R v ASN

THE VICE-PRESIDENT: It sometimes happens that a criminal defence advocate suffers the forensic embarrassment of making an apparently cogent point in cross-examination, only to find that a prosecution document on which the point was based is inaccurate or incomplete. Such an experience is always a cause of concern for the defendant and the advocate, especially when care has been taken to check the accuracy of the document before asking the relevant questions. On an application being made to discharge the jury, however, the important question for the trial judge is whether the mistaken reliance on the document has caused unfair prejudice to the defendant, such that in all the circumstances of the case, he or she can no longer have a fair trial. On appeal to this court the important question is whether the events which have happened cast doubt on the safety of the conviction.

Such a situation arose in the trial of this appellant on charges of historical sexual abuse of three young girls, two of them his stepdaughters and the third his own daughter. Each of the complainants is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during their lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify any of the complainants as a victim of these offences. We shall refer to the complainants simply as "C1", "C2" and "C3". We shall refer to their mother as "CM". In view of the appellant's family relationship to the complainants, his name must be anonymised in any report of these proceedings by the use of the randomly-chosen letters "ASN".

It is unnecessary for present purposes to go into any detail about the allegations. The appellant was charged on 22 counts (most of them specimen counts) with offences including rape, attempted rape and indecent assault over a period between 2002 and 2013. Each of the complainants gave evidence that she had been sexually assaulted numerous times in various family homes and in vehicles. C1 was between 9 and 15 years old at the time of the offences against her. C2 was aged between 7 or 8 and 13 or 14. C3 was aged between 10 and 12. None of the three had made any contemporaneous complaint to her mother or to any person in authority.

The circumstances in which matters came to be reported to the police were as follows. The appellant and CM separated in late 2017. CM petitioned for divorce, and a decree nisi was granted to her in April 2019. On 30 July 2019 an issue arose over the appellant's contact with the youngest child of the family. C1 made comments to the appellant which prompted CM to ask both C1 and C2 whether they had been sexually assaulted by their stepfather. Both said that they had. C3 made no disclosure at that stage but did so to her mother about 2 months later.

The appellant's defence at trial was that none of the alleged abuse had happened, and that the allegations had been maliciously instigated by CM in the hope that she would be awarded a greater share of the matrimonial assets.

The mobile phones of the appellant and of CM were examined by the police. The results of that examination were disclosed to the defence in a schedule of "phone examination reviews".

At the trial before HHJ Walters and a jury, in the Crown Court at Swansea, each of the complainants gave evidence in chief by way of video-recorded interview and was cross-examined. CM then gave evidence. In the course of cross-examination Ms Powell – then, as now, representing the appellant – questioned CM about text messages which she had sent to the appellant's mobile phone in the course of an evening in July 2019. In those messages, CM had accused the appellant of being a child abuser and threatened to have him locked up for what he had done to her daughters. The appellant had not sent any message in reply.

The schedule of phone examination reviews listed the messages as having been sent on 25 July 2019, several days before the events which were said to have led to the first disclosures by C1 and C2 on 30 July. On the face of it, therefore, the messages provided a basis for cross-examination supportive of the appellant's case that false allegations had been made at the instigation of CM. Ms Powell, very sensibly, took the precaution of checking and checking again the date in the schedule with the officer in the case. The officer confirmed, more than once, that the schedule was accurate. Thus encouraged, Ms Powell pursued her cross-examination. CM agreed that she had sent the messages, but denied having done so before 30 July 2019.

At the end of that day's hearing, prosecution counsel – then, as now, Mr Philpotts – was informed that the police officer who had compiled the schedule had made a mistake. The relevant text messages had in fact been sent by CM on 30 July 2019. On the following morning, Ms Powell applied to discharge the jury on the basis that the error in the schedule had led her to cross-examine in a way which she would not have done if she had known the true date of the messages. The judge wisely deferred any decision so that a full download of the information from the relevant phone could be checked. The jury were sent home, and no further evidence was heard by them whilst that check was taking place. In the result, the check confirmed, and it became common ground, that the messages were indeed sent on 30 July 2019. Ms Powell then made her submissions in support of her application. The judge ruled that no injustice had been caused to the appellant by what was plainly just a mistake. The defence case had always been that the mother had set the complainants up. Ms Powell had thought she had what the judge described as "a powerful further weapon in her armoury in suggesting to the mother that she was responsible for this set up" but she would in any event have put the same case to the witness without the benefit of that point. The judge accordingly declined to discharge the jury.

The trial therefore proceeded. Mr Philpotts was invited by the judge to explain to the jury that a mistake had been made and he duly did so. The jury were directed by the judge not to hold the fact that Ms Powell had put that suggestion to the witness against either the appellant or indeed Ms Powell.

The remaining prosecution evidence was called, and the appellant gave evidence in his own defence. The judge when summing up expressly refrained from taking the jury to any of the text messages in the bundle which was before them. He again reminded the jury that "through no fault at all of anyone other than the police officer who mistyped this information on this document" the messages were not sent on 25 July as had been thought. He said that the jury would remember Ms Powell questioning CM about how she could have been accusing the appellant of being a paedophile when nobody had at that point made any complaint. The judge continued:

The jury convicted the appellant of all the offences charged. We need not refer to the sentences imposed, which are not challenged.

By leave of the single judge, the appellant now appeals against his convictions. His grounds of appeal contend that the judge was wrong to refuse to discharge the jury.

Ms Powell submits that the judge was wrong to view what had happened as merely "a mistake" which had been corrected before the jury. She argues that she would not have the text messages in evidence at all if she had not been misled, and that the effect of what happened was to bolster the credibility of CM and thus to diminish the credibility of the appellant. Ms Powell submits that although not a witness as to the facts of the alleged abuse, CM was nonetheless a very important witness in the case because it was she who was alleged to have instigated false allegations. Thus, the point being raised in cross-examination was not, she submits, merely peripheral: it went to the heart of the matter. Ms Powell submits that there was a material irregularity in the trial which could not be cured by judicial direction. She further submits that the way in which the jury were directed by the judge unfortunately served only to highlight the point that CM had been vindicated and her evidence shown to be correct on that issue. On those grounds Ms Powell submits that the convictions are unsafe.

Mr Philpotts submits in response that the judge's ruling was correct. He points out that the evidence of sexual offending was given by C1, C2 and C3, not by CM, and that the text messages were not evidence supportive of the factual allegations. He submits that no unfair advantage was taken of the error by the prosecution: the effect of correcting the error was simply to prevent the jury proceeding on an inadvertent mistaken basis. He argues that the appellant was left in no worse a position than he would have been in if the mistake had not been made. Mr Philpotts took us through a number of aspects of the defence case which were fully deployed before the jury. He acknowledges that the prosecution case was not entirely without difficulty.

We are very grateful to both counsel for their admirably clear and focused submissions. Having reflected upon them, we reach the following conclusions.

As we have indicated, the judge had to decide whether counsel's reliance on a prosecution document which was in fact incorrect had caused unfair prejudice to the appellant, such that he could no longer receive a fair trial. Such a decision is necessarily dependent on the facts and circumstances of the case. Important factors in this case were first, that the error in the schedule was simply a mistake by the police officer concerned, there being no suggestion of any deliberate misleading. Secondly, that the mistake was almost immediately identified and was rightly corrected when the jury next came into court. There was therefore no risk that an uncorrected mistake could have affected their assessment of later evidence. Thirdly, that the judge at the same time explained in sympathetic terms why counsel had acted perfectly properly and directed the jury not to hold it against the appellant that CM had been questioned on what had subsequently been identified as a mistaken basis. Fourthly, that the cross-examination about the text messages came after the complainants had given their evidence and been cross-examined, and was an additional point in support of the appellant's case, not a different line of defence. Fifthly, that the response of CM to that cross-examination involved no departure from or addition to her consistent denial of having instigated the making of false allegations. Sixthly, that the appellant was able to give his own evidence without any difficulty or embarrassment as a result of the mistake. Seventhly, that the mistake was a discrete point in the case, and the necessary correction of it merely prevented the jury from proceeding on an erroneous understanding. It did not affect the overall conduct of the appellant's case.

In those circumstances, the judge was entitled, and in our view correct, to conclude that the appellant could continue to have a fair trial, and accordingly to refuse the application to discharge the jury. Like the judge, we sympathise with Ms Powell, who was put into a difficulty through no fault of her own. We accept of course that she would not have cross-examined CM about the text messages if she had not been misled, and we understand why it may seem to the appellant that he has been prejudiced by the making of an apparently powerful point which was quickly found to be based on mistaken information. We are satisfied, however, that this aspect of the cross-examination did not affect the overall conduct of the defence case, and that any prejudice could be, and was, avoided as a result of the clear directions given by the judge both at the time of explaining the mistake to the jury and in his summing-up. The jury could be expected to obey those directions, and there is no reason to think that they did not do so.

We are therefore unable to accept the submissions that the judge fell into error and that the convictions are for that reason unsafe. We would add that the evidence given by the complainants was compelling and provided a clear basis for the convictions. Grateful though we are to Ms Powell, who has presented this appeal as skilfully as could be done, the appeal accordingly fails and is dismissed.