Grahame Brennand v R

This is the judgment of the Court, substantially prepared by Nicklin J.

The provisions of s.1 Sexual Offences (Amendment) Act 1992 apply to most complainants mentioned in this judgment. Under those provisions, where a sexual offence has been committed against a person, that person is entitled to anonymity and, during that person’s lifetime, nothing can be included in any publication that is likely to lead members of public to identify that person as a victim of that offence.

In February 2018, at the Crown Court in Preston, the Applicant was convicted of 17 counts of indecent assault, contrary to s.14(1) Sexual Offences Act 1956. At the first trial, the jury was unable to reach verdicts on 33 further counts. Following a retrial, at the same court, on 28 September 2018, the Applicant was convicted of a further 26 counts of indecent assault and 3 counts of cruelty to a person under 16 years-old, contrary to s.1(1) Children & Young Persons Act 1933. On 12 October 2018, the Court imposed sentences of imprisonment the combined effect of which was the imposition of a total sentence of 16 years’ imprisonment with an extended licence period of 3 years. At the date of sentence, the Applicant was 71 years old.

On 10 November 2022, the Applicant lodged an application seeking leave to appeal his conviction. The application was supported by an Advice by new Counsel. The necessary further application for an extension of time - some 3 years and 9 months after the Applicant’s first conviction - was supported by the witness statement of the Applicant’s solicitor, Peter Turner, dated 3 November 2022, which sought to explain the delay.

Given the substantial delay, the application for leave to appeal was referred to the full Court by the Single Judge.

Given the scope of the applications before the Court, the facts can be stated as follows.

Between 1973 and 1989, the Applicant had been a teacher at a primary school in Baxenden, Lancashire. He had taught children in their final year of primary education, aged 10 to 11 years.

In July 2016, a former pupil at the school made a complaint to the police alleging indecent assault by the Applicant. As part of their investigation, the police spoke to several other former classmates of the original complainant and appealed for others to come forward if they had any relevant information. In consequence, several further complainants and witnesses came forward. The Applicant was charged with multiple counts of indecent assault on a total of 25 women, all of whom gave evidence for the prosecution at the Applicant’s trials. There were also complaints by two men of alleged cruelty.

The evidence of the complainants at trial can be summarised as follows:

Several other witnesses, called by the prosecution, gave evidence corroborative of the complaints.

The Applicant’s case was that the allegations were false. He denied all allegations of indecent assault and stated that, during his teaching career, he had no more than ordinary and lawful physical contact with his pupils; accordingly, he denied, in their entirety, the complaints against him.

The Applicant further denied allegations of cruelty. He accepted he was a strict disciplinarian but asserted that, when he was a teacher in the 1970s and 1980s, physical chastisement was not only permitted, it was regarded as acceptable. He used physical intervention as a last resort following serious misconduct on the part of the pupil; that usually amounted to no more than a slap with an open hand to the back of a bare leg.

The defence submitted that the allegations of the complainants were fabricated and completely implausible. The defence submitted that it was impossible that the sort of persistent and blatant behaviour alleged would have gone unchallenged for so long. The witnesses were lying. There had been plenty of opportunities for collusion and/or collaboration between the witnesses to make up the allegations.

In the usual way, the Judge shared his proposed written directions of law for the jury with Counsel at the trial. We were told that they were the subject of discussion with Counsel, and some refinement, before being given to the jury. No complaint was made by trial counsel for the Applicant either before or after the directions of law were given to the jury. The court has been provided with the directions that were given in the first trial. No point has been taken by the Applicant that the judge’s directions were materially different in the second trial.

The written directions contained the standard directions, including directions as to the burden and standard of proof. No complaint is made about these directions. The particular directions sought to be challenged by the Applicant are as follows (emphasis in the original document with paragraph numbers added in square brackets):

The Judge gave substantially the same directions he had given the jury in writing in the first part of his oral summing-up. Indeed, in his oral summing up, the Judge emphasised the direction he had given in [21] by adding:

“So please don’t think that Mr Brennand has to come before you and give a proper or satisfactory explanation as to why they are making these false claims. He doesn’t; it works the other way. The prosecution has the burden from first to last, remember.”

The issue sought to be raised in the Application for leave to appeal principally concerns cross-admissibility of evidence; the way in which the jury could use the evidence of one or more complainants in relation to other counts on the indictment. The Applicant complains that the trial Judge misdirected the jury on this issue. Further, and related to the cross-admissibility issue, the Applicant contends that, in his directions – under “the ‘Why?’ question” – the Judge gave the impression to the jury that it was for the Applicant to explain why so many complainants had come forward making what he claimed were false allegations of indecent assault against him; thereby reversing the burden of proof.

On the first point, Mr English’s submissions are that this was not a case where the evidence in relation to one count was “much stronger” than another and, accordingly, this was not one of the “rare cases” where the jury should have been directed to consider both propensity and coincidence. In the alternative, if it was appropriate to direct the jury both as to propensity and coincidence, then the Judge had not properly directed the jury to avoid ‘double counting’.

In relation to his second point, Mr English argued that the Judge’s directions as to the ‘why?’ question (see [16]-[21]), would have left the jury with the impression that the Applicant was required to give an explanation as to why the complaints had been made, thereby practically reversing the burden of proof. This direction, it is argued, should not have been given.

Mr English also raised the point that the Crown had made no bad character application in respect of the cross-admissibility of evidence.

As noted, the Applicant would need a substantial extension of time to bring his application for leave to appeal. The explanation, put forward in the evidence and submissions on his behalf, is that the Applicant was given oral advice as to the prospects of an appeal (including an appeal against conviction) by his trial Counsel following his sentence. Thereafter, at some point in 2020, Lancashire County Council had contacted the Applicant to advise that several of the complainants in the criminal proceedings had threatened (or commenced) civil claims against him and the Council.

A friend of the Applicant had contacted the Applicant’s present solicitors in March 2020. As a result, the solicitor, Mr Turner, had made an appointment to visit the Applicant in prison on 26 March 2020. However, on 23 March 2020, as a result of the pandemic, all prison visits were suspended. For the remainder of 2020, the solicitors made efforts to contact the Applicant by telephone and by letter. On 17 November 2020, Mr Turner received written authority to obtain his file from his former solicitors. A prison visit was finally arranged for 13 April 2021, however no private conference facilities were available and so little was achieved during the conference.

Transcripts of the relevant parts of the trial were requested by the Applicant’s solicitors on 30 May 2021, and subsequently received on 24 June 2021. A further prison visit took place on 10 August 2021, but the conditions were the same as the first visit. Mr Turner submitted a complaint about the unsuitability of the facilities for legal visits offered at the prison was sent to the prison governor on 15 October 2021. After further correspondence, on 3 February 2022, the request for a private solicitor/client meeting was refused on the grounds of “social distancing”. A further visit was arranged for 1 March 2022, but this had to be cancelled because Mr Turner was unwell. During his convalescence, the case was referred to Counsel on 11 March 2022.

A meeting was arranged between Counsel and the Applicant on 11 June 2022 at which the Applicant provided a folder of further material. A further conference took place with Counsel, on 27 October 2022, before the application for leave to appeal, dated 10 November 2022, was submitted to the Court of Appeal.

Mr English acknowledged that the Applicant was seeking a significant extension of time, but he argued that the interests of justice would be served by permitting the Applicant to apply for leave out of time.

Extension of time

In R -v- Paterson [2022] EWCA Crim 456, the President of the Queen’s Bench Division set out the principles the Court of Appeal will apply when considering an application for an extension of time:

The delay in the Applicant’s case is very substantial. Although we accept the evidence of Mr Turner as to what happened between the Applicant’s conviction after the second trial, in late September 2018, and the submission of the Notice and Grounds of Appeal in November 2022, the explanation cannot begin to justify a delay of this length. Undoubtedly, the pandemic generally, and the restrictions it placed on prison visits, particularly, presented challenges for the Applicant’s solicitors and impaired their ability to get full instructions from the Applicant. We also accept Mr English’s submission that the Applicant’s legal advisors needed to consider, and advise upon, all points raised by the Applicant as potential grounds of challenge in any appeal. Nevertheless, the reality is that the grounds now advanced are straightforward. They rely upon alleged errors in the trial judge’s directions to the jury. The transcript of the Judge’s summing up was available to the Applicant and his solicitors from late June 2021. The application for leave to appeal was not lodged for a further 16 months. Judged simply on the extent of the delay and the reasons put forward to explain it, we would have refused the extension of time.

Mr English submitted that, notwithstanding this significant delay, the Court ought nevertheless to hear the Applicant’s application for leave to appeal because, if there has been an error, justice requires that it be corrected. As made clear in Paterson, simply demonstrating an arguable case on the merits is not a “trump card” that can overcome even substantial delay. As reflected in the judgment quoted above, the time limit on applications for leave to appeal is not imposed arbitrarily or for simple administrative convenience. Principally it is a measure designed to secure the proper administration of justice; it reflects the important principle of finality in litigation. Substantial delay in making an application for leave to appeal also risks impairing the Court’s ability to do justice. In this case, trial Counsel was asked for his observations on the Applicant’s grounds. Perhaps understandably, the advocate was unable to provide much by way of assistance because of the substantial period that had elapsed and was only able to offer that there did not appear to be anything factually incorrect in the grounds that were being advanced.

Nevertheless, there may, exceptionally, be appeals sought to be brought where the ground(s) advanced are of such cogency that the court is satisfied that it would be contrary to the interests of justice not to allow the substantive appeal to be argued. In such exceptional cases, the Court may grant the necessary extension of time, notwithstanding that no satisfactory explanation for a significant delay has been given. Having considered the points argued on the Applicant’s behalf, we are satisfied that the present case is emphatically not such a case.

Leave to appeal

We can deal with the complaint about the lack of notice by the prosecution that they were seeking to rely on cross-admissibility quite shortly. This ground has no real prospect of success. In fairness, Mr English did not press this ground in his oral submissions.

It is, of course, correct – and Mr Kellet does not argue otherwise – that, where the prosecution seeks to rely, by way of bad character, upon one count as being cross-admissible in relation to another, the prosecution must give notice of a bad character application under Crim PR, Rule 21.1: R -v- BQC [2021] EWCA Crim 1944 [21]. This requirement is not merely technical: R -v- Gabbai [2020] 4 WLR 65 [83]. Nevertheless, the mischief that the notice requirement is seeking to avoid is the defence being taken by surprise by the prosecution seeking to rely upon cross-admissibility between counts on the indictment. In this case, the nature of the allegations, and the evidence relied upon by the prosecution, meant that it was common ground, from the outset, that issues of cross-admissibility would arise. The matter was thoroughly and properly addressed before summing up and speeches and, as we have found, the Judge gave appropriate and clear directions to the jury. No one was taken by surprise. We are satisfied that, in this case, there is no substance in the complaint about the lack of a bad character notice. There has been no unfairness caused to the Applicant and it is not arguable that the failure to serve the relevant notice undermines the safety of his convictions.

In his directions on cross-admissibility, the Judge gave both the coincidence direction and the propensity direction. In his written grounds, Mr English had contended that this was not one of the “rare circumstances” where the jury should have been directed to consider both. In his oral submissions, he modified this position and accepted that, on the facts of the case, it was appropriate to give both directions. He nevertheless contended that the Judge had failed to give the jury a clear direction on avoiding “double counting”.

Apart from the “double counting” issue, the Applicant makes no complaint about the terms of the directions given by the Judge on propensity and coincidence. As to the circumstances in which both directions should be given, the current version of the Crown Court Compendium (which we appreciate is not the version available to the parties and the Judge at the trial) (“the Compendium”) states (§13-9) (footnotes omitted, emphasis in the original):

“In some rare cases it may be appropriate to direct the jury that the evidence that is cross-admissible is capable of being used for propensity type reasoning and to rebut coincidence. The leading case is N(H) [2011] EWCA Crim 730. Care should be taken by the judge before giving both directions. It is important to avoid double accounting – i.e. the jury cannot use evidence from count 1 to rebut coincidence that D committed count 2 and then, having become sure of guilt on count 2, use that as propensity evidence to convict D on count 1. The issue of whether it is appropriate for both limbs of the direction to be given was considered in BQC [2021] EWCA Crim 1944. The court stated that where such was to be done what was needed was a ‘clear, concise and well-tailored direction’. The court further identified that for a jury to follow such a direction they needed ‘a clear written document to assist’.”

The reference to “rare cases” in §13-9 reflects the decision in R -v-N(H) in which Pitchford LJ stated that, “it will be in rare circumstances, if at all, that the jury might be directed to consider both [propensity and coincidence] in the same case” ([31]).

We express considerable reservations about these remarks. Whether, in an individual case raising issues of cross-admissibility, directions on propensity and/or coincidence are required is for the trial judge to determine on the facts of the case. There is no legal principle that should preclude a judge, in an appropriate case, giving both directions, and nor should it be taken that N(H) is laying out some legal requirement of exceptionality before this can be done. Ultimately, the decision as to the appropriate directions to give depends upon the facts of the particular case. We would note that this also appears to be the view of the editors of Archbold, who observe (§13-52): “In theory, there appears to be no good reason of principle why the prosecution should not be able to argue a case of this sort using both coincidence and propensity.”

In some cases, where there are several complainants and a number of complaints, the judge may properly consider that no direction on either propensity or coincidence is appropriate and that jury should simply be given the separate consideration direction (see R -v- Adams [2019] EWCA Crim 1363 [18];R -v- Cloud [2022] EWCA Crim 1668; [2023] 1 Cr App R 19 [27]-[28]). In others, where issues of cross-admissibility do arise, a direction on propensity but not coincidence may be appropriate. In others again, a direction on coincidence but not propensity may be appropriate. And there may be yet others where a direction both as to propensity and as to coincidence will be appropriate. As will be gathered, we take the view that the present was justifiably assessed by the trial judge to be just such a case.

The current version of the Compendium contains the following warning to judges who are considering whether to give both propensity and coincidence directions (§13-17):

“Depending on the evidence and issues in the case, a direction based on both propensity and coincidence approaches may be appropriate. However, such a direction is likely to be complex and, unless great care is taken, confusing. It is suggested that such a direction be given, if at all, only in cases where the evidence on one or more counts is significantly stronger than that on the other(s), and in which the jury might therefore convict on the stronger count(s) first, and then treat that as establishing a propensity on D’s part to commit offences of the kind charged in the other count(s). Examples would be where there is a recording of D’s committing one of the offences charged in the indictment; where one or more witnesses say that they saw D committing one of the offences charged; or where D is said to have confessed to committing one of the offences charged.”

R -v- Gunning [2018] EWCA Crim 677 is cited as the authority for this guidance. In Gunning, the Court also appeared to recognise that there was no requirement of exceptionality before both directions on cross-admissibility could be given and “plainly each case must turn on its own facts” ([23]). However, Spencer J did apparently endorse the proposition that both directions should be given “only” ([18]):

“…in cases where the evidence on one or more counts is significantly stronger than that on the other count which the jury may be considering, and that the jury should then have the opportunity to convict on the stronger count establishing propensity before considering the other count. In that event and to avoid the risk of impermissible double-counting, the propensity approach should be explained in the direction first, then the coincidence approach.”

With respect, the suggestion that a direction both on propensity and on coincidence may be justified, where one count is assessed to be significantly stronger than others, seems hard to accept. Not only might an assessment of the relative strengths of one count as compared to others on an indictment be invidious, but also it seems difficult to ascertain a principled basis for this approach in deciding whether to give a direction both on propensity and coincidence. Nor do we see any reason in law why, as is there suggested, a judge who gives such a direction should always be required to deal first with propensity and only then with coincidence. No doubt that may very well be a convenient approach, but it is not, in our opinion, to be taken as a legal requirement in all cases.

In our opinion, therefore, the approach to giving a direction on both propensity and coincidence is rather more open-textured than the restricted approach indicated in N(H) and Gunning might suggest. We note, in fact, that a rather broader approach was adopted in the case of BQC [58] and, as will be gathered, we agree with that approach. It may be, therefore, that the editors of the Compendium will wish to consider the guidance currently there given on this issue.

We revert to what we have said earlier. In the context of cross-admissibility, in many cases a direction on both propensity and coincidence will not be appropriate. Crown Court judges will be alive to not overloading juries with complex legal directions on matters not, in reality, calling for such directions. But in a case where potential cross-admissibility issues as to propensity or coincidence or both have been raised, the matter should be fully debated with counsel in the absence of the jury and appropriately tailored legal directions crafted accordingly. The overarching principle is that the jury must be given directions that are relevant to and reflect the particular circumstances in which questions of cross-admissibility arise in the case, not template directions without adaptation: R -v- Bailey [2017] 1 WLR 4545 [60]. In this respect, we do endorse the following advice from the Compendium (§13-14):

“In any case in which a cross-admissibility direction is contemplated, it is essential to discuss with the advocates in the absence of the jury and before closing speeches the need for and form of any such direction… [T]he jury will inevitably be assisted by some form of written direction.”

In cases in which the judge considers that issues of cross-admissibility arise, s/he may well think it prudent, therefore, to raise it with the advocates, in the absence of the jury, at an early stage of the trial. If the prosecution intends to open the case to the jury on the basis that, at the end of the evidence, the jury will be invited to consider issues of both propensity and coincidence, it would be prudent for the matter to be addressed right at the start of the trial to ensure that the parameters are clearly established.

As Mr English was inclined to accept, he cannot contend that, on the facts of this case, the Judge was not justified in giving the jury directions on both propensity and coincidence. No challenge is made to the terms of the directions that the Judge gave. It is unhelpful, and unnecessary, to perform any sort of analysis of whether this makes this case “rare” in the cohort of cases where cross-admissibility arises.

We have our doubts whether, in a case where the jury are to be directed as to cross-admissibility on both propensity and coincidence, (a) it is right to mandate that they must consider propensity first; and (even if, no doubt, that may be a convenient way of approaching matters) (b) that the specimen direction properly directs the jury as to their task and provides an effective warning about avoiding ‘double counting’.

In this respect, we note what the authors of Blackstone’s Criminal Practice say on the issue (§§F13.58-13.59):

“The underlying principle is that the probative value of multiple accusations may depend in part on their similarity, but also on the unlikely prospect that the same person would be falsely accused on different occasions by different and independent individuals. The making of multiple accusations is a coincidence in itself, which must be taken into account in deciding admissibility. As Lord Cross of Chelsea put it in DPP -v- Boardman [1975] AC 421 (at p.460):

‘… the point is not whether what the appellant is said to have suggested would be, as coming from a middle-aged active homosexual, in itself particularly unusual but whether it would be unlikely that two youths who were saying untruly that the appellant had made homosexual advances to them would have put such a suggestion into his mouth.’

Similarly, in Chopra [2006] EWCA Crim 2133, [2007] 1 Cr App R 16 (225) where the three young complainants each separately alleged that D, a dentist, had squeezed their breasts in the course of treatment, there was a sufficient connection to warrant cross-admissibility: the Court of Appeal noted that it was more likely to be true than if only one of them had said it, and was not persuaded by the argument that there were many more patients of D who had made no such allegation. See also Wallace [2007] EWCA Crim 1760, [2008] 1 WLR 572.

In directing the jury where evidence is cross-admissible under the provisions of s.101, it would be over-restrictive to suggest that the jury should first determine that they are satisfied in relation to one of the counts before moving on to use the evidence in relation to that count in dealing with any other. The jury, though obliged to reach a verdict on each count separately, may use admissible evidence in relation to any count, including the evidence of bad character arising from another (Freeman [2008] EWCA Crim 1863, [2009] 1 Cr App R 11 (137), disapproving comments in S [2008] EWCA Crim 544). In part the confusion may have arisen because of a perceived need to conclude that the accused has a propensity to commit such an offence (an inference dependent on the accused’s having done so on one occasion) before moving to consider another. However, the process of reasoning in cases such as Chopra does not depend on reasoning via propensity, but via coincidence, and is holistic rather than sequential (see McAllister[2008] EWCA Crim 1544, [2009] 1 Cr App R 10 (129)…).”

The facts of this case rather bear this out. The Judge adopted a hybrid approach to his directions on cross-admissibility. In his direction, he followed the Compendium (and Gunning) recommended practice of dealing first with propensity ([15][a]-[c]) and then coincidence ([15][d]-[e]). Although the Judge, in fact, directed the jury to consider propensity first (albeit not mandating them to do so), we are not at all convinced that he could have been criticised if, in this case, he had chosen first to deal with coincidence. There were 25 complainants alleging indecent assault. If the jury was sure that there was no manufacture or contamination, the fact of such a large number of similar allegations against the Applicant was admissible evidence that they could consider in deciding whether they were sure that he was guilty of one or more counts. As noted in the passage above from Blackstones, on the issue of coincidence, the approach is holistic not sequential. Insofar as Mr English complains about the absence of a specific direction to avoid ‘double counting’, he was unable to articulate what more the Judge should have said, on the facts of this case. We rather think that any further specific warning against ‘double counting’ would have risked directing the jury to approach their task in a sequential rather than holistic manner.

Overall, and despite Mr English’s thoughtful and helpful submissions, we are not persuaded that the Applicant has a real prospect that the Judge’s directions to the jury on cross-admissibility were such as to render the Applicant’s convictions unsafe. On the contrary, we consider that the Judge gave careful and clear directions on this issue specifically and appropriately tailored to the facts of the case. The ‘why?’ question was, to an extent, merely to repeat an element of that part of the cross-admissibility direction relating to coincidence. The Judge properly and firmly directed the jury that this did not alter the burden of proof, which remained on the prosecution, a point to which, as we have noted, he gave further emphasis in his oral directions.

For the reasons we have stated above, in all the circumstances, it would be contrary to the interests of justice to grant the extension of time sought. In consequence, the application for leave to appeal against conviction necessarily fails. The issues considered in this decision were fully argued and we give permission for this judgment to be cited notwithstanding this was an application for permission.