PW & Ors, R. v

This is an application by the Crown for leave to appeal a terminating ruling under Section 58 of the Criminal Justice Act 2003 (“the 2003 Act”). We have to say that the papers have come to us in a degree of disarray and piecemeal. The members of the court have been required to work under considerable pressure of time both before and after the hearing so that the parties may make arrangements for a trial which is due to start very shortly. For all those reasons this judgment will concentrate on what is necessary to be decided and will not be as long or as detailed as it might have been had greater time been available.

At the outset of the hearing we made certain orders dealing with reporting restrictions. We confirm those orders. Section 71 of the 2003 Act applies so that there will be no reporting of these proceedings until the conclusion of the trial, subject to those matters which are permitted by section 71. Secondly, in the case of the victim L, the provisions of the Sexual Offences (Amendment) Act 1992 provide her with anonymity and protection against identification. In the case of the respondent PW we confirm an order under section 45 of the Youth Justice and Criminal Evidence Act 1999 so that no matter likely to identify PW as a person concerned in these proceedings is to be published whilst he is under 18. That order will expire on 10th May 2017.

An extensive police investigation was carried out into sexual exploitation said to have been committed by young male members of the travelling community. This resulted in an 82 count indictment charging 23 separate defendants. There were allegations of a range of offences including rape, trafficking, assault by penetration, and making indecent photographs of a child. The vast majority of the offences were alleged to have been committed against one particular complainant, L, who was aged 15 at the time of the offences.

Clearly the 82 count indictment was not triable in that form. Accordingly the allegations were divided into at least three trials.

The first trial involved a 40 count indictment, concerning 8 defendants. It took place between January and March of this year, and ended with a ruling by the judge that there was no case to answer in respect of 7 of those defendants. None of those defendants is involved in the present application. L was held to be an inherently unreliable witness. Her evidence had been fundamentally contradicted by other witnesses, she was shown to have told extensive and provable lies on oath, and had attempted to persuade a prosecution witness to lie on her behalf. There was no appeal against that ruling. All of the counts tried on that 40 count indictment were of contact sexual offences and did not involve indecent photographs.

As a result of that ruling, the Crown decided to abandon L as a prosecution witness. It would not rely in any future trial on a count which was based partly or solely on her testimony. The effect of this decision was that all contact sexual offences in the prosecution as a whole were brought to an end.

Following the ruling of 10th March 2016 the prosecution decided that it would prosecute defendants where indecent images of L had been recovered from mobile phones. There had been indecent image counts on the original 82 count indictment. Those counts were based on L’s testimony, but as already stated, these had not been tried on the 40 count indictment. The Crown had in fact served evidence prior to the trial showing that some defendants’ mobile phones contained indecent images of the same activity, but, since it had been served relatively late, decided not to rely on it at the first trial.

Having reviewed the matter after the first trial, the Crown decided to prefer a 15 count indictment against 10 defendants, bringing charges of making an indecent photograph of a child contrary to Section 1(1)(a) of the Protection of Children Act 1978 (“the 1978 Act”). L was not to be called as a witness, although she was depicted in virtually all of the images or films identified. The Crown intended to prove those counts solely by reference to what could be seen on the various mobile phones.

Lengthy submissions were made to the trial judge that for the Crown to proceed would be an abuse of process. A core submission was that the defendants could not have a fair trial unless L gave evidence. In any event it was submitted that the Crown was seeking to have a second bite of the cherry, having lost the first trial. Additional arguments were raised in support. They included arguments to which we will refer later, relating to the mens rea of the Section 1(1)(a) offence, whether a decision to prosecute was disproportionate in view of the likely sentence, and whether it was wrong to prosecute defendants under the age of 18 for offences against L.

On 26 May 2016 the judge upheld the defence submissions ordering that the proposed indictment should be stayed.

We next need to say a word about the defendants on the proposed 15 count indictment which was stayed. There were 10 defendants in all, but two of them, TR and JO are not the subject of this application, their prosecutions having been terminated for other reasons. Four of them, PW, PC, LD and BC, appeared on the original 82 count indictment, and were not tried on the 40 count indictment, but had featured in counts brought under Section 1(1)(a) which had been intended to be tried after the trial of the 40 count indictment. Three other defendants on the original indictment were the respondents AM, JP and PQ. They did not at that time face any indecent image charges. However after the conclusion of the first trial, the Crown commenced proceedings against them in the Magistrates Court based on the evidence recovered on mobile phones. That case was sent to the Crown Court. The respondent MC was arrested in December 2015, and was to be a defendant in a potential fourth trial involving him and another man, in which he faced an indecent images count in relation to L. He had not been part of the 82 count indictment at all.

What the Crown proposed to do was to bring these 8 respondents together on a single indictment containing indecent image counts in relation to L and to prove its case primarily by reference to images recovered from mobile phone. These were images in the form of photographs and videos depicting L engaging in various sexual activities with some respondents, photographed by another respondent.

The Crown had indicated its intention to take this course very shortly after the judge’s ruling of 10th March and lodged with the court by electronic means its proposed 15 count indictment which drew on the sources identified above. But for the abuse application, the Crown would have made applications to bring the respondents together on a single indictment to deal with any existing indictments, and to amend, within the new indictment, counts which had featured in the existing indictments. In the event no rulings were made on those applications because the judge brought the proceedings to a halt by granting a stay.

As already stated the judge upheld the defence submissions and stayed the proposed indictment which had been lodged electronically with the Court, under the new better case management regime. The judge gave a substantial ruling, accepting most of the contentions made on behalf of the respondents and concluding as follows:

“In any event for the reasons I have already referred to, I would not permit the prosecution to add new counts to the indictment which could have been brought in the original indictment and were not. I therefore find that the abuse of process argument is established and I rule that this indictment, draft or otherwise, with the counts thereon should be stayed as an abuse of process.”

The Crown sought time in which to mount an appeal. The judge granted an adjournment. On the 2nd June 2016 Mr Atkinson QC, who then represented the Crown, informed the Court of the Crown’s intention to appeal and gave the necessary undertaking pursuant to Section 58(8). It is highly regrettable that, having been granted an adjournment of about a week, counsel did not return to the court with grounds of appeal prepared. Nothing was provided in writing either to the judge or to the respondents. This meant that after the Crown informed the court of its intention to appeal it required further time to formulate its grounds. Leading counsel was then replaced by different counsel who in some respects did not share his predecessor’s views about the proposed appeal. All of this has led to the disarray referred to earlier in this judgment.

Section 58 sets out requirements compliance with which are preconditions to an appeal. Section 58 is in the following terms:

“58 General right of appeal in respect of rulings

(1)

This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2)

The prosecution may appeal in respect of the ruling in accordance with this section.

(3)

The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

(4)

The prosecution may not appeal in respect of the ruling unless—

(a)

following the making of the ruling, it—

(i)

informs the court that it intends to appeal, or

(ii)

requests an adjournment to consider whether to appeal, and

(b)

if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

(5)

If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment.

(6)

Where the ruling relates to two or more offences—

(a)

any one or more of those offences may be the subject of the appeal, and

(b)

if the prosecution informs the court in accordance with subsection (4) that it intends to appeal, it must at the same time inform the court of the offence or offences which are the subject of the appeal.

(7)

Where—

(a)

the ruling is a ruling that there is no case to answer, and

(b)

the prosecution, at the same time that it informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,

that other ruling, or those other rulings, are also to be treated as the subject of the appeal.

(8)

The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9)

Those conditions are—

(a)

that leave to appeal to the Court of Appeal is not obtained, and

(b)

that the appeal is abandoned before it is determined by the Court of Appeal.

(10)

If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

(11)

If and to the extent that a ruling has no effect in accordance with this section—

(a)

any consequences of the ruling are also to have no effect,

(b)

the judge may not take any steps in consequence of the ruling, and

(c)

if he does so, any such steps are also to have no effect.

(12)

Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

(13)

In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the time when the judge starts his summing-up to the jury.

(14)

The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.”

Submissions have been made on behalf of the respondents suggesting that this Court does not have jurisdiction because the prosecution has not complied with the terms of section 58. There is a question as to whether the judge made one or more rulings. There is a further question as to whether there was any ruling in relation to a trial on indictment given the way in which the 15 count indictment had come to the Crown Court. It is submitted that in the circumstances there is no indictment in existence, and that without one there could not be a ruling giving rise to an appeal under the 2003 Act. It was suggested that in addition to the ruling on abuse, decisions to refuse to permit the indictment to be signed out of time, and to refuse to permit amendment or addition to the indictment, were discrete rulings which cannot be pursued because they had not been identified to the Court as rulings which the Crown wished to appeal on 2nd June, when the prosecution notified its intention to appeal. Additionally, it was argued that if those were rulings and the appeal relating to them fails, then irrespective of the position on abuse of process, the acquittal agreement must apply.

We note the broad definition given to “ruling” in Section 74(1) of the 2003 Act. We have further considered the terms of the judge’s ruling of 26 May, and it is clear that she made a single ruling staying the indictment for abuse based on a number of findings to which we shall come, and which she recited in her judgment. The transcript of 2nd June clearly shows that the judge stated that she had stayed the proceedings with the result that she could not entertain questions of joinder and amendment of counts. It is also clear that the sole ruling which it was indicated that the Crown sought to appeal related to the stay for abuse of process. That is the only ruling identified by the Crown at the relevant time, namely the hearing of 2nd June, as one which it wished to appeal. The fact that in documents subsequently submitted to this Court the Crown identified matters relating to the indictment as rulings it wished to appeal does not affect the position. In relation to those matters there is no appeal before the court to which section 58 applies because no such ruling was identified at the relevant time and no acquittal agreement was entered into in relation to those matters. Those matters will fall to be ruled upon in the future by the trial court in the light of the conclusions to which we have come in relation to the one ruling validly before this Court, namely that relating to abuse of process. Thus, we take the view that there is a single ruling relating to abuse of process to be considered.

Some play has been made before us about the formal requirements for a valid indictment before the Court. Those submissions, it seems to us do not appear to recognise the fact that there have been significant changes in the relevant formalities. The correct analysis as it seems to us is as follows. Prior to the amendment of Section 2 of, and Schedule 2 to, the Administration of Justice (Miscellaneous Provisions Act) 1933 (“the 1933 Act”) by the Coroners and Justice Act 2009, it was a requirement of the 1933 Act that a bill of indictment be signed by the proper officer of the court in order for it to become an indictment. The legal position now is that once a bill of indictment charging a person with an indictable offence for which he may lawfully be indicted in the Crown Court has been preferred, it becomes an indictment (see Section 2(1) of the 1933 Act and Archbold 2016 edition at 1-191). Accordingly lack of a signature does not invalidate an indictment.

Prior to the advent of the Crown Court paperless digital system it was good practice for an indictment to be signed. The new digital system aims at paperless administration of cases through the criminal justice system. It involves the CPS entering an indictment onto the Crown Court digital system. The Criminal Procedure Rules 2015 at Rule 10.1, require service of a draft on the Crown Court no more than 28 days after service of prosecution evidence. Service can now be by electronic means. Accordingly it seems to us that a signature is no longer needed to make an indictment valid. An indictment is preferred within the meaning of Section 2(1) of the 1933 Act, once it is electronically entered onto the Court digital system at the Crown Court. The consequence is, as Section 2(1) provides, that “it shall thereupon become an indictment and be proceeded with accordingly”.

Moreover the phrase “a ruling in relation to a trial on indictment” has, as was observed by this Court in R v Thompson & Hanson [2007] 1 Cr App R 15, a broad meaning which is made plain by a consideration of Section 58 (13). This defines the reference to “an applicable time” in subsection 1 as meaning any time, whether before or after commencement of the trial, before the judge starts his summing up. In all those circumstances we have no hesitation in holding that the judge’s ruling as to abuse of process falls within the terms of Section 58 so that this Court has jurisdiction to entertain this application for leave. We should explain that this is an application for leave because the judge below refused leave upon the Crown’s application, not least because despite the adjournment the Crown had not come armed with any written grounds or materials in time for the hearing of 2nd June.

We note that under section 58(6)(b) there is a requirement for the Crown to identify the offence or the offences which are the subject of the appeal. That must be done at the time of indicating an intention to appeal. At that hearing on 2nd June 2016 prosecuting Counsel identified several counts which are or correspond to counts 1, 5, 9, 10, 11, 12, and 15 of the 15 count indictment. At the hearing itself counsel muddled the numbers to some extent, but what was intended is clear from the transcript and no point has been taken about it. Subsequently a document containing Mr Aina’s submissions dated 7th June indicated at paragraph 106 that no appeal was pursued in relation to count 9. Count 9 related to BC.

Mr Aina sought leave before us to pursue his appeal in relation to other counts on the 15 count indictment as he wished to take a different approach from that adopted by Mr Atkinson. We refuse leave. Firstly Mr Atkinson elected which counts he wished to pursue by way of appeal, having had a week in which to decide. There is no good reason why the Crown should not be held to that election. Secondly, we are very doubtful that the Crown can rely on Part 36.3 of the Criminal Procedure Rules 2015 so as to extend time in relation to the identification of counts to be the subject of this appeal. Rule 36.3(a) permits an extension of a time limit “unless that is inconsistent with other legislation”. Given the clear terms of section 58 and the strictness with which it has been construed by this Court we do not consider that it is now open to the Crown to extend the number of counts covered by this appeal.

The result is that the counts before the court in this appeal are count 1 (PW and PC); count 5 (LD); count 10 (AM); count 11 (JP); count 12 (PQ); count 15 (PC).

Since the Crown does not now pursue count 9 in relation to BC we refuse leave in relation to that count and in accordance with the acquittal agreement order BC’s acquittal on that count. As there are counts other than those identified by us in the preceding paragraph, it will be for the Crown and the Crown Court to ensure that appropriate dispositions are made and recorded in relation to them. We only have jurisdiction in relation to counts properly before us.

We are accordingly satisfied that the jurisdictional challenges to this hearing fail and go on to consider the merits of the judge’s ruling in relation to the counts we have identified.

The judge’s ruling was made in the context of the 40 count trial in which it emerged that L was a wholly unreliable witness. As a result of the evidence which had emerged at that trial, the Crown could not portray L in those or in any future proceedings as someone who was the non-consensual victim of what was done to her. The judge recognised that the court’s power to stay proceedings for abuse arises in two categories of case; firstly where it would be impossible to give the accused a fair trial; and secondly where it offends the court’s sense of justice and propriety to try the accused or where a trial would undermine public confidence in the criminal justice system and bring it into disrepute. The judge correctly recognised that the remedy of a stay is to be granted rarely and that there was a burden on the defence to establish such abuse.

The judge gave a variety of reasons why a stay should be granted. They appear to us to cover both categories under which a stay is possible and led the judge to the overall conclusion that a stay should be granted. The Crown challenges the various aspects of the judge’s reasoning. The respondents support the judge. Those positions reflect the contending arguments advanced to the judge below. We will deal with them in turn.

The first matter concerns the mental element relating to an offence under section 1(1)(a) of the 1978 Act. The judge accepted an argument that the mental element of the offence should not only be that the act of making the image was deliberate and intentional, but also that a defendant should have knowledge that the image made was or was likely to be an indecent image of an under-age child. In other words, the judge was holding that the Crown must prove that a defendant knew that L was or was likely to be under 18. There was evidence in some instances that L had lied about her age, and in others that the respondents knew that she was under 18.

In so concluding, the judge noted the decision in R v Smith and Jayson [2003] 1 Cr App R 13, where, in cases involving a section 1(1)(a) charge based on downloading an image to a computer or opening an email attachment, this Court held that the mens rea included a requirement of knowledge that the image made was likely to be an indecent one of a child. The judge was also aware of the decision of this Court in R v DM [2011] EWCA Crim 2752, which was not a downloading case but one of taking photographic images on a phone and where the court held that there was no mens rea requirement beyond establishing that a defendant took the photograph deliberately and intentionally.

In the present case, the defence argued, and the judge accepted, that it was anomalous that there should be different approaches to the mens rea of the section 1(1)(a) offence. We do not think that that conclusion is right. Having considered R v Land [1998] 1 Cr App R 301, R v DM, R v AM [2015] EWCA Crim 353 and R v Smith and Jayson, we have come to the conclusion that there is a distinction to be drawn between two types of case. The issue in Smith and Jayson was what was meant by “makes” in the context of images made by being downloaded to a computer or phone from the internet or via email. The other cases deal with the making of an image by the act of photographing or filming. Given particular considerations relating to a phone or computer user’s awareness as to what he is downloading, it is understandable that a different approach has been adopted for that situation. That should not affect the position where the making of an indecent image takes place through the more direct action of photographing or filming. In those circumstances, the offence is made out by the deliberate act of photographing or filming without more. Accordingly, we do not consider that the judge was correct in accepting the defence submissions on this point, where a defendant is involved as a principal, subject to a distinct point in relation to PQ, which we consider below.

Allied to the previous point is a separate submission. Some of the respondents are charged not on the basis that they made the photograph or film by using their phone to record it, but on the basis that they are guilty of an offence contrary to section 1(1)(a) by having participated in the filmed sexual activity which was taking place with L. The Crown’s case was that an inference of participation could be drawn from the fact of presence and involvement in the indecent acts as well as from behaviour during the filming. The judge was of the view that involvement of that sort was not sufficient without the Crown calling witnesses (presumably L) to demonstrate criminal involvement. There is said to be evidence in one or more cases that the respondent asked for the filming to stop. That may suggest prior knowledge that filming was to take place. It seems to us that taking part in sexual activity goes beyond mere presence at the event being filmed and is capable of giving rise to an inference of participation in the offence. Whether that inference is one which can rebutted by evidence from within the video itself or evidence advanced by a respondent is a matter for assessment in the course of an application to dismiss a submission of no case to answer, or of a decision of the jury. It does not seem to us that it is a matter which is appropriate for us to determine in this appeal in circumstances where we conclude that involvement in the sexual acts and other depicted behaviour is at least capable of creating an inference of participation in the section 1(1)(a) offence.

A further related submission is that any defendant who was proved to have been involved in the making of the image or images by his participation in the indecency being filmed or photographed would not be a joint principal in the offence but an accessory to it and, in such circumstances, the prosecution would have to prove that he knew that L was under 18.

Whether the involvement of any defendant in the making of a photograph or film amounted to that of principal or accessory can, and should, be determined, on the relevant evidence, as part of the trial process. Similarly it will be a matter for the trial judge to determine as a matter of law whether the evidence of particular involvement of a defendant as an accessory would require the prosecution additionally to prove in his case that he knew L was under 18. These are issues that can properly be determined in the trial process, no doubt informed by the decision in R v Jogee & anor [2016] 1 Cr App R 31.

The next strand of the judge’s reasoning related to the proportionality of a prosecution. In particular, the judge considered that a prosecution was disproportionate having regard to the young ages of the respondents, their previous good character, and the unlikelihood of any significant sanction beyond sex offender registration by the court since all had spent some months in custody. In addition, the judge concluded that the CPS had failed to apply its own guidance in relation to the proportionality of pursuing a defendant under the age of 18 (in this case PW, PC, AM and MC), particularly where L, who must now be viewed as a consenting participant, was not being prosecuted.

We also received submissions that those respondents who were under the age of 18 at the time and who were alleged to be involved by reason of their filmed participation in events should be regarded as persons to be protected under the legislation rather than criminal perpetrators, in much the same way that L was.

In relation to the decision to prosecute, we consider that the judge was in error. Decisions whether to prosecute, including considerations of context, are matters for the CPS and not for the court, unless there is misconduct or oppression of the type explained in R v Horseferry Road Magistrates’ Court, ex p. Bennett [1994] 1 AC 42. We do not consider that the matters relied on come anywhere near falling to the Bennett class of case. Even if there was a failure to apply policy or guidance, that would not of itself affect the position. In this case however, there was credible material before the court showing the process by which the Crown had come to its decision.

The purpose of the legislation is to protect children from others, and from themselves if need be. Whether or not L consented to the activities and to their filming, the fact is that she was a vulnerable and damaged young woman below the age of sexual consent and well below the age of 18, which is the relevant age for the purpose of a section 1(1)(a) offence. It is not for the judge to consider whether it is proportionate or in the public interest for a prosecution to be brought. As was said in R v Paul Roberts and others [2014] EWCA Crim 1475, it is not the judge’s function to act as an additional filter of the public interest. Given that we are satisfied that no question of Bennett-type oppression arises here, we consider that the judge was in error in treating proportionality and public interest considerations as a relevant factor in her decision. We record that, in coming to this conclusion, we have considered R v A [2012] EWCA Crim 434, Moss v CPS [2012] EWHC 3655 (Admin), R (on the application of Barons Pub Co Ltd) v Staines Magistrates’ Court [2013] EWHC 898 (Admin) and R v Golding [2014] EWCA Crim 889.

Next, the judge held that the Crown’s decision not to call L as a witness but to seek to prove these allegations by other means, principally by images extracted from mobile phones, would be unfair. It would deprive defence advocates of the opportunity to cross-examine L as to the circumstances of the making of the images on the various occasions alleged. It would, she said, also have the effect of forcing defendants into the witness box. This is, of course, a type of charge which is frequently pursued in the absence of evidence from the victim in the images. Very often, the victim’s identity is unknown. The offence is proved by proving the contents of the mobile phone or computer. Accordingly, the prosecution’s proposal is not an unusual one.

The essential question for us is whether the absence of L from the witness box makes the trial of respondents so unfair as to mean that the prosecution is an abuse. We note that the judge’s ruling of 10th March found that she was a thoroughly unreliable witness. There was ample ground for this. We are therefore dubious as to the value which could sensibly attach to any evidence elicited from this witness. If a respondent made the indecent images by filming, it is common ground that such a person is a principal offender. We have held that R v DM applies so that it is not necessary for the Crown to prove that such a person knew that L was under 18 in order to convict him. In those circumstances we do not consider that L could give any material evidence whose absence would disadvantage such a person.

In the case of a person who is not doing the filming, but who is depicted as a participant, we have already indicated that the issue of whether that person is to be viewed as an accessory or a principal will have to be determined on the evidence adduced at trial. Whatever his status, the Crown has, through the images, evidence capable of showing involvement as a principal or accessory and has independent evidence that L was under 18.

Even if the trial judge ruled as a matter of law that, in the case of an accessory, the prosecution was required to prove in the case of any defendant that he knew L was under 18, her absence as a witness would not render the trial of any defendant unfair. The prosecution are unable to rely on evidence from L. It would be a matter for the judge to determine at the close of the prosecution case whether the prosecution had adduced sufficient evidence upon which a jury could be sure that the defendant knew that L was under 18. If there was no such evidence, then a successful submission of no case to answer would follow. If there was sufficient evidence, then it would be a matter for the defendant as to whether he wished to give evidence as to his knowledge of L’s age. It is unrealistic to expect that if L was available that her evidence would materially assist a defendant as to the state of his knowledge and, of course, there would be no direct evidence from her as a witness available to the prosecution which could operate adversely to a defendant. The prosecution’s failure to call L does not force a defendant to give evidence. It leaves him with a tactical decision to make as to whether to give evidence or not as is the case in many criminal trials.

The Crown has indicated that it will make appropriate admissions and will acknowledge that the activities depicted with L were consensual or, at least, not non-consensual, on her part. If there were to be convictions, the judge might have to have regard to evidence showing the state of mind of individual respondents as to L’s age and to the reasonableness of such a state of mind. There are materials in some cases which appear to show that they were aware that L was under 18, and the images themselves may assist the judge.

For the reasons given we are satisfied, after considering issues that will or might arise at trial, that the absence of L as a witness could not justify a finding that any respondent could not be fairly tried. We are satisfied that the trial process has mechanisms appropriate to secure a fair trial in the absence of L as a witness.

There was a discrete finding in relation to PQ. When arrested, his mobile phone was examined. Seven videos and one still image depicting sexual activity taking place with L were found. In interview he stated that the videos had been sent to him on WhatsApp. As we understand it, he is not alleged, unlike the other respondents, to have been directly concerned in the filming or to have participated in the activities depicted. The judge held that there was “a perception of unfairness” when PQ was being prosecuted in respect of images stored on his phone when those images had arrived by means of his membership of a WhatsApp group, none of whose other members had been prosecuted. We are unpersuaded that this forms a basis for sustaining an abuse argument since it would involve the judge entering the territory of prosecutorial discretion. The judge did not adopt a submission made by Miss Fordham on behalf of PQ that the Crown should have charged an offence under section 160 of the Criminal Justice Act 1988, which might provide PQ with a defence. We do not consider that the choice of charge is a matter for judicial intervention.

However, the presence of indecent images on PQ’s phone arose in a manner akin to downloading on a computer. It seems to us that the Smith and Jayson approach to mens rea rather than the DM approach applies to PQ’s case. That raises questions of evidential sufficiency and is not a matter appropriate to an abuse application. However in the case of TR, who is not before the court since the Crown decided not to appeal in his case, the offending images reached his phone by a similar means. Miss Fordham submitted that it is unfair for the Crown to have taken a different approach to this respondent in this respect, and that the court should now regard that as something constituting an affront to the court’s sense of justice and propriety. We think there is some force in this point. Mr Aina himself acknowledged it, and fairly indicated that he would not press his appeal in the circumstances. We refuse leave to the Crown to pursue this application in relation to PQ. The consequence of that is that the acquittal agreement comes into force and we order the acquittal of PQ in relation to Count 12.

This brings us to the final strand of the judge’s reasoning. She held that since the most serious charges had been dismissed at the end of the first trial, and since the rest of the serious contact charges against a large number of other defendants had been dropped by the Crown because of L’s unreliability, it was an abuse of process for the Crown to seek at this stage to revive or pursue for the first time charges relating to indecent images of children. The judge held that the combination of the passage of time and dismissal of the contact counts was such that was unfair and disproportionate for the Crown to pursue the present matters and that it represented an attempt to manipulate the process of the court. For these reasons it would not be right to allow the 15-count indictment to go ahead. To do so would require amendment of counts against PW, PC and LD which had been on the original 82 count indictment, or of the separate indictment against MC, or adding counts which could have been brought at that time against AM, JP and PQ and were not. The Prosecution, having decided to proceed in a particular way based on the assertion that non-consensual offences had been committed against L, was now seeking to change its stance in the light of the development that L had been shown to be totally unreliable as a witness.

In this context we were referred to R v Piggott and Litwin [1999] 2 Cr App Rep 320. This was a decision relied on by the judge below. That case had involved a trial of conspiracy to handle stolen goods. The Crown had previously withdrawn substantive handling stolen goods counts and proceeded on a conspiracy charge. After a submission of no case to answer was made on the basis that the evidence did not show one overall conspiracy but a number of different conspiracies, the Crown successfully applied to amend the indictment by adding nine substantive counts and a new conspiracy count. The trial judge, however, discharged the jury and ordered a re-trial. A new judge at the re-trial declined to hold that the procedure was an abuse of process on the grounds that he had no jurisdiction to review the exercise of discretion by the first judge. This Court allowed the appeals, holding that the effect of allowing an amendment of the indictment at the close of the Crown’s case was to permit the Crown simply to start again (on a basis previously withdrawn), and offended the concept of a defendant being entitled to know the case he or she had to meet and the concept of a fair trial. The court held that the second judge had a separate jurisdiction in considering whether a re-trial would be an abuse and that a correct exercise of his jurisdiction would have been to halt the trial since the defendants had already been subjected to a trial on grounds chosen by the Crown over a ten-day period.

It seems to us that that decision is distinguishable from the present circumstances. This case does not involve a proposed re-trial on essentially the same facts as a first trial. The issues in the proposed indictment have not been tried at all. The first trial was only concerned with contact offences and depended on the word of L. It did not involve any consideration of the phone images. As already explained, although the Crown had served the evidence in relation to phone images, prior to the first trial, on all defendants, the Crown did not deploy that evidence at that trial since it felt it had served it too late in the day. In addition, none of these respondents was involved in the first trial and so was never in jeopardy. There is thus, in this case, no question of the Crown seeking to go over ground on charges which have already been essentially adjudicated upon.

In relation to those who had faced indecent image counts on the 82 count indictment, the question arises as to whether it would be an abuse for the Crown now to proceed on counts which, instead of relying on the oral evidence of L, relied on the material found on various phones. In the cases of PW, PC and LD, when the 82 count indictment was subdivided, it had been proposed that they be tried on the original indecent image counts in what would have been trials 2 and 3 following trial 1.

Those respondents therefore knew that they were always going to face this type of allegation. The Crown would have been free at those later trials not only to rely on the evidence of L, but also to adduce the evidence of what was found on individual phones. The fact that as a result of its experience in trial 1 the Crown no longer proposed to rely on L does not detract from the fact that it had served other relevant evidence pertaining to these allegations many months prior to the proposed second and third trials. It does not seem to us that there is any improper manipulation of the process involved. The Crown is entitled to seek to adapt the presentation of its case in response to developments during a series of trials. Provided there is no unfairness, the Crown is entitled to adapt its position by the withdrawal of evidence or the addition of evidence.

In this case it is relying on evidence originally served and seeking to amend the particulars of the indictment so as to identify the materials found on the individual phones. The essence of the allegations, namely that it was L, an under-age girl, who was abused and filmed at a time clearly identified in the original counts, has not changed. We do not consider that abuse is established where the Prosecution seeks to proceed in modified form with counts as originally laid. Identical considerations arise in the case of MC, who was arrested too late to be included in the original 82 count indictment, but who was included in a separate indictment which was to have formed part of a fourth trial and which included an indecent image count.

In so concluding we have taken account of submissions made to us based on Rule 10.1 of the Criminal Procedure Rules which requires the service of a draft indictment on the Crown Court no more than 28 days after service of the evidence on which the charge or charges are based. We do not consider that this affects the fairness of the position. Whilst in the cases of these respondents the 15 count indictment was not served until about 4 months after service of the phone evidence, that evidence had been served in relation to the 82 count indictment and the separate indictment relating to MC, and the Crown had always indicated its intention to pursue counts against those respondents in relation to the making of indecent images on the same occasions as were revealed by the phone material.

We then turn to the cases of AM and JP. The situation here was somewhat different. They had appeared on the original indictment but it contained no indecent image counts. It was only after the failure of the first trial that the Crown charged them with such counts although the evidence supporting those counts had been served in the way described prior to the start of the first trial. These respondents had been due to be tried on indictments for contact offences following the first trial. In the light of the outcome of that trial the Crown could not proceed with those offences and indicated that promptly whilst at the same time indicating that it was considering bringing indecent image charges. The question is whether this was such an offensive course of action as to amount to an abuse. If it were to amount to an abuse, it seems to us it would have to fall into that category which states that it would be unfair or unconscionable to have a trial.

We are not persuaded that these cases fall into that category. There had been no assurances or action taken by the Crown to indicate that it would not proceed against these respondents. There had not been significant delay. There was always going to be a trial of these respondents in relation to what took place concerning L on specific occasions alleged. The Crown had served evidence of the phone material in relation to that at an early stage. In the light of the outcome of the first trial we consider that it was not abusive behaviour for the Crown to modify the way it put its case against these respondents arising out of the same incident and relying upon evidence which had already been served. Whilst the phone evidence might have been used as supporting material on the contact counts as originally envisaged, it could now found charges in its own right. These respondents had, of course, not faced any trial so there is no question of the Crown having a second bit of the same cherry in that sense. For these reasons we are unpersuaded that the judge was right to hold that this strand of the argument amounted to an abuse of process.

It follows therefore that we are satisfied that the judge’s ruling on abuse was wrong in law and/or was one which was not reasonable for her to have made. We give leave to the Crown to bring this application in relation to PW, PC, LD, AM, JP and MC. Pursuant to section 67 we reverse that ruling and order that proceedings be resumed in the Crown Court on count 1 against PW and PC, on count 5 against LD, on count 10 against AM, on count 11 against JP, and on count 15 against MC. It will be understood that we have ruled on the question of the stay for abuse. Nothing we have said affects matters which are properly to be the province of the trial which will take place. Matters such as dismissal of charges, joinder of counts or indictments and amendment of counts, section 78 applications, submissions of no case, and directions to a jury will all be matters for the trial judge, as will other matters of law. We order the acquittal of BC and PQ on counts 9 and 12 respectively.

Before we leave this matter we wish to express our recognition of the difficult position in which this judge was placed. This was a complex case. She had a myriad of submissions made to her and may not have had all the help she should have had.