R v VA

On 10^th March 2015 in the Crown Court at Inner London before His Honour Judge Madge and a jury the appellant was convicted of five counts of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956 and two counts of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960.

On 8^th May 2015 the appellant was sentenced by His Honour Judge Madge to eight years' imprisonment on one count of indecent assault (count 5), four years concurrent on three counts of indecent assault (counts 2, 3 and 6), two years concurrent on the other count of indecent assault (count 1), and one year concurrent on the counts of indecency with a child (counts 4 and 7), making a total sentence of eight years' imprisonment.

No evidence was offered against him on counts 8 and 9 (indecent assault) and on counts 1, 2 and 3 of an earlier indictment (possession of an indecent photograph and making an indecent photograph), and not guilty verdicts were entered pursuant to section 17 of the Criminal Justice Act 1967.

The appellant appeals against conviction by leave of the full court which also granted the necessary extension of time.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the publication to identify that person as the victim of that offence.

It was alleged that between 1990 and 1992 the complainant "NI" (who was then aged between 7 and 8) was sexually abused by the appellant, who was the partner of her mother "CR" after the breakdown of her parents' relationship. Her parents then separated and embarked upon custody proceedings. She did not see the appellant again until she was an adult.

These matters were reported to the police following a conversation between NI and the appellant's then partner, "LM", on 5^th August 2012 when LM and the appellant were visiting CR. NI alleged that the appellant touched her inner thigh in his car, touched her nipples under clothing in the living room of her home, rubbed her clitoris and on the same occasion forced her to masturbate him, on a separate and single occasion inserted an object into her vagina and on other multiple occasions touched her clitoris and forced her to masturbate him.

These incidents happened at her home when her mothers and sisters were out and, on one occasion, at the farm of the appellant's sister. Thereafter she asked him to stop and the abuse ended.

NI reported the matter to police on 26^th August 2012. She provided her evidence in an Achieving Best Evidence interview dated 11^th September 2012. The appellant was arrested on 18^th September 2012.

As a teenager, NI was referred to a counsellor at her GP's surgery on the insistence of her mother. On her account alone she told the counsellor that her mother's boyfriend "was a nonce", but her allegation was not taken seriously. There was no evidence of this one way or the other, despite pre-trial requests.

There was an agreed statement of CM (NI's cousin), who said that when NI was about 15 she told her that she was abused by the appellant over a two year period when she was around 9, and that he had put his hand up her top and up her skirt in a car. CM did not remember being told of any other incidents.

The evidence of LM (now aged 58) was that she started a relationship with the appellant in 2006/7 and that it ended in October 2013. She gave evidence about seeing inappropriate images on his desktop computer, his laptop, and her laptop to which he had access. There were images both of adults and young children. Her evidence was that the ages were anything from 16 to about 9. She said that she confronted him and he said that he like pubescent girls of about 12. She said that he would say things like, "Once a woman reaches the age of 21, she's past her peak. Some girls are 19 but only look 14. Some are 14 and look 19". He also said, "Children are sexual beings and enjoy it and have the right to sex". He said that to her on two or three different occasions.

LM met NI more than once when she was in the relationship with the appellant. She recalled an incident in 2012 when they met at NI's mother's house and NI ignored the appellant. When she and NI were alone in the house, she asked NI if she disliked him. She said she "hated his guts" and told her that he had sexually molested her when she was a little girl, mostly touching and fondling and masturbation. NI was very emotional.

LM did not say anything then to the appellant, but later that evening when they arrived home she asked him why NI did not like him. His response was, "I didn’t know she didn't like me". He said, "I saw her at a mutual friend's funeral. I gave her my business card. She was all right then". The appellant denied the allegations of sexual assault. Her relationship with him ended some considerable time later, in September or October 2013.

The prosecution applied to adduce the fact that indecent images had been found on three devices to which the appellant had access. The judge ruled in favour of the prosecution, following which the following admissions were agreed and read into the evidence:

The appellant gave evidence. He denied the allegations. He and CR were lifelong friends who had a brief relationship following the collapse of her relationship with NI's father in the late spring of 1992. He was never alone with NI, except for one particular occasion when he had to take her to the GP and thereafter returned her to CR's workplace. At all other times CR's other children and indeed his own children were present. He did not understand why the allegations were made and speculated that NI was mentally unwell.

LM fell out with the appellant in April 2014 when she was told (incorrectly) that he was in a relationship with CR which was why, he believed, she now wished to give evidence against him. He pointed to their falling out as the reason she assisted the police, given that she had initially refused to do so and continued their relationship following NI's allegations, having expressed her doubts about their veracity.

The appellant said that he had looked at adult pornography and indeed did so with LM, who objected to the ages of some of the women, who were in their late teens and early twenties. They did have a conversation about when a woman was at her peak and he accepted that he liked to look at young women, albeit he had always had relationships with women of his own age.

He denied a sexual interest in children. When looking at adult pornography sites he had seen occasional images of children in thumbnail size, which he was not looking for and had not clicked on. He added that other people had access to his computer.

CR gave evidence, as did JL (NI's elder sister). CR produced contemporaneous evidence from the proceedings of her separation from NI's father confirming that she and the appellant could only have been in a relationship during the late spring and summer of 1992. This was in direct contradiction of NI, who had said when cross-examined that that relationship had lasted longer than a few months.

CR's evidence was that the appellant would never have been alone with NI at her home or elsewhere, which evidence was supported by another daughter, "JL". After their relationship ended they remained friends while she attempted to reconcile her relationship with NI's father at the appellant's suggestion for the sake of the children. This was short-lived and thereafter they separated and she fought for custody of the children in court proceedings.

CR spoke of NI attending a funeral and sitting near the appellant at the reception. There was no indication of any animosity on behalf of NI towards him, and she even requested his business card in order for him to undertake some roof repairs.

JG (the appellant's sister) gave evidence that she bought a farm in December 1992 and that it was derelict until she moved there in late 1993. She said that the appellant had never been to the farm in the way NI had described.

The grounds of appeal are:

At trial the defence were supplied with crime reports that revealed that NI had made previous sexual allegations.

In 1996, when she was 12 or 13 years old, after the alleged abuse by the appellant and after he had ceased his affair with her mother, NI made allegations to the police against two young males. In the event the case was not then pursued further following meetings between the police and NI and her parents ("the 1996 complaints").

In 2012, at the same time she made the instant allegations against the appellant, NI told police that she was also abused by her mother's boyfriend, AR, at the same address when she was about 11 or 12. The brief facts were similar to those alleged against the appellant, namely, that he touched her breasts, made her touch his penis and attempted to give her oral sex. NI refused to provide an ABE interview about this allegation ("the 2012 complaint").

Defence counsel had served a written application to adduce the details of the allegations in cross-examination under section 41 of the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act"). Given the lateness of the disclosure of the crime reports this application had to be dealt with at short notice during the course of the trial. This unfortunately meant that the applications were not made with the benefit of fully considered and researched argument, and rulings and compromises were made in some haste during the heat of the trial. Defence trial counsel now recognises that in hindsight a different approach should have been taken.

The two applications were dealt with in three stages before and during breaks in the complainant's evidence. The judge ruled: (1) that NI could be asked a question about suggesting that she had an earlier opportunity to report these allegations in 1996 because she had contact with the police with the support of her parents at that time; (2) that she could be asked if she had mistaken one boyfriend of her mother's for another in naming her abuser without any detail of the other person she alleged might have been responsible or the details of this allegation.

The appellant submits that the judge was wrong to refuse to permit full questioning of NI about the opportunity in 1996 to make her allegations against the appellant.

It is submitted that such questioning would have been obviously relevant given that the context was that NI was making complaints about other sexual offending against herself.

In this case there was a compromise in that the defence were allowed to ask a question suggesting that she had an earlier opportunity to report these allegations in 1996 because she had contact with the police with the support of her parents. The defence were not allowed, however, to ask about the fact that the contact with the police concerned complaints of sexual offending on the ground that such questioning would have fallen within section 41 of the 1999 Act.

Section 41 of the 1999 Act provides as follows:

The appellant submits that the 1996 complaints were not "sexual behaviour" and therefore were not within section 41 and, subject to their being relevant, they were admissible under the normal rules of evidence.

In support of that contention the appellant relies in particular on the case of R v T and R v H [2002] 1 Cr App R 22. In that case it was held that the defendant should have been allowed to ask questions about the complainant's failure to mention the sexual offences with which the defendant was charged on two earlier occasions when she had been asked about sexual matters involving herself. The court stated as follows at [33] and [34]:

The appellant submits that the same applies here. The truth or otherwise of the 1996 complaints is irrelevant. As in the case of R v T and R v H "it is enough for the purposes of the defence that she made such statements but said nothing about any sexual assault by the present defendant".

The Crown seek to distinguish R v T and R v H on the grounds that in that case the defence were not allowed to ask any questions, whereas in the present case there was a compromise whereby questions were allowed but without the sexual aspect.

The questioning which it was held should have been allowed in R v T did, however, involve a sexual aspect: see [7] of the judgment. That was nevertheless held not to be questioning about "sexual behaviour".

As the appellant submits, the 1996 complaint to police was about sexual matters, years after her alleged abuse by the appellant and with her parents' support. As such it might have made a reasonable fact-finding tribunal doubt why she had not raised her allegations against the appellant then.

As such, allowing a question which removed any reference to sexual matters totally removed the force of the point. As the appellant points out, for all the jury knew, NI was complaining about a stolen bicycle. In those circumstances in our judgment the failure to permit such questioning might render the conviction unsafe: see subsection (2)(b).

In our judgment, the approach taken by the court in R v T equally applies to the 1996 complaints in this case. Since it is not necessary to investigate whether the sexual complaints were true or false, they do not relate to "sexual behaviour" of the complainant.

Even if that be so, the defendant may still have had to show that the Criminal Justice Act 2003 "bad character" criteria were satisfied. In our judgment there are reasonable grounds for so contending. It is well arguable that the fact of that opportunity to complain would meet the test of having "substantive probative value in relation to a matter which ... is of substantial importance in the context of the case as a whole" under section 100(1)(b).

It follows that in our judgment the judge erred in not allowing fuller questioning in relation to the complainant's 1996 complaints. We shall consider the potential impact of this on the safety of the conviction when we have addressed the other grounds of appeal.

The appellant submits that the fact that NI had suffered abuse by the father of her sisters would be an obvious explanation of why she was able to describe such offending so graphically and be left so upset by doing so. There was an obvious motive not to pursue RA as he had a family relationship to her.

The appellant accepts that the 2012 complaint did amount to "sexual behaviour", as those events had to be true to have the significance that the defence sought to attach to them. It is submitted that it was nonetheless admissible under section 41 because:

We agree with the appellant on points 1 to 3. The effect of the judge's indicative ruling was that the appellant was only allowed to ask if NI had mistaken one boyfriend of her mother's for another in naming her abuser.

In our judgment there is force in the appellant's point that, absent fuller knowledge of the 2012 complaint, the jury may well have been impressed by the detail of NI's allegations and the manifest upset she underwent in relaying them. Simply to ask her whether she was confused about the identity of her abuser would be likely to have made little impression on the jury and indeed did not feature in the summing-up. Conversely, to be able to make the suggestion that she had genuinely experienced such abuse but transposed the abuser from one of her mother's partners, who was a father to her siblings, to one who was not, would have been a more credible suggestion and one that might explain both her vivid descriptions of the abuse and her obvious physical upset when doing so.

As the appellant submits, this was a troubled complainant who was able to describe her abuse as a child vividly and in great distress. Had the jury known of the material that was not admitted, there might have been a ready explanation for that realistic description and that distress.

Point 4, however, is more difficult. In R v T and R v H and subsequent cases, such as R v Martin [2004] 2 Cr App R 22, it has been held that questions about a complainant's previous false complaints of sexual misconduct related to statements in the past rather than sexual behaviour and therefore fall outside section 41. In such cases it has, however, been stressed that there needs to be a proper factual basis for asserting that the statement was made and was untrue.

Where, as here, the statement is alleged to be true then, as was made clear in R v T and R and H, and accepted by the appellant, that does involve the complainant's sexual behaviour.

The appellant submits that subsection (4) is designed to protect against the second of the "twin myths" that "unchaste women … were less worthy of belief" (per Lord Steyn in A(No 2). In other words, the subsection protects attacks against that suggests that the complainant is generally not one whose word should be believed by reason of her previous sexual history, but does not prevent evidence with a direct bearing on whether the allegation before the jury is true or not. The appellant submits that this is the analysis cited with approval by Lord Hope in A(No2), and further submits that, were it otherwise, subsection (4) would exclude almost all defence evidence or cross-examination, as the purpose of that is almost always to suggest that the complainant is wrong and the defendant is not guilty.

The passage relied upon from Lord Hope's speech in A(No2) [2001] 2 Cr App R 21 is as follows:

Although A (No 2) was a case concerning consent, the example given by Lord Hope at (d) is potentially relevant to the present case and he clearly regarded such questioning as being permissible.

In our judgment there is considerable force in the appellant's argument. The focus of subsection(4) is questioning or evidence which impugns the credibility of the complainant because of the fact of his or her sexual behaviour. It is to prevent it being suggested that such behaviour in itself means that the complainant is not "worthy of belief".

That is not this case. The reason for the questioning was to seek to provide an alternative explanation for the detail of the complainant's evidence and for her distress, and to provide support for the suggestion that she may have been confused and mistaken, and to have transposed the abuser from RA to the appellant.

We recognise that there are cases in this court, such as R v T and R v H and R v Martin, in which it has been suggested that impugning credibility has a wider meaning and includes anything which casts doubt on whether the complainant's allegations were true. In none of those cases, however, was the present argument seemingly raised. Nor were such observations critical to the decision made since in none of them was the conviction set aside and they are therefore arguably obiter.

We consider that the narrower meaning which we favour (i) is consistent with the purpose of section 41, as explained by Lord Steyn in A(No 2); (ii) is borne out by the examples given by Lord Hope at [79] in that case; (iii) reflects the wording of subsection (4) since it links the sexual behaviour itself with the impugning of credibility; (iv) avoids the danger of unfairly precluding evidence on matters that have a direct bearing on whether or not the allegation before the jury is true; and (v) should be easy to understand and apply.

Even if, however, the wider meaning is to be adopted, it leads to the same conclusion in this case. In R v Martin it was recognised that if the purpose of the proposed questions was not only to impugn the complainant's credibility but was also to strengthen the defence case then impugning the credibility would be "'one purpose' but not 'the purpose' or 'the main purpose of the questions", and therefore outside subsection (4): see [33] to [37]. The same applies here. One of the purposes of the questions was to strengthen the defence case that the complainant had transposed the abuser from one of her mother's partners who was a father to her siblings to one who was not. The difficulty we see with this approach is that these two purposes may often be "two sides of the same coin" and that it may be problematical to apply.

For all these reasons we consider that the purpose of the further questioning sought by the defence was not to "impugn the credibility of the complainant" and accordingly was not caught by subsection (4).

Depending on the questioning allowed, it may be that the appellant would still have had to show that the Criminal Justice Act 2003 bad character criteria would have been satisfied, but again we consider that it was well arguable that it would have been.

It follows that in our judgment the judge erred in refusing to allow fuller questioning in relation to the 2012 complaint. We shall consider the potential impact of this on the safety of the conviction when we have addressed the other ground of appeal.

The challenged ruling concerned the images allegedly found on the computer devices to which the appellant had access, the charges with respect to the images having been dismissed or dropped at an earlier stage of the proceedings. The prosecution sought to adduce this evidence as evidence of bad character in reliance upon gateways "c" and "d" under section 101(1) of the Criminal Justice Act 2003. In considering gateway "d" (relevance of the appellant's bad character to an important matter in issue between the appellant and the prosecution), the judge considered: (1) that the existence of indecent images of children on the laptop was capable of demonstrating an inappropriate sexual interest in young children, especially when considering in conjunction with the alleged admissions to LM; (2) that propensity does make it more likely that the appellant committed the offences charged; and (3) that it was not unjust to rely on the alleged bad character, nor would the proceedings be unfair if they were admitted and the jury could be told about the decisions not to proceed and/or dismiss these offences.

In the circumstances it was unnecessary for the judge to consider in any detail the prosecution's application to admit the bad character under gateway "c" as important explanatory evidence. The prosecution's submission in this connection was that it would be difficult properly to understand the delay in reporting the offence by the complainant were it not for the evidence of the complainant and LM about the conversation arising from the discovery of the material on the laptop. Further, it would be difficult properly to understand how the alleged conversation about the applicant's interest in young girls, which the judge concluded was admissible as a confession, came about without the jury hearing such evidence. The judge was satisfied that the probative value of all of this evidence exceeded the prejudicial impact but it was something which he would keep under review throughout the course of the trial.

The appellant submits that the judge was wrong to admit bad character evidence of child pornography found on two computers linked to the appellant, in circumstances where there was a dispute as to how and why those images had got there, and no satisfactory basis for the jury to resolve that dispute.

In his Ruling admitting the child pornography the judge relied on the case of R v D, P and U [2012] 1 Cr App R 8. It is to be noted, however, that in the cases of all three of those linked appellants, they had admitted offences of possessing child pornography.

In the present case the charges relating to the images found on LM's computer (counts 12 to 17) were dismissed by the judge on the basis that there were accepted other users of the computer and the prosecution were unable to demonstrate through expert evidence that the appellant was responsible for searching for or making the indecent images. The judge accordingly considered that, on these counts, there was no evidence upon which the jury could safely convict, but the same matters were now being relied upon against the appellant in the present case without the benefit of any further evidence.

Following the dismissal of those counts a detailed letter was written by the officer in the case to NI explaining the reasons for the prosecution offering no evidence in respect of the remaining counts concerning indecent images. Those reasons included: there was uncertainty about who had accessed the images and there were a number of candidates; the computer analysis was inconclusive; all of the images, save two, were of thumbnail size and that made it difficult to show that whoever it was who had downloaded them had done so intentionally or knew what the images were.

In his ruling allowing admission of the indecent images none of these difficulties were considered or addressed. Equally, in his summing-up the judge said that the jury had to be sure that the appellant had intentionally viewed indecent images of children but referred to none of the evidential difficulties that had led to the dismissal and withdrawal of the charges against him.

In the circumstances of the present case the appellant submits that there are numerous problems such as should have led the trial judge to refuse the prosecution application, namely:

In our judgment there is considerable force in these submissions. This was highly prejudicial material but there was no satisfactory evidence linking the appellant to that material, as acknowledged by the dismissal and dropping of the earlier charges against him.

The Crown say that their priority was the admission of LM's evidence about the appellant's viewing of computer images and what he said about them, but that could have been dealt with by way of admitted facts or by live evidence without reference to the images.

The Crown further say that it was defence counsel's choice to put in the detailed admissions, but that choice was made after the judge had ruled that the evidence of the images was admissible.

In our judgment in all the circumstances it was unfair to the appellant to admit the bad character evidence of child pornography found on two computers linked to the appellant and the judge erred in so doing.

In relation to each ground of appeal the Crown submits that even if the judge was in error the safety of the conviction is not affected and that the appellant's case to the contrary is no more than speculation.

Had only one ground of appeal succeeded, such a contention would have required careful consideration. In the circumstances, however, where all three grounds of appeal have succeeded, we are left in no doubt that the conviction must be regarded as being unsafe.

For the reasons outlined above, the appeal is allowed and the convictions must be quashed.