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 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT NORWICH HIS HONOUR JUDGE SHAW T20227163 CASE NO 202304297 A2 | [2024] EWCA Crim 1129 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LADY JUSTICE MACUR
MR JUSTICE CHOUDHURY
MR JUSTICE FREEDMAN
REX
v
GAVIN LEE McNAUGHTON
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_________
MS JULIET DONOVAN appeared on behalf of the Appellant
MS LORI TUCKER appeared on behalf of the Crown
_________
J U D G M E N T
NOTE – THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981. IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.
LADY JUSTICE MACUR:
This is a case in which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as victims of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.
We also make clear that this judgment may also be subject to an order made pursuant to s.4(2) Contempt of Court Act 1981, postponing publication of any report of these proceedings until the conclusion of the retrial, in order to avoid a substantial risk of prejudice to the administration of justice in these proceedings.
On 24 August 2023 Gavin Lee McNaughton ("the Appellant") was convicted of indecent assault, contrary to s.14(1) Sexual Offences Act 1956, a specimen count particularised as multiple incidents of digital penetration of the vagina between 6 May 2002 and 1 May 2004; sexual assault of a child under 13, contrary to s.7(1) Sexual Offences Act 2003, the specimen count particularised as "at least 2 occasions of touching the vagina between the 30th day of April 2004 and the 7th day of September 2005"; and assault of a child under 13 by penetration, contrary to s.6(1) Sexual Offences Act 2003, a specimen count particularised as "at least 2 occasions, digital penetration of the vagina between the 30th day of April 2004 and the 7th day of September 2005". The complainant at the relevant times was aged between 7 and 10. The Appellant would have been between 13 and 16 years old.
The Appellant was acquitted of an offence of indecent assault, particularised as him having placed his erect penis on the complainant's leg between 6 May 2002 and 1 May 2004, and had previously pleaded guilty on 6 October 2022 to an offence of indecent assault, contrary to s.14(1) Sexual Offences Act 1956, a specimen count that charged between 6 May 2002 and 1 May 2004, on at least 10 occasions, he indecently assaulted C1 by touching her vagina, on a basis of plea that "over 6 months to a year, between 2002 – 2003 when I was 13/14 years old, I entered [C1’s] bedroom two times a week at night and touched her vagina when she was on her back and pretending to be asleep". The complainant at the time of this particular set of circumstances would have been between 7 and 8 years old.
After trial and conviction, he was sentenced to a total of 28 months' imprisonment, made up of 28 months concurrent for the offences of digital penetration; 12 months concurrent for the sexual assault; and 9 months for the indecent assault to which he had pleaded guilty. Other usual ancillary orders were made.
The case obviously involved allegations of historical sexual abuse, which had been reported to the police in February 2021. It is unnecessary to reproduce the details of the allegations here, which are adequately summarised in the particularisation of the counts of the indictment as indicated above. The Appellant and complainant were living in the same household at the time of the events so depicted. The complainant said the abuse ceased when the Appellant left home. She had disclosed the abuse to her parents thereafter when she was about 10 years old.
The defence case was that there was some sexual abuse, in the form of touching the complainant's vagina, as admitted by his plea, but it was of a more limited nature than the complainant's account, and that there had never been any digital penetration of the complainant's vagina.
The only detail of the evidence that it is necessary to record herein is the complainant's evidence that she was regularly taken to see her GP because she would get thrush and her vagina would become so sore that the pain would wake her up at night. Her mother confirmed this detail in evidence, saying that the complainant was taken to the doctor because her vagina was visibly red and sore. The doctor had suggested that it was because the complainant's "body was producing too much yeast". There was, however, no medical evidence adduced at trial regarding the medical condition, in general or particular - this despite the fact that it transpires that the prosecution were in actual possession of medical records, albeit Ms Tucker says not disclosed to her until late in the day.
In summing up the case to the jury, the trial Judge said:
"Well [C1] told you she was regularly taken to see her GP because she got thrush so often when she was too young to be getting it that often, or even at all. 'It was sore,' she said, and it used to wake her up at night. And in this context, Miss Donovan said to her that she was lying about everything, except that limited admission that [the appellant] has made. [C1] said, 'I wasn’t. I wouldn't be at court giving evidence, if I was,' she said. 'And furthermore,' she said '... seven-year-olds don’t get severe thrush.' That’s the sort of thing you bring your collective wisdom, judgment and experience with you for. Those of you who have been a seven-year-old girl or have seven-year-old daughters or granddaughters or know people who have, that is something that you will have to consider whether seven-year-old girls do, in fact, get severe and regular thrush.
[C1's mother] said [C's] vagina was visibly sore and red and the doctor suggested that it was because her body was producing too much yeast. [C1] was itching a lot and it wasn’t and it was reoccurring. [C1's mother] said it just wouldn’t go away. [The Appellant's] evidence was that he denied causing these issues and he said there were times when there was no toilet roll at home and they all had to use towels to wipe themselves.
Asked if he was aware that [C] was taken to the doctors, [the Appellant] said no. You may think, members of the jury, this issue of [C] having thrush, aged seven, is a very significant issue. You might want to ask yourself how that occurred. Is the likely explanation she got it because she was being digitally penetrated or is there some other explanation, as the defendant says there was? Of note, you might think, the defendant’s explanation that it could’ve been caused by the lack of toilet roll at home and the use of towels was not something that [C1's mother] was given the opportunity to deal with when she was cross-examined. That alternative was not put to her." [emphasis added]
During their deliberations thereafter, the jury sent a note:
"Do you have dates and length of diagnosis of thrush?"
In answer, the judge said -- correctly, we observe -- that it was not a question he could answer. He went on:
"And so I'm going to have to ask you to continue with your deliberations without that."
The Appellant was convicted of all matters, save in relation to count 1, to which we have already referred.
He appeals against conviction with the leave of the Single Judge on the ground that:
"The Judge in his summing up made a highly prejudicial comment in favour of the prosecution by says 'what 7-year-old do you know, members of the jury who has had thrush?' It is submitted that the Judge should not have shown that bias in the face of what was speculative evidence at best.
It is submitted that a comment such as this on an essential part of the evidence rendered the conviction unsafe. "
Ms Donovan represents the Appellant. Ms Tucker represents the Respondent. In a Respondent's Notice she contends:
"The judge in his summing up and written directions to the jury made it clear that the facts were for the jury alone.
...
Given the allegations made, a proper, common sense, conclusion that the jury was entitled to draw from the evidence was that the ultimate cause of the ‘sore’ ‘red raw’ vagina suffered by [C] was the repeated digital penetration inflicted upon her by the appellant.
In this case it is submitted that the directions given to the jury were clear, concise, and wholly sufficient to secure a fair trial and to ensure that there was no adverse speculation as against the appellant."
She cites the case of Digby [2020] EWCA Crim 1815, although, as we indicate below, this does not assist the Respondent's case.
In oral submissions before us, Ms Tucker suggests that the only deficiency or irregularity in the Judge’s summing-up was the use of the word "thrush". The evidence that the complainant was suffering with a red raw and sore vagina throughout the relevant period, was admissible evidence since the symptoms could corroborate the alleged digital penetration. We interpolate that, if this is correct, the prosecution would have been obliged to disclose to the Defence the medical records that showed that the complainant had been diagnosed with thrush which produced the same symptoms.
Discussion
In her Advice and Grounds of Appeal Ms Donovan indicates:
"In my speech to the jury I asked them to ignore the medical evidence as it was mere speculation and there was no medical evidence to say if her red and sore vagina had been caused by a yeast overload and itching as confirmed by [C1's mother] or by [the Appellant] whom she said touched and penetrated her every night. No doctor was called to say either way so it was speculation as to what had caused [C's] vagina to be red and reminded them that it was the duty of the Crown to prove to them, so they are sure and that there was no expert evidence on this point to make them sure her sore vagina was caused by [the Appellant]. No one mentioned the fact that, had there been any interference, the doctor would or might have noticed that at the time."
We are somewhat surprised that there was no objection to the admissibility of the evidence that the complainant suffered with thrush in the absence of any medical or other expert evidence as to causation and incidence at the relevant age under consideration here. The danger of its admission before the jury is highlighted by that part of the summing-up that we highlight above. The Judge was directing the jury to assume an expertise that was not common to them by asking questions such as "whether seven-year-old girls do in fact get severe and regular thrush" and that "you might want to ask yourself how that occurred". The Judge was either giving non-expert opinion evidence or else drawing the jury into speculation, neither of which was permissible. Simply put, there was no credible forensic foundation to do so. This issue required expert evidence to be led if the prosecution sought to rely upon it.
What is more, we agree that the commentary clearly indicates partiality:
"This issue of [C] having thrush, aged seven, is a very significant issue ... Is the likely explanation she got it because she was being digitally penetrated or is there some other explanation, as the defendant says there was?"
It was not balanced by reference to the Appellant's suggestion of poor hygiene as the root cause of the medical condition, nor is it saved by directing the jury that the facts were for the jury alone. Frankly, it appears to us that the Defendant, put on the spot, gave the best answer he could. Even if she had have received instructions to do so, Ms Donovan’s challenge of the complainant's mother regarding poor hygiene at home would be in a vacuum of expert evidence.
In Digby this court reviewed the principles to be applied when considering a complaint of judicial impartiality in summing up the facts of case in reference to the authorities R v L [2020] EWCA Crim 332 at [39] to [44], Reynolds [2019] EWCA Crim 2145 and Haddon [2020] EWCA Crim 887 at [12]. The principle to be derived from these authorities may be stated quite simply: the judge must remain and be perceived to be impartial. This does not mean that he/she is unable in their review of the evidence to indicate and comment on evidence that supports or undermines the case for the prosecution or defence. Neither is the judge required to seek to bolster a weak case, nor moderate a strong case. However, the judge must remain above the fray. They should not trespass upon the role of the jury to draw conclusions on the facts, nor express a personal view which can "constitute the appearance of advocacy on behalf of the prosecution ... [which] ... will not necessarily be regarded as appropriate simply because the jury had been told that they are not bound to accept the judge's views or by the use of the timeless refrain, ‘it is a matter entirely for you’". However, we do not consider that this is a full-square Digby case. The jury were not legitimately entitled to draw a conclusion from the evidence presented in this case that the causation of thrush was related to digital penetration. That should have been the clear direction given by the Judge.
The taint extends beyond the counts concerning digital penetration. We have no hesitation in quashing the convictions after trial, namely on counts 2 to 4 of the trial indictment, as unsafe.
Ms Tucker, we will want the answer to the question we posed to you. Once we have that answer then we can go on to consider the appeal against sentence in relation to what was count 2 -- is that correct, Ms Donovan?
Discussion as to retrial and consequent directions.
JUDGMENT ON RETRIAL APPLICATION
LADY JUSTICE MACUR:
In this case, we having allowed the appeal against conviction of Gavin McNaughton, application is made by the prosecution for retrial. It is said that there is evidence, quite apart from that which we have seen and expressed to be inadmissible, of serious offences having occurred and that it is in the public interests to proceed notwithstanding that the Appellant has served a considerable part of the sentence imposed. (Ms Donovan submits that he has served 8 months -- we think it may be rather more -- in which case it is the equivalent of either 16 months or 20 months. ) That matter aside, we agree with Ms Tucker that this is an issue of some public importance and in those circumstances we intend to order a retrial.
Therefore we give the following directions.
We allow the appeal against conviction.
We quash the convictions in relation to counts 2, 3 and 4 of the trial indictment.
We order a retrial on those counts.
A fresh indictment is to be served in accordance with CrimPR 10.8(2), which requires a draft indictment to be served on the Crown Court officer not more than 28 days after this order.
We direct that the Appellant be re-arraigned on the fresh indictment within 2 months thereafter.
In addition, we direct that the venue for retrial should be determined by the presiding judge of the circuit.
We direct that the Appellant be released on bail.
That means, Mr McNaughton, that you will be required to attend trial on the Crown Court as and when directed for arraignment. If you fail to do so, you will be committing a criminal offence, for which you may be prosecuted.
THE DEFENDANT: (The defendant nodded.)
LADY JUSTICE MACUR:
There is already a transcript of the sentencing remarks.
We direct, as we indicated, an order pursuant to s.4(2) Contempt of Court Act 1981, which will restrict reporting of these proceedings until after the conclusion of the retrial.
THE CLERK OF THE COURT: Mr McNaughton was on bail at trial and those were the conditions (Indicating).
LADY JUSTICE MACUR: (Same handed) Thank you very much.
We make as a condition of the bail that condition which was in place prior to trial.
That is, Mr McNaughton, you must not contact directly or indirectly the complainant or any other witness in the case; you understand?
THE DEFENDANT: (The Defendant nodded.)
LADY JUSTICE MACUR: Ms Donovan, we need to tell you that your legal aid will not cover a retrial. You must now apply in writing for the legal aid to be re-provided, as it were.
MS DONOVAN: Okay.
LADY JUSTICE MACUR: The address can be provided to Mr Mariani. You must make that application immediately, obviously, in order that Mr McNaughton can be represented on arraignment and subsequently.
MS DONOVAN: Certainly.
THE CLERK OF THE COURT: My Lady, there is a technicality: Mr McNaughton is released on bail, is it going to be the same address where he was on bail at trial, which is on the form? Because if it is not, any other bail address will have to be verified before he is released and the court needs to clarify.
…
LADY JUSTICE MACUR: What we will do then is we will order through you Ms Donovan that Mr McNaughton provides the address to which he will be bailed. That will then be checked by the police forthwith. Subject to there being no objection to the appropriateness of that address then the Appellant will be released to it.
LADY JUSTICE MACUR: Ms Donovan, there is still an outstanding appeal against sentence.
MS DONOVAN: There is.
LADY JUSTICE MACUR: But it cannot proceed, can it? I know it will relate also to count 2.
MS DONOVAN: Yes, it is the 9-month imprisonment.
LADY JUSTICE MACUR: Yes, but he is to be retried. If he is convicted --
MS DONOVAN: Yes.
LADY JUSTICE MACUR: -- then obviously his sentence must be looked at as a whole.
…
LADY JUSTICE MACUR: We adjourn the appeal against sentence in relation to plea.
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