such direction was entirely inadequate and not properly tailored to the case. He also said that such points as were made were almost immediately qualified or downplayed by comments prefaced by: “on the other hand”; “it is not an alibi case”; “however” and so on. He said that this in effect replicates the approach deprecated in cases such as Percival [1998] 95 LSG 25 and Small [2008] EWCA Crim 2788.

We do not agree with this. The judge did not, objectionably, qualify the directions as to the prejudice caused to the defence by referring to the difficulties caused to the prosecution (the “two sides to the coin” approach). He made clear the issue of prejudice to the defence, emphasising in this context the burden and standard of proof applicable to the prosecution. His point about this not being an alibi case for one specific matter was justified, in circumstances where the evidence on dates was not very specific and where the applicant had expressly accepted in evidence that there had been occasions when he had been on his own with his daughters, with opportunity to do what had been alleged (albeit there was, for instance, a major issue about the frequency of such occasions and about Sundays). In our view, the directions also sufficiently fulfilled the requirement of Percival of stressing the burden and standard of proof in this context. In W [1999] 2 CAR 201 a constitution of this court emphasised that, in cases of delay, convicted defendants should not take it that “an appeal would succeed if some omission or some lack of emphasis could be pinpointed in the trial judge’s direction”. In M [2000] 1 CAR 49 another constitution of this court stressed that Percival did not afford a “blueprint”.

Many of the relevant authorities are helpfully summarised in the recent decision of a constitution of this court in PS [2013] EWCA Crim 992. Fulford LJ, in giving the judgment of the court, helpfully summarised the position, albeit by reference to the facts of that case, as follows:

“35.

As it seems to us, the direction to the jury on delay, given the facts of this case, should have included the following elements:

i)

delay can place a defendant at a material disadvantage in challenging allegations arising out of events that occurred many years before, and this was particularly so in this case when the defence is essentially a simple denial (the defendant was saying that he had not acted as alleged);

ii)

the longer the delay, the more difficult meeting the allegation often becomes because of fading memories and evidence is no longer available – indeed, it may be unclear what has been lost;

iii)

when considering the central question whether the prosecution has proved the defendant’s guilt, it is necessary particularly to bear in mind the prejudice that delay can occasion; and

iv)

a summary of the main elements of prejudice that were identified during the trial.”

In the present case, the judge’s directions sufficiently covered, in our view, the first three elements. But Mr Christie complains that the fourth element – a summary of the main elements of prejudice identified at trial – was not satisfied by his summing-up.

In our view, there is force in that. A potentially important part of the defence case, by way of example, was that J (and V) were wrong in ascribing the abuse as occurring regularly on Sundays: that case, if right, potentially controverted their evidence and thence their credibility. And it is true that the judge, in this regard, made no reference to the loss of the applicant’s work records by reason of the delay. It would, no doubt, have been better if he had done so. It is, often, not desirable to provide simply a generalised formula as to possible prejudice by reason of delay – the formula should, where appropriate, be applied to the particular facts and particular prejudice identified as arising. But it is important not to be over-prescriptive, in the circumstances of this case. The absence of such a specific direction on the point about the records, and other potentially available evidence no longer available – of the kind previously identified by Judge Harris – would have been well appreciated as arising by reason of the great lapse of time. We also have little doubt that the question of delay would have been highlighted by trial counsel in her closing speech (which, we were told, was a full and forthright speech) in what was a short case. Looking at the position overall, we take the view that, while the summing-up should, to advantage, have alluded to the specific elements of prejudice said to have been occasioned to the applicant by reason of the delay, the failure to do so was not such as to render the convictions unsafe.

We then turn to the directions on cross-admissibility and collusion. It is a feature of the judge’s summing-up that it contained no directions on cross-admissibility at all. It may well be that it was not suggested in pre-speech discussions that it should. What the judge at this stage said was this:

“Dealing with the counts, there are four here and you must consider the case against and for the defendant on each count separately. They are different, particularly in the cases of counts two and three, the individual events, although there is of course a similarity between counts one and four because each daughter is saying that the father quite separately did the same thing to her. However, that does not relieve you of your duty to consider all the counts, including those, separately. The order in which you consider the counts is of course entirely for you. You might find it convenient to deal with counts one and four first and then go back to two and three or you might not. It is not for me to tell you, only to make suggestions, which may or may not find favour and are intended to assist you.”

The judge thus gave a separate treatment direction. But his invitation to “deal with counts one and four first” at least are suggestive of a cross-admissibility approach. We gather that was also the suggestion of Mr Mainds in his closing speech (albeit no specific application had been made at any stage under s.101 of the Criminal Justice Act 2003); and, further, the judge later gave a direction on collusion (see below). We think, given such circumstances, that it is appropriate for us to approach matters on the footing that the jury would have pooled the evidence of J and V, at least in considering counts 1 and 4. At all events, the similarities in what J and V were saying had happened to each of them were plain. Each said that their father summoned each of them to the matrimonial bedroom when their mother was out of the house; required them to undress; required them to masturbate him to ejaculation. Furthermore, and as a distinct matter, V (although not J) had said that she recalled being present with J on the bed when J was required to masturbate the applicant and further V (although again not J) said that she recalled the alleged incident concerning Sarah H.

It is not the position in sex abuse cases that where two (or more) siblings have had the opportunity to discuss matters (and, indeed, have discussed matters) between themselves, then necessarily their evidence can never be pooled or treated as supportive, the one of the other. On the contrary, it depends on the circumstances of the case: see, for example, PR [2010] EWCA Crim 2741.

In a sense the lack of express cross-admissibility direction, given the circumstances of this case, potentially told against the prosecution: not the defence. Nor did Mr Christie submit to us that the evidence of J and V was not capable of being treated as cross-admissible. But that still inexorably leads to the issue of collusion/contamination. The judge gave no direction on this at this stage of the summing-up. What he said on the point was held back to the very end of the summing-up. He there said this:

“Therefore, ladies and gentlemen, there is the evidence. In a moment, hoping that there may be a jury bailiff, I shall ask you to consider your verdicts. Before I do that, bear this in mind. As I have said to you, it was a long time ago. You have on the one hand, two adult women making serious allegations and their father denying them. You may or may not wish to ask yourselves whether those are the sort of allegations which would readily be forgotten if they occurred or whether they have been or may have been fabricated or imagined. Have the two daughters put their heads together? Have they colluded to make up a false story or have they misremembered or misunderstood or fantasised things which simply never occurred? As I said to you earlier, it is only if you are sure in relation to each count or any of them that they are telling the truth and that their father is not that you could convict: otherwise you could not be sure.”

Mr Christie said that this was “cursory” and wholly inadequate and in the wrong place. Mr Mainds said that this was “succinct” and adequate and so placed at the end of the summing-up as to be (in his phrase) “ringing in the jury’s ears”.

Mr Christie submitted that the judge should have deployed, if not in full then in substance, the directions proposed either in the “old style” or in the “new style” directions provided by the Judicial Studies Board or Judicial College. In the circumstances of the present case, however, there was, as we see it, no requirement for a propensity direction – it would have been needlessly confusing to introduce that into the summing-up. Nor was this the kind of case positively requiring a detailed consideration in the summing-up of whether or not there had been opportunities for collusion: because both J and V agreed in evidence that they had always been very close and (latterly) had indeed talked between themselves – as well as to others (including, as Mr Christie said, the police) – about what, according to them, had happened to each of them. In that sense, no-one could suggest that they were “independent” of each other. The position was in that regard plain to the jury and did not require further emphasis in the summing-up. Further, this was not simply a case where an issue as to “coincidence” as to the nature of the allegations was, realistically, in play. Although the judge had, in his summing-up, referred to events being “imagined”, “misunderstood” or “fantasised”, we think that the reality of the trial, as it was conducted and as representing the fundamental basis on which the witnesses were examined, was that this was a case, as advanced by the defence, of joint fabrication by J and V (the burden of course being on the prosecution – as the judge several times stressed in the summing-up – to disprove that). In the present case, that the complainants were two sisters who were very close to each other and who had latterly talked matters over between themselves did not preclude the jury from finding them to be reliable witnesses and capable of giving truthful evidence which could be accepted as supportive of the other. What the jury had to decide was whether the evidence of J and V was, or may have been, tainted by reason of their talking matters over or was otherwise unreliable. That was an evidential issue for the jury to assess.

We pressed Mr Christie as to what further directions on collusion or contamination, by reference to the full form of the JSB direction, were in truth required, given the circumstances of this particular trial. He rather struggled to answer. He did, somewhat faintly, suggest that a direction on innocent contamination was called for: he referred us to N(H) [2011] EWCA Crim 730 in that regard. As in that case, we deduce that trial counsel in the present case had in fact not sought such a direction. That, we accept, is not conclusive if there was indeed a need for such a direction: and in some cases it may be very important. But we think that the reality of this trial, and in the light of the evidence that was given, was such that it is plain that innocent contamination was not, realistically, a feature arising. The whole issue, and the essential basis on which they were cross-examined, was whether J and V had discussed matters, or may have discussed matters, by way of deliberate collusion so as to fabricate these allegations. That was where the battleground lay. A (broadly) corresponding example – where a direction on innocent contamination was held not necessary – can be found in the case of K [2008] EWCA Crim 3301. That case, indeed, reflects the approach indicated in N(H) itself. Ultimately, what is to be regarded as sufficient and appropriate in a summing-up in these kinds of case depends on the particular facts and circumstances.

In substance, therefore, in our view, the judge’s closing remarks in his summing-up encapsulated what in reality was the central issue in the case.

We have also considered Mr Christie’s submission that this direction came in the wrong place. Conventionally, we agree that it might well have come earlier. But we do not agree that it was necessarily diminished by reason of being placed at the very end of the summing-up: and certainly the burden of proof was re-emphasised in that context. As to the wider submission that the summing-up was unbalanced, so as to render the convictions not safe, having considered the position carefully we do not agree with that either. The summing-up was not ideal, nor was it tightly structured. But we think overall that it was sufficiently balanced and was adequate for its purpose.

Ultimately we do have to ask ourselves whether these convictions are safe. This was a powerful prosecution case. We of course have to bear in mind the great delay and we also have to look at the objections raised by the appellant not only individually but also cumulatively. We have done so. Our conclusion is that the convictions are safe.

The appeal is dismissed.